ProReal Software Terms and Conditions
Acceptance of this Agreement by ProReal Limited is expressly conditional upon your acceptance to all the terms and conditions contained herein.
The following terms (hereinafter referred to as the “Terms”) are effective
(1) ProReal Limited incorporated and registered in England and Wales whose registered office is 2 Chawley Park, Cumnor Hill, Oxford, United Kingdom OX2 9GG (“The Company”); and (2) you (the “Licensee”).
(A) The Company owns the ProReal Software products and makes them available to subscribers via download or browser.
(B) The Licensee wishes to use the ProReal Software in its normal operations.
(C) These Terms govern the use by the Licensee of The Company’s Software as currently existing and subsequently enhanced or modified. The Company reserves the right to modify this Agreement by posting a notice on its website (www.proreal.co.uk) or by email notification.
1.1. In this Agreement the following terms shall have the following meanings:
“Effective Date” is the date that these Terms are accepted by Licensee.
“Fees” are the fees payable by the Licensee to The Company for the Software.
“Licensee” is the company, firm, individual or other entity registered and licensed to use the Software.
“ProReal Websites” means the web pages at the URLs provided by The Company.
“Software” means any ProReal avatar/virtual world and related software products created or owned by The Company and which is used in a range of situations to support, for example, coaching, consulting, management performance and therapy.
“Term” means the term set out in clause 10.1.
“Users” are those employees, agents and independent contractors of the Licensee who are authorised to use the Software.
“Virus" means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.
2. LIMITED LICENCE
2.1. Subject to the terms and conditions herein, The Company grants to Licensee a personal, non-exclusive, non-transferable licence to use the Software and related documentation during the Term solely for the Licensee's normal business or operations. The Company shall retail all title to and ownership of the Software and all copies thereof. Each person who accesses the Software must have an individual User name. User names cannot be shared.
3. DELIVERY OF SOFTWARE
3.1. The Company shall deliver the Software by enabling the Licensee to download the Software from its website or other means on payment of the relevant Fees.
3.2. The Company will provide the Licensee a support service as set out in clause 6.
3.3. The Licensee undertakes to:
3.3.1. co-operate with The Company and provide all information necessary under these Terms;
3.3.2. ensure that all authorised users of the services comply with these Terms;
3.3.3. ensure that its IT network and systems comply with any requirements specified by The Company in any technical specifications and to be solely responsible for maintaining its network connections and links with the Software;
3.3.4. ensure that the number of Users using the Software does not exceed the number of licences it has purchased from time to time;
3.3.5. notify The Company as soon as it becomes aware of any unauthorised use of the Software by any person;
3.3.6. ensure that any password is kept secret and confidential and not passed to any third party.
3.4. The Licensee shall not:
3.4.1. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under these Terms:
220.127.116.11. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
18.104.22.168. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
3.4.2. access all or any part of the Software or materials owned by The Company in order to build a product or service which competes with the Software; or
3.4.3. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software and/or materials owned by The Company available to any third party except the Users, or
3.4.4. attempt to obtain, or assist third parties in obtaining, access to the Software and/or materials owned by The Company, other than as provided under this clause 3 or where authorised by The Company; and
3.5. The Licensee shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and, in the event of any such unauthorised access or use, promptly notify The Company.
3.6. The rights provided under this clause 3 are granted to the Licensee only.
3.7. The Company retains the right to modify the Software at any time.
4. CONDITIONS OF USE
4.1. As a condition of use, the Licensee agrees to the following:
4.1.1. Certain components of The Service permit or require you to open an account (including setting up a password). You are entirely responsible for maintaining the confidentiality of your account information, including your password, and for any and all activity that occurs under your account. You agree to notify The Company immediately of any unauthorised use of your account or password, or any other breach of security.
4.1.2. You must not use The Service to harass, threaten, impersonate, or intimidate anyone.
4.1.3. You must not upload, post, email, transmit, or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libellous, invasive of another's privacy, hateful, or racially or ethnically objectionable.
4.1.4. You must not upload, post, email, transmit, or otherwise make available any content that is in violation of copyright, trademark or other law protecting intellectual property in any jurisdiction, or that violates any individual’s publicity or privacy rights.
4.1.5. You will take appropriate care when uploading sensitive or confidential information.
4.1.6. You must not upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," "affiliate links," or any other form of solicitation.
4.1.7. You must not transmit any worms or viruses or any code of a destructive or technically harmful nature, as a breach of this would constitute a criminal offence.
4.1.8. You must not violate any local laws in your jurisdiction (including but not limited to intellectual property laws).
4.1.9. You must not use The Software for any illegal or unauthorised purpose. You agree to comply with all local laws regarding online conduct and acceptable content.
5. DATA PROTECTION AND CONFIDENTIALITY
5.1. The Parties acknowledge that data protection and confidentiality is a shared responsibility.
5.2. The Company will collect and store that data which is needed and no more. The Company does not sell data to third parties. The Company takes reasonable precautions (both processes and technologies) to protect this data.
5.3. The activities of The Company are governed by the Data Protection Act (1988) and subsequent revisions and it is registered with the Information Commissioner’s Office (ICO) in the United Kingdom as a Data Controller.
