End User Licence Agreement
This end-user licence agreement (“EULA”) is a legal agreement made between you and MyCognition Limited, a company incorporated in the UK with company number 07875247 and registered office 25 Moorgate, London, EC2R 6AY (“us” or “we”) in relation to your use of the software application to which this EULA relates (the “App”).
By downloading the App (or where applicable by clicking on the “ACCEPT” button, tick-box or other form of acceptance) you agree to the terms of this EULA, which will be binding on you. You should print a copy of this EULA for future reference.
Please read this EULA carefully and ensure you have properly understood its provisions. We draw your attention in particular to the limitations and exclusions of our liability in Condition 6.
1. SCOPE OF THIS EULA, ADDITIONAL TERMS
1.1 This EULA governs your use of the App and sets out the terms on which we make the App available to you. However, there are additional terms which apply in connection with your use of the App.
1.2 We provide a service of measuring, monitoring and training cognitive ability (the “Service”). Typically we provide the Service to our clients through browser-based portals, dashboards and applications. The App is a version of our application which is capable of being installed and run locally on a computer or mobile device owned or controlled by you (“Device”) rather than running through a web browser. However, in order to use the Service (and therefore to use the App fully) you, a parent, carer or family member, or the company, school or other organisation to which you belong, must have taken out a subscription to the Service in connection with which you have been provided with an individual user ID and login.
1.3 Your use of the App is thereby governed by the following terms in addition to this EULA:
(a) the terms under which you, a parent, carer or family member, or the company, school or other organisation to which you belong, has subscribed to the Service (the “Subscription Terms”). The Subscription Terms will also govern the use of any report or other outputs which we provide in connection with the Service; and
2. PLATFORMS, SYSTEM REQUIREMENTS AND UPDATES
2.1 This EULA applies to various versions of our App for various operating systems, including iOS, Mac OS and Windows. If you are downloading the iOS version of our App (i.e the version for use on an iPad), then additional terms will apply. This is because Apple, Inc. (“Apple”) specifies the terms on which developers can make available, and you can download and use, apps which are distributed through Apple’s App Store. If you are downloading the iOS version of our App then you should make sure you have read and understood Condition 10 below (headed “Relationship with Apple”).
2.2 In order to operate, the App requires your Device to meet any system requirements set out on the website (or in the App Store) from which you downloaded the App. In addition, the App requires your Device to be connected to the Internet in order for you to access those elements of the Service made available through the App.
2.3 We may update the App from time to time. The terms of this EULA apply to any updates or supplements to the App, unless they come with separate terms, in which case those terms apply.
3. GRANT, SCOPE AND CONDITIONS OF LICENCE
3.1 In consideration of you agreeing to abide by the terms of this EULA, we grant you a non-transferable, non-exclusive licence to use the App (and, where you have been issued with a user subscription, to access those elements of the Service made available through the App) on any Devices which you own or control for your personal or internal business or organisational purposes only, subject to the terms of this EULA and any terms incorporated into this EULA by reference. We reserve all other rights.
3.2 You must comply with any applicable third party terms of agreement when using the App or Service. For example, you must not be in violation of your wireless data service agreement when using the App or Service.
3.3 Except as expressly set out in this EULA or as permitted by any local law, you agree:
(a) not to copy the App except where such copying is incidental to normal use of the App, or where it is necessary for the purpose of back-up or operational security;
(b) not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the App or Service;
(c) not to make alterations to, or modifications of, the whole or any part of the App, or permit the App or any part of it to be combined with, or become incorporated in, any other programs;
(d) not to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the App or Service or attempt to do any such thing except to the extent that such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the App with another software program, and provided that the information obtained by you during such activities:
(i) is used only for the purpose of achieving inter-operability of the App with another software program;
(ii) is not unnecessarily disclosed or communicated without our prior written consent to any third party; and
(iii) is not used to create any software that is substantially similar to the App or service substantially similar to the Service;
(e) to keep all copies of the App secure and to maintain accurate and up-to-date records of the number and locations of all copies of the App;
(f) to include our copyright notice (if any) on all entire and partial copies you make of the App on any medium;
(g) not to provide or otherwise make available the App in whole or in part (including object and source code), in any form to any person without prior written consent from us.
4. YOUR RESPONSIBILITIES AND OBLIGATIONS
4.1 You will be assumed to have obtained permission from the owners of the any Devices that are controlled, but not owned, by you to download a copy of the App onto the Devices and access the Service through those Devices. You and they may be charged by your and their service providers for internet access on the Devices. You accept responsibility in accordance with the terms of this EULA for the use of the App or the Service on or in relation to any Device, whether or not it is owned by you.
4.2 By using the App or Service, you acknowledge and agree that internet transmissions are never completely private or secure. You understand that any message or information you send using the App or Service may be read or intercepted by others, even if there is a special notice that a particular transmission is encrypted.
4.3 By using the App or the Service you consent to us collecting and using technical information about the Devices and related software, hardware and peripherals to improve our products and to provide the Service to you.
