Terms of use

End User License Agreement

IMPORTANT - READ CAREFULLY BEFORE INSTALLING OR USING THE AB TUTOR SOFTWARE ('THE SOFTWARE')

BY CLICKING ON THE "ACCEPT" BUTTON OR BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THESE LICENCE TERMS. IF YOU DO NOT ACCEPT THESE LICENCE TERMS YOU MAY NOT USE THE SOFTWARE.

THIS IS AN AGREEMENT BETWEEN:-

(1) AB Software Consulting Ltd of Unit D7, Sandown Industrial Park, Mill Road, Esher, Surrey, KT10 8BL, UK ("ABC"); and

(2) The institution, company or individual named as the licensed user when the Software is downloaded ("the Licensee")

Where the Licensee has dealt indirectly through an independent distributor appointed by ABC, these terms and conditions shall additionally form the terms of the sub-licence or agreement between the distributor and the Licensee in question.

LICENCE

The Licensee is granted an evaluation licence for the Software at no charge for a maximum of 30 days from implementation. By using the Software after this initial 30 day evaluation period the Licensee agrees to a full licence and becomes liable to pay the licence fees as specified from time to time on ABC's web site at the time of the download or as otherwise agreed with ABC or ABC's distributor. Such licence fees are entirely non-refundable. Additional licences can be acquired as and when required at the prices applicable from time to time. All sums stated are exclusive of VAT (if applicable). The licence fees for a perpetual licence become due and payable if the Software is used after the evaluation period. For an annual licence, the fees become payable at the end of the evaluation period and every anniversary of that date.

Licence Terms and Conditions

1.1 All copyright and other intellectual property rights whatsoever in the AB Tutor software and accompanying user documentation (the "Software") remain the absolute property of AB Software Consulting Limited ("ABC") and ABC reserves all rights in and to the Software.

1.2 The Licensee is granted the rights to use the Software set forth in clause 1.3 and 1.4 (“Licence”). It is a condition of the Licence that the details submitted by the Licensee to ABC when initially downloading and when ordering or purchasing the Licence to use the Software are accurate. The Licensee is obliged as a condition of the Licence to update such details promptly as and when necessary. It is a further condition of the Licence that the Licensee is a school, college, university or other institution providing tuition to students and pupils at primary, secondary or further education.

1.3 In consideration of the licence fee paid by the Licensee to ABC (or its authorised distributors) the Licensee is granted a non-exclusive, non-sublicensable, non-transferable Licence, for the applicable term, as set out herein to use and to allow its authorised Users (as defined below in clause 1.4) to use the Software in object code only. The Licensee’s rights to use the Software are expressly limited to (i) loading, storing and running the object code version of the Console Program component of the Software on the Licensee’s User hardware stated in the user documentation accompanying the Software to be compatible with it, (ii) installing and running the Central Server Program component of the Software on one server within the Licensee’s designated site for the sole purpose of managing the Console and Client components, and (iii) installing and running the Client Program component of the Software on students’ or pupils’ computers or devices for the sole purpose of monitoring students’ and pupils’ use of the internet and applications and the communications they are sending or receiving using those computers or devices or wireless or internet facilities. The Licensee is permitted to make copies of the Software as reasonably necessary for security back-up purposes only. All copyright and other proprietary notices contained on the original must be reproduced on all copies. The Licence term shall be either perpetual (subject to termination in accordance with clause 12) or 12 months (subject to renewal and termination in accordance with clause 12). For annual Licences, all upgrades of the Software made generally available to ABC’s educational licensees are included in the fee, and “Software” shall be deemed to include all such upgrades in respect of such annual Licences.

