The copyright and other intellectual property rights in this Actual Experience Digital User Software ("Software") and any documentation provided to you (whether electronic or printed) which accompanies the Software ("Documentation") are owned by Actual Experience plc, a company registered in England and Wales with company number 06838738 whose registered office is at Quay House, The Ambury, Bath, Somerset BA1 1UA, United Kingdom ("Actual Experience", "us", "our" or "we"). We license use of the Software and Documentation to you on the basis of this End User Licence Agreement ("Licence"). We do not sell the Software or Documentation to you. Please read through the following Licence conditions carefully.
IMPORTANT NOTICE TO ALL USERS:
You should print a copy of this Licence for future reference.
In consideration of your agreeing to abide by the terms of this Licence and the benefit you and others derive from the Actual Experience Digital User, Actual Experience hereby grants to you a non-exclusive, non-transferable licence to use the Software and Documentation on the terms of this Licence. "Use" of the Software means:
Except as expressly set out in this Licence or as permitted by any local law, you undertake:
Actual Experience shall have the right to use, copy, store, transmit, display and analyse any electronic data, information or material, including any IP address sourced by the Software when you run or use the Software. This information will always be anonymised and aggregated before it is shared. You agree that the Software may collect measurement data that once anonymised and aggregated can be used by Actual Experience and shared by Actual Experience for analytical reports. More information about the data we collect and the uses being made of such data is provided in our Privacy Policy at www.actual-experience.com.
You are responsible for your compliance with all licenses and approvals required under the laws that are applicable to you and your import, export and use of the Software. Actual Experience shall not be liable for any failure by you to comply with any applicable laws. Actual Experience will not provide the Software except in compliance with the export laws that apply to Actual Experience and if any such laws prevent Actual Experience from complying with any of its obligations under this Licence, such failure shall be excused and shall not be a breach of this Licence.
This Licence sets out the full extent of our obligations and liabilities in respect of the supply of the Software and Documentation. Except as expressly stated in this Licence, there are no conditions, warranties, representations, undertakings or other terms, express or implied, that are binding on us. Any condition, warranty, representation or other term concerning the supply of the Software and Documentation which might otherwise be implied into, or incorporated in, this Licence whether by statute, common law, trade usage, course of dealing or otherwise, is excluded to the fullest extent permitted by law.
You acknowledge that the Software and Documentation has not been developed to meet your individual requirements. Actual Experience does not warrant or promise that the Software or Documentation will meet your requirements or that the operation of the Software will be uninterrupted or error free or that the Software will not affect the operation of other installed applications or that defects in the Software will be corrected (although we will endeavour to help you where we can at support@actual-experience.com).
You acknowledge that you shall use the Software and Documentation at your own risk.
Subject to the last paragraph of this section, we shall not under any circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Licence or your use of or inability to use the Software and/or the Documentation (or from errors or deficiencies in either) for:
Other than the losses set out in the paragraph above (for which we are not liable) and subject to the paragraph below, our maximum aggregate liability under or in connection with this Licence whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to £200 in any 12 month period.
Nothing in this Licence shall limit or exclude our liability for death or personal injury resulting from our negligence, fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited by English law.
We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this Licence that is caused by any act or event beyond our reasonable control, including without limitation failure of public or private telecommunications networks.
All intellectual property rights in the Software and the Documentation throughout the world belong to Actual Experience. Rights in the Software are licensed (not sold) to you, and you have no rights in, or to, the Software or the Documentation other than the right to use them in accordance with the terms of this Licence. You have no right to have access to the Software in source code form or in unlocked coding or with comments (unless you have received Actual Experience’s express written permission to do so).
Aspects of the Software and Documentation, including the specific design and structure of individual programs, form part of Actual Experience's trade secrets and/or copyrighted material. You therefore agree not to disclose, provide, copy or otherwise make available such trade secrets or copyrighted material in any form to any third party without Actual Experience's prior written approval.
This Licence is effective from the moment of acceptance by you of this Licence or upon any use of the Software until you terminate it by destroying the Software and Documentation together with any or all copies. It will also terminate if you fail to abide by its terms.
Upon termination for any reason, all rights granted to you under this Licence shall cease; you must immediately cease all activities authorised by this Licence; and you must immediately delete or remove the Software from all computer and/or other equipment in your possession, and immediately destroy or return to us (at our option) all copies of the Software and Documentation then in your possession, custody or control and, in the case of destruction, certify to us that you have done so.
Where you have entered into a separate services agreement with Actual Experience for the provision of services that utilise this Software, and any term of this Licence conflicts with any term of the service agreement, the latter shall prevail.
You will not contest the validity or enforceability of this Licence solely because it was concluded electronically.
You may not transfer, assign, charge or otherwise dispose of this Licence, or any of your rights or obligations arising under it, without Actual Experience's prior written consent.
This Licence and any document or policy expressly referred to in it constitutes the entire understanding between the parties with respect to the subject matter of this Licence.
Each of the clauses and conditions of this Licence operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining clauses and conditions will remain in full force and effect.
If we fail to insist that you perform any of your obligations under this Licence, 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.
This Licence, its subject matter and its formation (and any non-contractual disputes or claims) are governed by English law. If you are a business customer, you and we irrevocably agree to the exclusive jurisdiction of the courts of England and Wales.
Unless expressly provided in this Licence, no term of this Licence is enforceable by any person who is not a party to it.
You may contact us by e-mail at enquiries@actual-experience.com or by pre-paid post to Customer Services at Actual Experience plc, Quay House, The Ambury, Bath, Somerset BA1 1UA, United Kingdom. Our telephone number is +44 1225 585 868. More information on Actual Experience plc is provided at www.actual-experience.com.
Please note that 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 e-mail 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 e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
Digital performance is measured from your computer, phone or other device (each a “device”) using a small software program known as the ‘Digital User’. The Digital User does not monitor what you do on your device; instead it sends test messages to measure local, national and global digital performance as seen by your device. Measurement data is transmitted to our Analytics Cloud. Our Analytics Cloud then analyses your data in order to provide information about your digital performance. The Analytics Cloud may also analyse data from the Digital User located on your device together with data from other Digital Users located on other devices, in two further ways: to provide businesses with information about the human experience of their and their industry’s services; and to provide regulators and agencies with information about the human experience of digital infrastructure.
Actual Experience – End-User Licence Agreement –Version 1.6 (May 2018)
