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Terms of use

End User License Agreement (version 2015.1)

END-USER LICENCE AGREEMENT FOR AB TUTOR software and cloud services relating to AB Tutor’s software . For the avoidance of doubt, this End User License Agreement shall come into effect from the date specified in AB Tutor’s order form or, if earlier, the Licensee’s first use of the Software or Services. Licensee accepts that it has no right or title in or to the AB TUTOR Software. Reference to this “Agreement” includes the terms of this End User License Agreement and the commercial terms set forth in any order form signed or otherwise agreed by the parties (including via email).

© 2024 AB Tutor Ltd, all rights reserved.

IMPORTANT - READ CAREFULLY BEFORE INSTALLING OR USING THE AB TUTOR SOFTWARE ('THE SOFTWARE') OR CLOUD SERVICES RELATING TO THE SOFTWARE (“SERVICES”)
BY SIGNING OR ACCEPTING THE ORDER FORM, CLICKING ON THE "ACCEPT" BUTTON OR BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE OR SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THESE TERMS YOU MAY NOT USE THE SOFTWARE OR SERVICES.

THIS IS AN AGREEMENT BETWEEN:-

(1) AB Tutor Ltd of Unit E, Argent Court, Hook Rise South, Surbiton, KT6 7NL, UK (“ABT” or "Licensor"); and
(2) the party placing an order with ABT for the Software or Services, as identified in the order form ("the Licensee")

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


OVERVIEW OF COMMERCIAL TERMS

The parties agree that:
Subject to payment of the software license fee or subscription fee set forth in the order form, Licensee will be granted a license to use the Software on an on-premise basis or the right to access the Services for the duration specified in the order. The Licensee acknowledges and accepts that the license is checked with a remote cloud service and access to that service must be available for the system to operate. Software license and subscription fees will increase annually in line with Licensor’s published price book, available online or, where the term of the license or subscription is a multi-year term, with effect from the end of the initial term agreed in the order. Licensor standard support is included in the license fee and subscription fee and is available during Licensor’s UK hours of business or, if earlier (in relation to license of the Software), until such time as Licensor ceases to provide standard support for the equivalent on-premise version of AB TUTOR with the same version number. Further information regarding cessation of support and sunsetting of versions of the Software and Services is set out below.

LICENCE

Licensee shall have a thirty (30) day period (or such other period as may be agreed in writing with AB TUTOR) in which to evaluate the Software or Services. If Licensee uses the Software or Services after this thirty (30) day period (or such other period as may be agreed in writing with AB TUTOR) the Licensee agrees to a full licence or subscription and becomes liable to pay the licence and subscription fees as specified online in Licensor’s published price book. Such licence and subscription fees become due on the date use after the evaluation period (or, if earlier, the date agreed in the order form agreed by the parties) and are entirely non-refundable. Additional licences and subscriptions 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 fees for the additional licences become payable on use of additional licences or signature or acceptance of the order form (whichever is earlier) and in advance on every anniversary of that date. The license or subscription shall continue for an initial period of 12 months (or such other period as may be agreed in the order form) and thereafter shall automatically renew for subsequent 12 month periods (each a “renewal term”) unless either party gives not less than sixty (60) days’ notice of non-renewal to the other prior to the end of the initial period or applicable renewal term. Access will be suspended if the license and subscription fees for the first 12 month period are not paid in full. AB TUTOR shall provide Licensee with not less than ninety (90) days’ advance notice of the applicable fees due on any renewal. Licensee shall have no right to terminate the licence or subscription for convenience during the term of the order form.

Licence Terms and Conditions

1.1 All copyright and other intellectual property rights whatsoever in the Software and Services and accompanying user documentation remain the absolute property of the Licensor.

1.2 It is a condition of the licence to use the Software, the subscription to the Services and of this Agreement that the details submitted by the Licensee to the Licensor when initially downloading and when ordering or purchasing the licence to use the Software and subscription to use the Services are accurate. The Licensee is obliged as a condition of the licence, subscription and this Agreement to update such details promptly as and when necessary. It is a further condition of the licence, subscription and this Agreement that the Licensee is a school, college, university or other institution providing tuition to students and pupils at primary, secondary or further education and that the Software and Services are used solely in connection with monitoring the tuition of the students and pupils at that school, college, university or other institution named in the attached quotation or order (“Education Centre”). For the avoidance of doubt, no right or licence is granted for the onward provision of services outside the Education Centre or outside of monitoring the tuition provided to students or pupils at such Education Centre.

1.3 In consideration of the licence and subscription fees paid by or on behalf of the Licensee to the Licensor (or its authorised distributors) the Licensee is granted a non-sublicensable, non-transferable licence, for the applicable term, as set out herein to use and to allow its authorised Users (as defined below) to use the Software in object code only at a single site and to use the Services at a single site only. Licensee acknowledges that a separate licence or subscription is required for each school. The Licensee's rights to use the Software are expressly limited to loading, storing and running the object code version of the Tutor Program component of the Software on the Licensee's User hardware stated in the user documentation accompanying the Software to be compatible with it and to installing the Student 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 (but not the Services) as reasonably necessary for security back-up purposes only. The licence term shall be for the term specified in the quotation (subject to renewal and termination in accordance with clause 12). Upgrades of the Software are not included in the fee, and shall be subject to an additional fee if Licensee requires an upgrade. "Software" shall be deemed to include all upgrades so purchased by Licensee. Updates to the Services shall be automatically rolled out.

