PLEASE READ CAREFULLY BEFORE CONTINUING. This end-user licence agreement (“EULA”) is a legal agreement between you (“you”) and Starfish Labs Limited (“Starfish”) of Aberinnovation Offices, AIEC, Aberystwyth University, Aberystwyth, Wales, United Kingdom, SY23 3EE, United Kingdom (“us” or “we”) for the Starfish website, any website application published by Starfish Labs, or any mobile application software published by Starfish Labs (which may be referred to as “the website”, “the application”, “the App” or “App”), all modules downloaded via the application, streamed via the application, the data supplied with the software, and the associated media. We licence use of the App to you on the basis of this EULA and subject to any rules or policies applied by any app store provider or operator from whose site (“App store”), you downloaded the App (“App Store Rules”) or web browser on which you view the App. We do not sell the App to you. We remain the owners of the App at all times. Some parts of this EULA refer specifically to mobile applications downloaded from an App Store, and will not be applicable if you are only viewing the website version of the app.
1.1. The terms of this EULA apply to the App and to any of the services or functionality accessible through the App (“Services“), including any updates that replace or supplement the App or any Service, unless they come with separate terms, in which case those terms apply. If any open-source software is included in the App or any Service, the terms of an open-source licence may override some of the terms of this EULA.
1.2. We may change these terms at any time by sending you an e-mail or in-App message with details of the change or notifying you of a change when you next start the App. The new terms may be displayed on-screen and you may be required to read and accept them to continue your use of the Services.
1.3. From time to time updates to the mobile App may be issued through the App Store and/or Google Play. Depending on the update, you may not be able to use the Services until you have downloaded the latest version of the App and accepted any new terms.
1.4. You will be assumed to have obtained permission from the owners of the mobile devices described in condition 3.2 (“Devices“) that are controlled, but not owned, by you to download a copy of the App onto these 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 any Service on or in relation to any Device, whether or not it is owned by you.
1.6. By using the App or any of the Services, you consent to us collecting and using technical information about the Devices and related software, hardware and peripherals to facilitate the provision of software updates or otherwise to improve our products and to provide any Services to you.
1.8. The App has been designed for users residing in the U.K and we make no representation that the App or Services are appropriate for, or permitted to be used in, any other location. You are therefore responsible for ensuring that you comply with all applicable laws in your location in relation to your downloading and use of the App and the Services. If we become aware of any legal or other risk associated with the availability of the App or the Services, whether in a particular location or more generally, we reserve the right to change, suspend, withdraw or disable access to the App or Services at any time without notice, and we shall have no liability to you in respect of such action.
1.9. You represent and warrant that: 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 you are not listed on any U.S. Government list of prohibited or restricted parties.
1.10. Any words following the terms: including; include; in particular; for example; or any similar phrase shall be construed as illustrative and shall not limit the generality of the related general words.
2. GRANT AND SCOPE OF LICENSE
2.2 You may download a copy of the App to, and view, use and display the App on, any device that you own or control for your personal purposes only, and as permitted by the Usage Rules.
2.3 To the extent that you have purchased a multi-user licence these terms and conditions shall apply to each user to whom you make the App available. Each such user will be required to agree to these terms and conditions, but it will also be your responsibility to ensure that these terms and conditions are adhered to and you undertake to ensure, inter alia, that the terms in paragraphs 3, 4 and 5 herein are strictly observed.
3. LICENCE RESTRICTIONS – Except as expressly set out in this EULA or as permitted by any local law, you agree:
3.1 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;
3.2 not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the App;
3.3 except for the purpose of personalising the App content as envisaged to make effective use of the App, 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;
3.4 not to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the App or attempt to do any such thing except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving interoperability of the App with another software program, and provided that the information obtained by you during such activities is: used only for the purpose of achieving interoperability of the App with another software program; is not unnecessarily disclosed or communicated without our prior written consent to any third party; and is not used to create any software that is substantially similar to the App;
3.5 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;
3.6 to include our copyright notice on all entire and partial copies you make of the App on any medium;
3.7 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; and
3.8 To comply with all technology control or export laws and regulations that apply to the technology used or supported by the App or any Service (“Technology“), together “Licence Restrictions“.