1.4 Subject to payment of the applicable Licence fees and acceptance by ABC of the Licensee’s offer to acquire Licences in respect of the Software, (which acceptance will be indicated by ABC activating the applicable copies of the Software), the Licensee is granted a, non-exclusive, non-transferable and non-sublicensable Licence to use the Software for its own internal business and administrative purposes only and in accordance with clause 1.3. The Software comprises three distinct components, namely the ‘Central Server Program’, the ‘Client Program' and the 'Console Program'. The Licensee may install an unlimited number of copies of the Client Program. The Licensee may install copies of the Console Program on equipment owned by, leased or licensed to the Licensee provided that the number of copies installed by or on behalf of the Licensee does not exceed the number of Licences for which Licence fees have been paid and provided further that this shall only be used by authorised Users. Each Licence gives the Licensee the right to install the Console Program on unlimited machines for the duration of the Licence, for the sole purpose of use by licensed authorised Users in accordance with the Licence; authorised Users may not log in concurrently. The Central Server Program may be installed on one server at a designated location for use at one designated site and this designated location and site may not be changed without the prior written consent of ABC If the Software is to be installed on a computer belonging to anybody other than the Licensee then the express consent of the owner must be obtained in advance. For the purposes of this clause 1.4 authorised User means a teacher or lecturer employed or engaged by the Licensee.

1.4.1 To ensure that all copies of the Software being used are properly licensed, when the Software is downloaded and installed a unique identity code is generated by ABC. This identity code identifies and is uniquely linked to the specified computer or other hardware device upon, and at the same location at, which the Software was first installed. Upon the expiry of the initial 30 day evaluation period, the Licensee must obtain from ABC or its distributor a corresponding serial code to fully activate the Software. The serial code will only be provided once ABC (or its distributor) has received payment of the agreed Licence fee or a binding order to acquire paid for Licences from the Licensee in a form satisfactory to ABC or its distributor. Transfer of the Licence to an alternative personal computer or other hardware device is permitted at no additional charge providing that ABC's procedures as specified from time to time are complied with. The Software automatically sends data to ABC’s online management system each time the Software is checked (on software start and periodically thereafter). The Licensee must not and shall ensure that each authorised User shall not do anything to prevent such automatic reporting.

1.5 A soft copy of user documentation is supplied for each licensed concurrent authorised User. The Licensee acknowledges that neither ABC nor any of its distributors has any contractual or other obligation to support or maintain the Software. However, ABC (and where the Software has been acquired through an authorised distributor of ABC, by the distributor in question) may be prepared to provide telephone assistance during local office hours to deal with user queries and administration of the licensing mechanisms referred to in clause 1.4. ABC reserves the right to change its support policies at its discretion. Assistance will only be provided in respect of the latest and immediately preceding version of the Software (or, if longer, for a minimum of two years from the date Licensee acquired its license rights) and is provided on a 'reasonable endeavours' basis only. Should ABC not produce any further versions of the Software, it reserves the right to cease providing support three years from the date of release of the last version of the Software. Neither ABC nor its distributors guarantee that any issues with the Software's performance will be corrected immediately or at all for the reasons stated in clause 3. Licensees of the Software are entitled to download free of charge any new releases of the major version of their licensed version of the Software which may be issued by ABC from time to time to resolve issues relating to the performance of the Software. The major version number is indicated by the digit before the decimal point. For example version 7 would be indicated by version 7.x.x. Licensees with a licence in respect of version 7 would be entitled to download all releases designated with the 7 prefix, 7.1.0, 7.2.1 etc. Licensees are not entitled to new versions of the Software which are issued by ABC as upgrades to provide improved performance or functionality. Separate Licence fees may be charged by ABC in return for the right to use these upgrades. These will be indicated by a new major version number e.g. version 7.0.0 will constitute a chargeable upgrade for version 6 users.