5.4. The Company follows procedures which are set out in its Data Protection and Security Policy, a copy of which is available on request.
5.5. The Company may ask you for certain information, referred to as "personal information," which includes information that pertains to your identity. Such information may include, but is not limited to, items such as your name, email address, company, job title and company address.
5.6. The Licensee may be required to provide personal information to access or use certain parts or features of the Software. For example, you will be asked to provide your name and a valid email address to establish a user account. If you wish to establish an account with The Company, you will also be asked (in some cases) to provide personal and/or corporate financial and billing information. If you do not provide the requested personal information, you may not be able to access or use the particular component of the Service where such information is required.
5.7. The Licensee is required to ensure that data about you is accurate and up to date. The Licensee is also required to take reasonable steps to protect data and access to the Software.
5.8 There may be other instances in which The Company collects information from you that is more general in nature ("general information"). Such information may include information recorded by our server logs from your browser such as your Internet Protocol (IP) address (which enables us to identify your computer or device on a Transmission Control Protocol/Internet Protocol (TCP/IP) network like the internet), and the specific webpage you requested. Such general information may be collected from you whenever you access or use the Software, whether or not you provide us with any other personal information.
5.9. The Company will only retain your information to the extent: (a) it is needed for the purposes which have been conveyed to you; (b) The Company is required by law to maintain such information; or (c) it is needed for us to address any issues or inquiries that you may have. When your information is no longer required, The Company will dispose of such information by destroying it or erasing it.
5.10. If The Company or substantially all of its assets were to be acquired, customer information would likely be one of the assets that is transferred or acquired by a third party. You acknowledge that such transfers may occur.
6. TRAINING & SUPPORT
6.1. At the start of the contract, The Company and the Licensee will agree the level of service which is required for The Company to provide appropriate training and technical assistance in operating the Software and this may be subject to a separate commercial agreement between the parties.
6.2. The Company reserves the right to charge for technical support at its standard rates in the following circumstances:
6.2.1. where the Licensee is using unsupported hardware or software;
6.2.2. In the event that The Company provides support/assistance in data recovery/system configuration after any major outage affecting the Licensee’s IT systems and the Licensee did not have a suitable back up system in place.
6.3. The Company is not obliged to provide support in respect of any: (i) modification to the Software by any person other than employees of The Company; and/or (ii) any use of the Software which is not in accordance with the terms of this Agreement and/or (iii) which arises out of the non-compliance of the Licensee’s IT systems with the requirements set out in any technical specifications
7.1. The Licensee expressly understands and agrees that the use of the Software is at your sole risk.
7.2. The Software is provided on an “as is” and “as available” basis and no warranty, express or implied, as to condition, quality, performance, satisfactory quality, merchantability or fitness for purpose of the Software is given and all such warranties are hereby excluded. Moreover, the Licensee has had an opportunity to evaluate the Software at no cost in a limited evaluation period.
7.3. The Company undertakes that the Software provided to the Licensee under these Terms shall be provided with reasonable care and skill.
7.4. The Company does not guarantee that the Software will be error-free, or secure or free from viruses.
8. LIMITATION OF LIABILITIES
8.1. Subject to clause 8.6:
8.1.1. in no event shall The Company be liable for:
22.214.171.124. any loss of profits, business, anticipated savings, goods, contract, use, depletion of goodwill, reputation or similar losses; or
126.96.36.199. any loss of data; or
188.8.131.52. any direct, indirect, special, incidental, exemplary, punitive or consequential loss or damage arising from the supply or use of the Software;
184.108.40.206. any cost of procurement of substitute goods or services; or any other intangible losses.
220.127.116.11. any loss or damages that may be incurred by you as a result of any changes that The Company may make to the Software; (b) any permanent or temporary cessation of the service; (c) the deletion or corruption of or failure to store any content; or (d) your failure to keep your password or account details secure.
8.2. The limitations and exclusions of liability above shall apply irrespective of the theory of liability, including contract (including fundamental breach), warranty, product liability, strict liability, tort (including negligence), or other theory, even if The Company has been advised of the possibility of such damages.
8.3. The Licensee specifically acknowledges that The Company shall not be liable for user content or the defamatory, offensive, or illegal conduct of any third party and that the risk of harm or damage from the foregoing rests entirely with The Licensee.
8.4. The Licensee will indemnify and hold The Company against any and all liabilities and costs (including reasonable legal fees) incurred by The Company in connection with any claim arising out of your breach of the Agreement. The Company reserves the right, at its own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you.
8.5. The Licensee's remedy for any damage or loss in any way connected with the Software provided by The Company shall be in the first instance replacement of the Software; and
8.6. The Company’s liability for direct losses arising out of or in connection with these Terms shall in no circumstances exceed in relation to a single claim, 100% of the Fees payable in the first year of the Licence.
8.6. Nothing in these Terms excludes the liability of The Company:
8.6.1. for death or personal injury caused by The Company’s negligence; or
8.6.2. for fraud or fraudulent misrepresentation.