4. ACCEPTABLE USE RESTRICTIONS You must:
4.1 not use the App or any Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this EULA, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the App, any Service or any operating system;
4.2 not infringe our intellectual property rights or those of any third party in relation to your use of the App or any Service (to the extent that such use is not licensed by this EULA);
4.3 not transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the App or any Service;
4.4 not use the App or any Service in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; and
4.5 not collect or harvest any information or data from any Service or our systems or attempt to decipher any transmissions to or from the servers running any Service, together “Acceptable Use Restrictions“.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 You acknowledge that all intellectual property rights in the App, the Technology and in all content, information and material made available to you via the App and Technology, wherever in the world such rights arise, belong to us, Apple, Android or our licensors, that these rights are licensed (not sold) to you, and that you have no rights in, or to, the App, Technology, information or material other than the right to use each of them 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. NO WARRANTY
6.1 We do not offer or provide any warranties or representations in relation to the quality or performance of the App, nor do we guarantee that the App and Services will always be available or that access to them will be uninterrupted.
6.2 We will not be liable to you if for any reason the App or Services do not perform as described or are unavailable at any time or for any period.
6.3 Nothing in this condition 6 detracts from any default legal rights you may have in relation to digital content or services that are faulty or not as described. Advice about your legal rights is available from your local Citizens’ Advice Bureau or Trading Standards office.
7. LIMITATION OF LIABILITY
7.1 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 meet your requirements.
7.2 We only supply the App for domestic use, private use and, where you have purchased a multi-user licence, for the internal use of your organisation. You agree not to use the App for any commercial, business or resale purposes, and we have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
7.3 Although we make reasonable efforts to update the information on the App, we make no representations, warranties or guarantees, whether express or implied, that the content on the App is accurate, complete or up-to-date.
7.4 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 7.6, 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 they were contemplated by you and us at the time we granted you the EULA.
7.5 The APP and its content have been created as an aid to assist people with varying degrees of learning difficulty or disability to manage their lives. It is not designed to replace or substitute real life medical care or the advice of a qualified health care professional and should not be used for these purposes. It is not intended to amount to advice on which you should rely. Do not disregard or avoid professional medical advice or delay seeking it because of materials made available through the App. Any content which may be included in the App has not been endorsed or approved by any governmental body or by any medical association or organisation. Except as set out in condition 7.7 we shall not be liable for any consequences of use of this App, whether resulting from the App as provided by us, or from any personalisation of the App done by or for you.
7.6 Our maximum aggregate liability under or in connection with this EULA (including your use of any Services) whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to £10. This does not apply to the types of loss set out in condition 7.7.
7.7 Nothing in this EULA shall limit or exclude our liability for:
7.7.1 death or personal injury resulting from our negligence;
7.7.2 fraud or fraudulent misrepresentation; and
7.7.3 any other liability that cannot be excluded or limited by English law.
7.8 If defective digital content that we have supplied damages a device or digital content belonging to you, then (at our discretion) we will either repair the damage or pay you compensation subject to condition 7.6. However, we will not be liable for damage that you could have avoided by following our advice to apply an update offered to you free of charge or for damage that was caused by you failing to correctly follow installation instructions or to have in place the minimum system requirements advised by us. We do not guarantee that the App or Services will be secure or free from bugs or viruses, and you should use your own virus protection software.
8.1 We may terminate this EULA immediately by written notice to you:
8.1.1 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
8.1.2 if you breach any of the Licence Restrictions or the Acceptable Use Restriction.
8.2 On termination for any reason:
8.2.1 all rights granted to you under this EULA shall cease;
8.2.2 you must immediately cease all activities authorised by this EULA, including your use of any Services; and
8.2.3 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.
9. COMMUNICATION BETWEEN US
9.1 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 email at [email protected] or by prepaid post to Starfish Labs Ltd, Aberinnovation Offices, AIEC, Aberystwyth University, Aberystwyth, Wales, United Kingdom, SY23 3EE United Kingdom. All questions, complaints or claims with respect to the App and the Services should be directed to us using these contact details, or any updated contact details that we provide from time to time. We will confirm receipt of your communication by contacting you in writing, normally by email.
9.2 If we have to contact you or give you notice in writing, we will do so by email to the email address you provide to us when downloading the App.
10. OTHER IMPORTANT TERMS
10.1 We may transfer our rights and obligations under this EULA to another organisation, but this will not affect your rights under this EULA.
10.2 You may only transfer your rights or obligations under this EULA to another person if we agree in writing.
10.3 This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
10.4 If we fail to insist that you perform any of your obligations under this EULA, or if we do not enforce our rights against you, or if we delay in doing so, 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.
10.5 Each of the conditions of this EULA operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
10.6 Please note that this EULA, its subject matter and its formation, are governed by English law. You agree that the courts of England and Wales will have exclusive jurisdiction, to the extent that this is permitted by law, and subject to the following exceptions:
10.6.1 if you are a resident of Northern Ireland you may also bring proceedings in Northern Ireland, and if you are resident of Scotland, you may also bring proceedings in Scotland; and
10.6.2 We shall have the right to bring proceedings for injunctive relief in any jurisdiction.