The Licensee acknowledges (i) that the Software has not been developed to meet its individual requirements, and (ii) that it has the ability to test the Software’s functionality and suitability for use in its environment during the 30 day evaluation period. Accordingly, use of the Software is entirely at the Licensee’s own risk and neither ABC nor its distributors warrant that the Software will meet the Licensee’s individual requirements nor that the operation of the Software will be entirely uninterrupted or error free. Furthermore, no refund of the licence fee will be given if the Software is not compatible with the Licensee’s system for any reason.
The Licensee acknowledges that the purpose of the rights granted hereunder is strictly to enable the Licensee and authorised Users to legitimately monitor activity of, in the case of schools, school children or college students attending the User's institution as well as members of staff and in doing so, the Licensee must ensure that it complies fully with any applicable privacy, confidentiality, data protection, human rights, computer misuse and other applicable legislation and codes of conduct and good practice whatsoever. The Licensee must, where required by applicable local law, ensure that those being monitored (and, where applicable, their parents) are given suitable warnings in advance of monitoring commencing and give express consent to the extent that is required. The Licensee shall indemnify ABC, its employees, officers, distributors and agents from any and all liability (and related legal costs), costs, claims, damages and expenses arising from any breach of privacy and other applicable legislation and codes of conduct and good practice resulting from the Licensee’s and User's use of the Software. ABC has and will continue to use all reasonable endeavours to ensure that the Software contains no viruses or other malicious code which is designed to corrupt or otherwise adversely affect the performance of computer systems. However, it is the Licensee’s responsibility in accordance with good computing practice that it undertakes its own virus checking precautions before implementing the Software and all new versions thereof.

The User's use of the Software and the results obtained therefrom is entirely at the Licensee's own risk. This is a reflection of the fact that the Licensee has been given an adequate opportunity to fully evaluate the Software before proceeding to acquire a Licence beyond the evaluation period and the price paid for the Software. Importantly, there are numerous factors almost entirely outside the control of ABC, including unique and changing aspects of the Licensee's IT systems and infrastructure and the future actions of third party providers of software and hardware such as firewalls, virus protection software, drivers and operating system updates, which may impact upon the performance of the Software at any point in time.

No warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance, durability or fitness for purpose of the Software is given or assumed and all such warranties, conditions, undertakings and terms are hereby excluded. Depending upon the country in which the Licensee is located, the exclusion of certain implied terms and the limitation of liability set out below may not be lawful in which event the Licensee’s statutory implied rights are not affected. ABC shall be given a reasonable opportunity to remedy any claimed unsatisfactory performance of the Software. The Licensee shall reasonably demonstrate the alleged unsatisfactory performance to ABC or its distributor and reasonably cooperate with ABC in recreating the problem.

Except as expressly provided, the Licensee and Users are not permitted to copy, transfer, modify, translate, disassemble, reverse engineer or decompile the Software as supplied for any purpose whatsoever.

4.1 Where permitted by applicable law, the Licensee may incidentally decompile the Software only if it is essential to do so in order to achieve interoperability of the Software with third party software or hardware ("Permitted Purpose") provided the information obtained by the Licensee during such decompilation is only used for the Permitted Purpose and is not disclosed or communicated to any third party without ABC's prior written consent and is not used to create any software which is substantially similar to the expression of the Software nor used in any manner which would be restricted by copyright.

4.2 Notwithstanding Clause 4.1, the Licensee undertakes to first consult ABC regarding any information the Licensee requires in order to achieve interoperability so that ABC may consider making the same available to the Licensee (without the Licensee having to rely on Clause 4.1) subject to restrictions on disclosure set out in Clause 4.1.