9. IP OWNERSHIP
9.1. The Licensee acknowledges and agrees that all right, title and interest including, but not limited to, copyright and other intellectual property rights in and to the software including but not limited to text, graphics, user interfaces, visual interfaces, avatars, trademarks, logos, sounds, postures, artwork, content, props, game scripting, computer code, html, asp, aspx, dll, graphic, image and text files, collectively “ProReal Content”, including but not limited to the design, structure, selection, coordination, expression, “look and feel,” and arrangement of such ProReal Content, contained in the Software and all related materials and websites is owned, controlled, or licenced by or to The Company, and is protected by trade dress, copyright and trademark laws, and various other intellectual property rights.
9.2. No ProReal Content may be used in a manner that creates confusion among consumers or that suggests that you (or your website) are sponsored or endorsed by The Company, or affiliated with The Company,
9.3. No ProReal Content beyond the ProReal name and logo may be used, and any such use must be of the full ProReal name and/or unaltered and current ProReal logo and any such use may in no way disparage The Company, any user of the Software, or any third party,
9.4. any website that uses ProReal Content must include in prominent text “Licenced users of ProReal.”
9.5. You agree to make no other uses of the ProReal name and logo beyond those expressly allowed herein, pursuant to a Use Licence.
9.6. Except as expressly provided in this Agreement or otherwise permitted by law, no ProReal Content may be used, copied, reproduced, modified, republished, uploaded, posted, publicly displayed, publicly performed, publicly performed by means of a digital audio transmission, encoded, translated, transmitted, or distributed in any way to any other computer, server, website, or any other medium for publication or distribution or for any commercial enterprise or purpose, without The Company’s express prior written consent.
10. TERM AND TERMINATION OF THE LICENCE
10.1. This Licence shall commence on the Effective Date and The Company will provide the Licensee with a licence for an initial period, typically 12 months (“Initial Term”) and subsequently for 12 month periods for as long as the Software is offered and Licensee pays all sums due to The Company for the Software (each a “Renewal Period”); and the Initial Term together with any subsequent Renewal Periods shall constitute the Term.
10.2 Without affecting any other right or remedy available to it, either party may terminate these Terms with immediate effect by giving written notice to the other party if:
10.2.1 the other party fails to pay any amount due under these Terms on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
10.2.2 the other party commits a material breach of any other term of these Terms which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so; or
10.2.3 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business or is the subject of involuntary winding up, insolvency and/or bankruptcy procedure.
10.3.The Company may destroy or otherwise dispose of any of the Licensee Data in its possession unless it receives, no later than 28 days after the effective date of the termination of these Terms, a written request for the delivery to the Licensee of such Licensee Data.
10.4. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of these Terms which existed at or before the date of termination shall not be affected or prejudiced.
11. PAYMENTS, TRIALS AND EXPIRY
11.1 Access to the Software allows the Licensee to create, share and save a number of user-modified virtual reality worlds. These functions vary depending on the permission levels granted.
11. 2. Access to the Software is granted following enrolment in either
a limited period trial
a ProReal training course
participation as a client in a facilitated intervention
11.3. Payment of the licence fee is due at the end of any limited period trial, and following successful completion of ProReal training, subject to the agreement of the parties.
11.4. Renewal of the licence is required when an existing licence or trial period expires, and if payment is not received, the Software will be disabled and you will not be permitted to continue to access the Software.
12.1. In the event of any controversy or dispute between the Parties, both Parties shall attempt promptly and in good faith, to resolve any such dispute. Prior to any formal proceedings being commenced in accordance with Clause 18, all disputes between any of the parties arising out of these Terms shall be referred to a designated executive of Licensee and a designated executive of The Company for resolution. If the Parties cannot resolve the dispute within a reasonable time (not to exceed 60 days) then either party may submit such dispute to mediation.
12.2. You agree that regardless of any statue or law to the contrary, any claim under this Agreement must be brought within one (1) year after the cause of action arises, or such claim or cause of action is forever barred.
13. ENTIRE TERMS
13.1. These Terms (together with the separate written confirmation of the Software being licensed and Fees payable) constitute the entire agreement between The Company and the Licensee in relation to the licensing of the Software and supersede all prior communications, agreements and proposals whether written or oral in relation to its subject matter.
13.2. If any portion of the Agreement is held to be invalid or unenforceable, such provision shall be stricken and the remainder of the Agreement enforced as written. If The Company does not exercise or enforce any legal right or remedy including those contained in the Agreement or arising under applicable law, this will not be taken to be a formal waiver of our rights. The Company may assign or delegate all rights and obligations under the Agreement, fully or partially.
14.1. No failure or delay by a party to exercise any right or remedy provided under this Terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
15.1. If any provision or part-provision of this Terms is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable.
16. FORCE MAJEURE
16.1 Neither party shall be in breach of these Terms nor liable for delay in performing, or failure to perform, any of its obligations under these Terms if such delay or failure results from events, circumstances or causes beyond its reasonable control.
17. GOVERNING LAW
17.1. All matters arising out of or in connection with these Terms shall be governed by and construed in accordance with the laws of England and Wales and, subject to clause 12, the parties submit to the exclusive jurisdiction of the English courts.