1.4 Subject to payment of the applicable licence and subscription fees and acceptance by Licensor of the Licensee's offer to acquire licences in respect of the Software and/or subscriptions to the Services, in each case on the terms of this Agreement, (which acceptance will be indicated by Licensor activating the applicable copies of the Software or using the Services), the Licensee is granted a, non-exclusive, non-transferable and non-sublicensable licence to use the Software and/or Services (as the case may be) for its own internal business and administrative purposes only and in accordance with clause 1.3. The Software comprises three distinct components, namely the 'client', the 'Tutor Program' and the ‘Server Program’. The Licensee may install the number of copies of the Student Program set forth in the attached quotation. The Licensee may install copies of the Tutor 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.. If the Software is to be installed on a computer belonging to anybody other than the Licensee then the express consent of the owner and Licensor 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. The Services are licensed on a per student client basis, with fees charged depending on connected student sessions. If the Licensee exceeds the number of authorised student sessions, the Licensor shall notify the Licensee and, if the Licensee repeats this overuse, the Licensor shall be entitled to charge the Licensee pro rata for such over-usage, calculated on the basis of the number of student sessions in excess of the subscription fees and the remainder of the order form term.

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 the Licensor. This identity code identifies and is uniquely linked to the specified computer or other hardware device upon which the Software was first installed. The Licensee must obtain from the Licensor or its distributor a corresponding unlock code to fully activate the Software. The unlock code will only be provided once the Licensor (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 the Licensor or its distributor. Transfer of the licence to an alternative personal computer or other hardware device is permitted at no additional charge providing that the Licensor's procedures as specified from time to time are complied with.

1.4.2 For Licensees with multiple licensed copies of the Software, the Licensor may, in its absolute discretion, agree to allocate to the Licensee either directly or via its distributor an 'account serial number' which can be used to unlock the Software on different personal computers or other hardware devices at once. The Software automatically sends data to the Licensor's online management system each time the Software is checked (on software start). The Licensee must not and shall ensure that each User shall not do anything to prevent such automatic reporting.

1.5 A soft copy of user documentation is supplied for each licensed concurrent User. The Licensee acknowledges that neither the Licensor nor any of its distributors has any contractual or other obligation to support or maintain the Software or Services. However, the Licensor (and where the Software or Services have been acquired through an authorised distributor of the Licensor, 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 'unlocking' mechanisms referred to in clause 1.4. The Licensor reserves the right to change its support policies at its discretion. Assistance will only be provided for as long as Licensor provides standard support to the equivalent on-premise version of AB TUTOR (the same version number) and is provided on a 'reasonable endeavours' basis only. Neither the Licensor nor its distributors guarantee that any issues with the Software's or Services’ performance will be corrected immediately or at all for the reasons stated in clause 3. Updates to the Services are automatically rolled out. Licensees of the Software are entitled to download free of charge any new releases of their licensed version of the Software which may be issued by the Licensor from time to time to resolve issues relating to the performance of the Software, provided however that Licensor may apply further charges for any installation assistance, customization services or other professional services requested by Licensee as these are not included in standard support. The version number is indicated by the digit before the decimal point. For example version 10 would be indicated by version 10.X. Licensees with a licence in respect of version 10 would be entitled to download all releases designated with the 10 prefix, 10.1, 10.2 etc. Licensees are not entitled to new versions of the Software which are issued by Licensor as upgrades to provide improved performance of functionality. Separate licence fees may be charged by the Licensor in return for the right to use these upgrades. These will be indicated by a new major version number e.g. version 10.0 will constitute a chargeable upgrade for version 9 users. Licensor shall give Licensee not less than 6 months’ prior notice in writing if it intends to cease standard support for, and sunset availability of, v10 (or any other version) of the Software. In this event, Licensee shall have the right to download free of charge any new version of the Software made available to its licensees generally, provided however that Licensor may apply further charges for any installation assistance, customization services or other professional services requested by Licensee as these are not included in standard support.

2. The Licensee acknowledges (i) that the Software and Services have not been developed to meet Licensee’s individual requirements, and (ii) that it has had the ability to test the Software's functionality and suitability for use in its environment during the evaluation licence. Accordingly, use of the Software and Services is entirely at the Licensee's own risk and neither the Licensor nor its distributors warrant that the Software or Services will meet the Licensee's individual requirements nor that the operation of the Software or Services will be entirely uninterrupted or error free. Furthermore, no refund of the licence fee will be given if the Software or Services are not compatible with the Licensee's system for any reason.

3. 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 the Licensor, 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 and Services. The Licensor has and will continue to use all reasonable endeavours to ensure that the Software and Services contain 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/or Services and all new versions thereof.