For the avoidance of doubt except as expressly set out ABC shall have no liability to maintain, enhance or otherwise support the Software.
The Licensee shall remain fully responsible for implementing appropriate security measures in accordance with best computing practice such as the use of passwords, firewalls, up to date, reputable virus scanning software and regular data back-ups to safeguard itself and those who use its computer systems from accessing inappropriate material, malicious code or other undesirable elements.
Except for death or personal injury caused by ABC’s (or its distributor’s) negligence, under no circumstances shall ABC or any of its distributors be liable for any loss or damage (even if reasonably foreseeable) arising out of use of the Software, inability to use the Software or any defect in the Software however caused. All risk associated with use of the Software and the results derived therefrom remains with the Licensee.
The Licence granted hereby is personal to the Licensee. The Licensee may not assign, sub-licence or otherwise transfer all or any of its rights and obligations hereunder to any third party whatsoever without the prior written consent of ABC. The Software is to be used strictly for the Licensee’s and User's own use in connection with the provision of education to its students and pupils. The Software is not to be used to provide any kind of monitoring service to or on behalf of a third party, whether for payment or otherwise. The Software is the proprietary and confidential property of ABC. The Licensee shall not delete proprietary information or trademark notices, if any, appearing within the Software or on any related documentation. The Licensee shall, and shall procure that its Users and employees also, preserve the confidentiality of the Software and installers and any 'unlock code' or 'account serial number' and in particular shall only authorise access to the Software or disclose confidential information relating to the Software to the extent that such access or disclosure is strictly necessary in accordance with the rights granted hereunder and then only to the Licensee’s employees.

8.1 Obligations of confidentiality shall not apply in respect of

8.1.1 information which is within the public domain unless the information is in the public domain as a result of a breach of this Agreement by that party; or

8.1.2 any information or knowledge possessed by that party prior to disclosure to it by the other or rightfully acquired from sources other than the other party as evidenced by the written records of such party; or

8.1.3 any information or knowledge that is rightfully furnished to the receiving party without restrictions on disclosure by a third party without a breach of such third party's obligations of confidentiality; or

8.1.4 is required by law to be disclosed by the receiving party, provided that the receiving party: gives the disclosing party prompt written notice of such requirement prior to such disclosure; provides assistance in obtaining an order protecting such information from disclosure; and discloses confidential information only to the extent required by law

ABC and its distributor, if applicable, warrants that it has the right to grant to the Licensee the rights in the Software as set out herein. ABC shall defend any claim by a third party against the Licensee that the Software infringes any intellectual property rights and shall indemnify the Licensee against all costs and damages awarded against the Licensee as a result of any such claim provided that:

9.1 The Licensee shall promptly notify ABC in writing of such claims;

9.2 ABC shall have exclusive control over the defence of such claims and over all negotiations in relation to such claims and in particular the Licensee shall not accept any liability in relation to such claims without the prior written consent of ABC;

9.3 The Licensee shall provide all such documents, information and assistance and do all such acts and things as ABC may reasonably require to such claims; and

9.4 In the event of any such claim, ABC shall have the right to procure for the Licensee the right to continue using the Software or to replace or modify the same so that it becomes non-infringing or, if in the opinion of ABC no other reasonable alternative is available, to terminate the licence and to refund the Licence fees paid in the preceding 12 months.

ABC has no liability for any claim to the extent that it is based upon the combination, operation or use of the Software with third party equipment, devices or software. ABC has no liability for any claim based upon alteration or modification of the Software supplied hereunder. The foregoing states the entire obligation of ABC and its distributors with respect to intellectual property infringement.

The Licensee shall during the continuance of the Licence:

10.1 Effect and maintain reasonable security measures to safeguard the Software, ABC's online licence management system and any ‘unlock' codes or 'account serial number' from access or use by any unauthorised person;

10.2 Retain the Software and all copies thereof in Licensee’s possession securely and confidentially;

10.3 Maintain a full and accurate record of the User's copying and usage of the Software and shall produce such record to ABC on request from time to time;

10.4 Not knowingly, either directly or indirectly, allow or facilitate the use of the Software in countries where such use would be in breach of UK or US governmental export or usage regulations.

