End User Licence Agreement
Please read the terms of this end-user licence agreement (EULA) carefully before downloading this App. You should print a copy of this EULA for future reference.
This EULA is a legal agreement between the end-user (you) and AGROVISTA UK LIMITED incorporated and registered in England and Wales with company number 03525529 whose registered office is at Rutherford House, Nottingham Science & Technology Park, University Boulevard, Nottingham, NG7 2QP (Licensor, us or we) for the use of PotatoSize mobile App software, the data supplied with the software and the associated media (the App).
We license the use of the App to you on the basis of this EULA and subject to any rules or policies (Appstore Rules) applied by any Appstore provider or operator from whose site (the Appstore) you download the App. We do not sell the App to you. We or our licensors remain owners of the App at all times.
The App requires an Apple phone or tablet with at least iOS version 9.2 operating system.
By clicking on the accept button and downloading and/or using the App you agree to the terms of this EULA which will bind you and your employees and representatives. The terms of this EULA include, in particular, limitations on our liability in Clause 2.1.
If you do not agree to the terms of this EULA, we will not license the App to you and you must either stop the downloading process now by clicking on the "Cancel" button below or cease using the App immediately (as applicable).
In this EULA, any words following the terms including, include, in particular or for example or any similar phrase shall be construed as illustrative and shall not limit the generality of the related general words.
1.1 Any service or information provided on this App by us is done so on an “AS IS” and an “AS AVAILABLE” basis and we expressly disclaim and exclude to the fullest extent permitted by law all warranties, conditions, representations and terms, whether express or implied by statute, common law or otherwise, with respect to this App and the information, content, materials, goods or services included in this App, including any warranties, conditions or representations in respect of accuracy or completeness, fitness for a particular purpose, title, non-infringement, the condition of any information or services displayed or provided by the App and whether the App is up to date.
1.2 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. You agree that you use the App at your own risk.
1.3 We reserve the right, at our sole discretion, to amend or withdraw any information or services offered on this App.
2. Liability and indemnity
2.1 We exclude all liability for any claim, loss, demands or damages of any kind whatsoever (whether such claims, loss, demands or damages were foreseeable, known or otherwise) arising out of or in connection with the use of, or inability to use, this App or the information, content or materials included on this App, including: direct, indirect or consequential loss or damage; loss of actual or anticipated profits (including loss of profits on contracts); loss of revenue; loss of business; loss of opportunity; loss of anticipated savings; loss of goodwill; loss of reputation; loss or damage to or corruption of data; loss of use of money or otherwise, and whether or not advised of the possibility of such claim, loss, demand or damages and whether arising in delict (including negligence), contract or otherwise.
2.2 Nothing in this EULA excludes or limits our liability for: (a) death or personal injury caused by our negligence (or that of our employees, agents or directors); or (b) any act of fraud by us; or (c) any liability which may not be limited or excluded by law.
2.3 The Appstore provider has no liability whatsoever to you under this EULA or in relation to the App.
2.4 You agree to indemnify us in full in respect of liabilities, costs, damages and losses (including any indirect or consequential losses or losses of profit) incurred or suffered by or imposed upon us (including any claims by third parties in relation to your use of the App) arising out of, or in connection with, any failure by you to comply with the terms of this EULA or which arise otherwise as a result of your negligence.
3. Scope of licence
3.1 In consideration of you paying a nominal per use charge of £1 in respect of your use of the service linked to this App and agreeing to abide by the terms of this EULA and the Appstore Rules, we grant you a non-transferable, non-exclusive licence to use the App on the Devices subject to the terms of this EULA and the Appstore Rules, which are incorporated into this EULA by reference. We reserve all other rights.
3.2 We only supply the App to you for your business purposes and you agree not to use the App for any other purpose without our prior written consent.
3.3 In the event that we fail to comply with any warranty under this EULA (to the extent the warranty is not effectively excluded) you may apply to the Appstore provider to refund the Purchase Price of the App to you. The Appstore provider shall owe you no other obligation whatsoever in relation to the App.
4.1 The terms of this EULA apply to the App and any of the services accessible through the App, including any updates or supplements to the App, unless they come with separate terms, in which case those terms apply.
4.2 If any open-source software is included in the App, the terms of an open-source licence may override some of the terms of this EULA.
4.3 If we change any of the terms of this EULA, you may need to download the latest version of the App and accept the new terms in order to continue using the App. We will not change the terms of this EULA without notifying you.
4.4 From time to time updates to the App may be issued through the Appstore. Depending on the update, you may not be able to use the App until you have downloaded the latest version of the App and accepted any new terms.
4.5 You will be assumed to have obtained permission from the owners of the mobile telephone or handheld devices that are controlled, but not owned, by you (Devices), to download a copy of the App onto the Devices. You require internet access to use the App and 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 on or in relation to any Device, whether or not it is owned by you.
4.6 The App may contain links to other independent third-party websites (Third-party Sites). Third-party Sites are not under our control, and we are not responsible for and do not endorse their content. We are not liable for any offensive, indecent, or objectionable content contained on a Third-party Site. You will need to make your own independent judgement regarding your interaction with any Third-party Sites, including the purchase and use of any products or services accessible through them. We shall have no liability to you for content that may be found to be offensive.