4.5 The App or the Service may contain links to other independent third-party websites. These are not under our control, and we are not responsible for and do not endorse their content, quality or their privacy policies (if any). You will need to make your own independent judgement regarding your interaction with any third-party websites, including the purchase and use of any products or services accessible through them.
4.6 You represent and warrant that:
(a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and
(b) you are not listed on any U.S. Government list of prohibited or restricted parties.
4.7 Your access to the Service is through the use of a login name and password supplied by us or by your parent, carer, family member, school or other organisation. You agree to ensure that your login name and password are kept confidential and not to permit any unauthorised third party to use them. You will notify us immediately of any unauthorised use of your account or any other relevant breach of security known to you.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 You acknowledge that all intellectual property rights in the App anywhere in the world belong to us or our licensors, that rights in the App are licensed (not sold) to you, and that you have no rights in, or to, the App other than the right to use it in accordance with the terms of this EULA.
5.2 You acknowledge that you have no right to have access to the App in source-code form.
6. LIMITATION OF LIABILITY
6.1 You acknowledge that the App has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the App as described on our website (or, if applicable, in Apple’s App Store) meet your requirements.
6.2 Without limiting Condition 6.1, we do not warrant that the Software will be free from bugs or defects.
6.3 Subject to Condition 6.6, we are only responsible for loss or damage you suffer that is a foreseeable result of our breach of this EULA or our negligence up to the limit specified in Condition 6.5, but we are not responsible for any unforeseeable loss or damage. Loss or damage is foreseeable if it is an obvious consequence of our breach or if it was contemplated by you and us at the time you entered into this EULA.
6.4 Subject to Condition 6.6, we shall have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
6.5 Subject to Condition 6.6, our maximum aggregate liability under or in connection with this EULA (including your use of the Service) whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to twenty UK pounds sterling (£20).
6.6 Nothing in this EULA shall limit or exclude our liability for:
(a) death or personal injury resulting from our negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any other liability that cannot be excluded or limited by law.
7.1 We may terminate this EULA immediately by written notice to you:
(a) if you commit a material or persistent breach of this EULA which you fail to remedy (if remediable) within 14 days after the service of written notice requiring you to do so; or
(b) if you breach any of the licence restrictions set out in Condition 3.3.
7.2 On termination of this EULA for any reason:
(a) all rights granted to you under this EULA shall cease;
(b) you must immediately cease all activities authorised by this EULA; and
(c) you must immediately delete or remove the App from all Devices, and immediately destroy all copies of the App then in your possession, custody or control and certify to us that you have done so.
8. COMMUNICATION BETWEEN US
8.1 If you wish to contact us in writing, or if any condition in this EULA requires you to give us notice in writing, you can send this to us by e-mail to email@example.com or by telephone to +44 20 7272 3709. We will confirm receipt of this by contacting you in writing, normally by e-mail.
8.2 If we have to contact you or give you notice in writing, we will do so by e-mail to the address that was provided to us with your account registration.
9. OTHER IMPORTANT TERMS
9.1 We may transfer our rights and obligations under this EULA to another organisation, but this will not affect your rights or our obligations under this EULA.
9.2 You may only transfer your rights or obligations under this EULA to another person with our prior written consent.
9.3 If we fail to insist that you perform any of your obligations under this EULA, or if we delay in enforcing our rights against you, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
9.4 Each of the provisions of this EULA operates separately. If any court or competent authority decides that any of them (or any part of any provision) is unlawful or unenforceable, then it will be deemed to be removed from this EULA and the remaining provisions (or part-provision) will remain in full force and effect.
9.5 This EULA, its subject matter and its formation, will be governed by and interpreted in accordance with English law. You and we both agree that the courts of England and Wales will have exclusive jurisdiction over any claim or matter arising under or in connection with this Agreement, provided that we may bring proceedings for injunctive relief in any jurisdiction.
10. RELATIONSHIP WITH APPLE
10.1 This Condition is only applicable if you have downloaded and are using the iOS version of the App.
10.2 From time to time updates to the App may be issued through Apple’s App Store. Depending on the update, you may not be able to use the App until you have downloaded the latest version of the App and accepted any new terms.
10.3 In the event of any conflict on the date on which you agree to the terms of this EULA between Apple’s App Store Terms of Service and the usage rules set out in this EULA, the provisions of the App Store Terms of Service shall prevail. In particular, you may only use the App on any iOS Devices that you own or control as permitted by the Usage Rules set forth in the App Store Terms of Service (“iOS Devices” and “Usage Rules” having the meanings given in the App Store Terms of Service).
10.4 We acknowledge and agree, and you hereby acknowledge and agree, that:
(a) the EULA is concluded between you and us only, and not with Apple;
(b) we, not Apple, are solely responsible for the App and the content thereof;
(c) Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App;
(d) in the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, we, and not Apple, will be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claim;
(e) we, and not Apple, are responsible for addressing any claims made by you or any third party relating to the App or your possession and/or use of the App, including, but not limited to:
(i) product liability claims;
(ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and
(iii) claims arising under consumer protection or similar legislation; and
(f) Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and that, upon your acceptance of the terms and conditions of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary thereof.
10.5 In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price of the App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our sole responsibility.