The Licensee will supply to ABC and ABC will during the course of this Agreement obtain through use of ABC's online licence management system certain personal data relating to the Licensee and Users. This data will be used by ABC strictly for its legitimate business interests to enable ABC to administer and regulate the licensing of the Software and to facilitate the provision of technical support. Where individuals have consented or requested or have not opted out, the personal data will also be used to keep individuals informed of developments in ABC's products and services from time to time. Any individual can elect not to receive further information regarding ABC's products and services by notifying ABC to that effect using the contact details listed for that purpose on ABC's web site https://www.abtutor.com/privpol. ABC undertakes that any personal data will not be disclosed to any third party except to any sub-contractor acting on behalf of ABC from time to time and then only as strictly necessary or to any purchaser of ABC's business and assets.
This Licence shall continue (i) in the case of a perpetual licence unless and until terminated as set out below, or (ii) in the case of an annual licence for 12 months from the date of expiry of the evaluation licence and, if renewed, any anniversary thereof, subject to the provisions for earlier termination and in each case shall automatically terminate forthwith if the Licensee or User (or any person using the Software on its behalf) fails to comply with the terms and conditions set out herein. ABC may, but is not obliged to, confirm termination of this Agreement by giving notice in writing to the Licensee following the same coming to ABC's attention if the Licensee or User or any person using the Software on its behalf has failed to comply with the terms and conditions of this Agreement. ABC or its agents reserve the right, subject to giving reasonable advance notice, to audit the User's computer facilities by way of physical on-site inspection to determine whether the terms of this Licence have been complied with. The Software contains technical measures which in some cases disable the Software automatically or in other cases enable ABC to disable the Software if the licence terms set out in this Agreement are not complied with or if any of ABC's 'unlock codes' or 'account serial number' are misused or become compromised. Upon termination the Licensee shall forthwith permanently destroy or erase all copies of the Software then in its possession or control and, if required by ABC, certify that this has been done. Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it effect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come onto or continue in force on or after such termination. No refund is payable on termination for any reason.
The Licensee shall notify ABC immediately if the Licensee becomes aware of any unauthorised use of the whole or any part of the Software by any person and shall take such action as ABC shall reasonably require to bring such unauthorised use to an end.
ABC may assign this Agreement or any of its rights and obligations hereunder without the prior written consent of the Licensee including any assignment within the ABC group of companies from time to time or to a purchaser of all or substantially all of ABC's assets.
No forbearance, delay or indulgence by either party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party nor shall any waiver of its rights operate as a waiver of any subsequent breach. Any waiver must be clear and unequivocal on behalf of the party issuing the same. No right, power or remedy herein conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party and each such right, power or remedy shall be cumulative.
This Licence shall constitute the entire agreement between the parties with respect to the Software and shall supersede any and all promises representations or other statements whether written or oral made by or on behalf of one party to the other of any nature whatsoever or contained in any brochure or document given by one party to the other. Nothing in this Agreement shall exclude liability for misrepresentations made fraudulently. No addition to or modification of any provision of this Agreement shall be binding upon ABC unless made by a written instrument signed by a duly authorised representative of ABC (which for this purpose, may include an e-mail provided that it is clearly stated to add to or modify the provisions of this Agreement).
No term of this Agreement shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 or other similar legislation by any person who is not a party to this Agreement except that ABC' distributors from time to time are entitled to rely upon provisions of this Agreement to the extent applicable including, in particular, to enforce the Licensee's obligation to pay the applicable Licence fee and rely upon the provisions limiting warranties and liability.
In the event that any one or more of the provisions contained in this Agreement shall for any reason be held in a final decision to be unenforceable illegal or otherwise invalid in any respect such unenforceability illegality or invalidity shall not affect any other provisions of this Agreement which shall continue in full force and effect and this Agreement shall then be construed with such amendments as are necessary in order to make the provision valid and enforceable and to meet, so far as possible, the original intention of the parties as reflected in this Agreement.
This Agreement shall be governed by and construed in accordance with the laws of England. In the event of any dispute arising between the parties under or in connection with this agreement the parties shall submit to the exclusive jurisdiction of the English courts.

ABC shall be entitled to revise the terms and conditions of this Licence upon a minimum of 90 days’ notice. Any such notice will be posted on ABC's web site. Use of the Software after the date when this notice becomes effective will be deemed to be confirmation by the Licensee that it accepts the applicability of the revised terms and conditions.