5. Restrictions on use
Except as expressly set out in this EULA or as permitted by any local law, you agree:
(a) not to copy the App except where such copying is incidental to normal use of the App or where it is necessary for the purpose of back-up or operational security;
(b) not to rent, lease, sub-licence, sell, redistribute, loan, translate, merge, adapt, vary or modify the App;
(c) not to make alterations to, or modifications of, the whole or any part of the App, or permit the App or any part of it to be combined with, or become incorporated in, any other programs;
(d) not to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the App or attempt to do any such thing except to the extent that (by law) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the App with another software program and provided that the information obtained by you during such activities:
(i) is used only for the purpose of achieving inter-operability of the App with another software program;
(ii) is not unnecessarily disclosed or communicated without our prior written consent to any third party; and
(iii) is not used to create any software that is substantially similar to the App;
(e) to keep all copies of the App secure and to maintain accurate and up-to-date records of the number and locations of all copies of the App;
(f) to include our copyright notice on all entire and partial copies you make of the App on any medium;
(g) not to provide or otherwise make available the App in whole or in part (including object and source code) to any third party (other than your employees) without our prior written consent;
(h) to comply with all technology control or export laws and regulations that apply to the technology used or supported by the App (the App Technology);
(i) not to use the App 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 or any operating system;
(j) not to infringe our intellectual property rights or those of any third party in relation to your use of the App, including the submission of any material (to the extent that such use is not licenced by this EULA);
(k) not to transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the App;
(l) not to use the App in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; and
(m) not to collect or harvest any information or data from the App or our systems or attempt to decipher any transmissions to or from the servers running the App,
together, the Licence Restrictions. If you breach any of the Licence Restrictions, you may be subject to prosecution and damages.
6. Your obligations
6.1 You must:
(a) supervise and control use of the App and ensure that the App is used by your employees and representatives in accordance with the terms of this EULA; and
(b) ensure that any submission made by you to the App is accurate and complete.
6.2 You hereby grant us an unlimited and perpetual licence to use, in any way, any submission made by you in connection with the App.
7. Intellectual property rights
7.1 You acknowledge that all intellectual property rights in the App anywhere in the world belong to us or our licensors, that rights in the App are licensed (not sold) to you, and that you have no rights in, or to, the App or the App Technology other than the right to use each of them in accordance with the terms of this EULA.
7.2 You acknowledge that you have no right to have access to the App in source-code form.
8.1 By using the App, you acknowledge and agree that internet transmissions are never completely private or secure. You understand that any information you send using the App may be read or intercepted by others, even if there is a special notice that a particular transmission is encrypted.
8.2 You agree that we and the Appstore provider may collect and use technical data and related information, including but not limited to technical information about your Device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the App. We may use this information, as long as it is in a form that does not personally identify you, to improve our products or to provide services or technologies to you.
8.3 We will not collect any identifiable personal data about you without first notifying you, providing you details of our intended data processing activities and obtaining your prior consent to such use of your personal data.
8.4 We will not change the terms of this Clause without notifying you and obtaining your consent. If we change the terms of this Clause, you may need to download the latest version of the App and accept the new terms in order to continue using the App.
9.1 The licence to use this App in accordance with this EULA is effective until terminated by you or us. We may terminate this licence at any time. Your rights under this licence will terminate automatically without notice from us if you fail to comply with any term(s) of this EULA.
9.2 Upon termination of this EULA for any reason:
(a) all rights granted to you under this EULA will terminate automatically;
(b) you shall immediately cease all activities authorised by this EULA; and
(c) you shall immediately delete or remove the App from all Devices, and immediately destroy all copies, full or partial, of the App then in your possession, custody or control and certify to us that you have done so.
10. Third party rights
10.1 The Appstore provider may enforce the provisions of this EULA against you as a third party beneficiary in accordance with the Contracts (Rights of Third Parties) Act 1999.
10.2 Without prejudice to the generality of Clause 10.1, you acknowledge and agree that the Appstore provider shall have the benefit of Clauses 1 and 2 of this EULA.
10.3 Notwithstanding Clause 12.7, this Clause 11 shall be governed by the laws of England.
11. Communication between us
11.1 Any notice given by you to us, or by us to you, will be deemed received and properly served immediately when posted on our website, 24 hours after an email is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
11.2 Notices for our attention should be sent to: firstname.lastname@example.org or by prepaid post to The James Hutton Institute, Invergowrie, Dundee, DD2 5DA.
11.3 If we have to contact you or give you notice in writing, we will do so by email or by pre-paid post to the address you provide to us in your request for the App via our website at http://www.hutton.ac.uk/potatosize.
12. Other important terms
12.1 We may transfer our rights and obligations under this EULA to another organisation, but this will not affect your rights or your obligations under this EULA. You may not transfer your rights or obligations under this EULA to another person.
12.2 This EULA (and any document expressly referred to herein) constitutes the entire agreement between us and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter. You agree that you shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this EULA (or any document referred to herein). You agree that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this EULA (or any document expressly referred to herein).
12.3 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.
12.4 Each of the clauses of this EULA operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining clauses will remain in full force and effect.
12.5 You may not use or otherwise export or re-export the App except as authorised by the laws of the jurisdiction in which the App was obtained and United States law. In particular, but without limitation, the App may not be exported or re-exported (a) into any U.S. embargoed countries or any country which has been designated by the U.S. Government as a “terrorist supporting” country or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the App, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
12.6 This EULA is written in the English language. If this EULA is translated into any other language, the English language version shall prevail. Any notice given under or in connection with this EULA will only be effective if it is in the English language.
12.7 With the exception of Clause 10, this EULA, its subject matter and its formation (and any non-contractual disputes or claims) are governed by Scots law and you and you irrevocably submit to the exclusive jurisdiction of the Scottish courts.