The User's use of the Software and Services 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. Importantly, there are numerous factors almost entirely outside the control of the Licensor, 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 and/or Services 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 or Services 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. The Licensor shall be given a reasonable opportunity to remedy any claimed unsatisfactory performance of the Software and Services. The Licensee shall reasonably demonstrate the alleged unsatisfactory performance to the Licensor or its distributor and reasonably cooperate with ABT in recreating the problem.

4. Except as expressly provided the Licensee and Users are not permitted to copy, transfer, modify, translate, disassemble, reverse engineer or decompile the Software or Services 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 ABT'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 the Licensor regarding any information the Licensee requires in order to achieve interoperability so that the Licensor 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.

5. For the avoidance of doubt except as expressly set out or otherwise agreed in writing the Licensor shall have no liability to maintain, enhance or otherwise support the Software or Services.

6. 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.

7. Except for death or personal injury caused by the Licensor's (or its distributor's) negligence, under no circumstances shall Licensor or any of its distributors be liable for any loss or damage (even if reasonably foreseeable) arising out of use of the Software or Services, inability to use the Software or Services or any defect in the Software or Services however caused. Where notwithstanding the foregoing Licensor is found liable for direct losses sustained by the Licensee, any such liability shall in no circumstances exceed the license or subscription fees paid by the Licensee for the applicable Software or Services in the 12 month period preceding the event giving rise to the loss (provided that this shall not apply to limit liability for death or personal injury caused by Licensor’s negligence). All risk associated with use of the Software and the results derived therefrom remains with the Licensee.

8. The licence and rights granted under this Agreement are 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 the Licensor. The Software and Services are 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 are Services are 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 and Services and user documentation are the proprietary and confidential property of the Licensor. The Licensee shall not delete proprietary information or trade mark notices, if any, appearing within the Software or Services 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

9. The Licensor and its distributor, if applicable, warrants that it has the right to grant to the Licensee the rights to use the Software and Services as set out herein. The Licensor shall defend any claim by a third party against the Licensee that the Software and Services infringe 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 the Licensor in writing of such claims;

9.2 The Licensor 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 the Licensor;

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

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

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

10. The Licensee shall during the continuance of the licence, subscription and this Agreement:

10.1 Effect and maintain reasonable security measures to safeguard the Software and Services, the Licensor'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

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

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

11. The Licensee will supply to the Licensor and the Licensor will during the course of this Agreement obtain through use of Licensor's online licence management system certain personal data relating to the Licensee and Users. This data will be used by Licensor strictly to enable Licensor to administer and regulate the licensing of the Software and Services and to facilitate the provision of technical support. The personal data will also be used to keep individuals informed of developments in Licensor's products and services from time to time. Any individual can elect not to receive further information regarding Licensor's products and services by notifying ABT to that effect using the contact details listed for that purpose on Licensor's web site. Licensor undertakes that any personal data will not be disclosed to any third party except to any sub-contractor acting on behalf of Licensor from time to time and then only as strictly necessary or to any purchaser of Licensor's business and assets.

12. This Agreement and the licence and subscription shall continue for an initial term of 12 months (or such other period as may be agreed in the order) from the date of this Agreement and shall automatically renew for further periods of 12 months (each a “renewal term”) on the anniversary of that date unless either party shall give to the other not less than 60 days’ notice in advance of the expiry of the initial term or applicable renewal term, subject always 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 or Services on its behalf) fails to comply with the terms and conditions set out herein. Licensor may, but is not obliged to, confirm termination of this Agreement by giving notice in writing to the Licensee following the same coming to Licensor's attention if the Licensee or User or any person using the Software or Services on its behalf has failed to comply with the terms and conditions of this Agreement. Licensor 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 Agreement have been complied with. The Software contains technical measures which in some cases disable the Software automatically or in other cases enable Licensor to disable the Software if the licence terms set out in this Agreement are not complied with or if any of Licensor's 'unlock codes' or 'account serial number' are misused or become compromised and access to the Services may be suspended at any time. 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 Licensor, certify that this has been done and shall cease all use of the Services. 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.

13. The Licensee shall notify Licensor 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 Licensor shall reasonably require to bring such unauthorised use to an end.

14. Licensor 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 Licensor group of companies from time to time or to a purchaser of all or substantially all of Licensor's assets.

15. 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.

16. This Agreement shall constitute the entire agreement between the parties with respect to the Software and Services 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 Licensor unless made by a written instrument signed by a duly authorised representative of Licensor (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).

17. 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 Licensor's 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.

18. 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.

19. 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.

Additional icons licensed under CC-BY 3.0 by Yusuke Kamiyamane from the Fuge icon collection. https://github.com/yusukekamiyamane/fugue-icons

Additional icons licensed under CC-BY 3.0 by Austin Andrews. http://modernuiicons.com/

The following patch has been applied to the QtCore dll for windows platforms https://www.abtutor.com/static/patches/qt541-thread-stack-size.patch

Licensor shall be entitled to revise the terms and conditions of this Agreement upon a minimum of 90 days' notice. Any such notice will be notified to Licensee by email. Use of the Software and/or Services 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.