Refract DNS - end user licence agreement

Please read this EULA carefully, as it sets out the basis upon which we license the Software for use.

If you purchase the Software from a reseller, then additional terms and conditions may apply between you and the reseller, but they shall not affect our rights or your obligations under this EULA.

This EULA applies to the use of the Software on a paid basis and on a trial basis.

Before you download the Software, you will be asked to give your express agreement to the provisions of this EULA.

1.        Definitions

1.1        In this EULA:

"Charges" means those amounts payable by the User in respect of the licensing of the Software under this EULA;

"Documentation" means the documentation relating to the use of the Software produced by the Licensor and delivered or made available by the Licensor to the User, including all updates thereto;

"Effective Date" means the date upon which the User purchases the Software;

"EULA" means this end user licence agreement, including any amendments to this end user licence agreement from time to time;

"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

"Licence Key" means an alphanumeric licence key for the Software issued by the Licensor that enables the installation and use of the Software;

"Licensor" means Refract DNS Ltd, a company incorporated in England and Wales (registration number 11530640) having its registered office at The Guild, High Street, Bath, United Kingdom, BA1 5EB;

"Maintenance Services" means the supply and/or making available to the User of Updates and Upgrades;

"Services" means any services that the Licensor provides to the User, or has an obligation to provide to the User, under this EULA;

"Software" means Refract DNS as supplied or made available by the Licensor to the User, including any Updates and/or Upgrades applied to Refract DNS by the User;

"Software Defect" means a defect, error or bug in the Software having a material adverse effect on the functionality or performance of the Software, but excluding any defect, error or bug caused by or arising as a result of:

(a)        any act or omission of the User or any person authorised by the User to use the Software;

(b)        any use of the Software contrary to the Documentation by the User or any person authorised by the User to use the Software;

(c)        a failure of the User to perform or observe any of its obligations in this EULA; and/or

(d)        an incompatibility between the Software and any other system, network, application, program, hardware or software not specified as compatible in the Documentation from time to time;

"Source Code" means the Software code in human-readable form or any part of the Software code in human-readable form, including code compiled to create the Software or decompiled from the Software, but excluding interpreted code comprised in the Software;

"Support Services" means support in relation to the use of the Software and the identification and resolution of errors in the Software;

"Term" means the term of this EULA, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;

"Update" means a hotfix, patch or minor version update to the Software;

"Upgrade" means a major version upgrade of the Software; and

"User" means the person to whom the Licensor grants a right to use the Software under this EULA.

2.        Term

2.1        This EULA shall come into force upon the Effective Date.

2.2        This EULA shall continue in force indefinitely, subject to termination in accordance with Clause 13 or any other provision of this EULA.

3.        Licence

3.1        The Licensor hereby grants to the User from the date of supply of the Software to the User until the end of the Term a worldwide, non-exclusive licence to:

(a)        install and use a single instance of the Software on a single device by means of the Licence Key;

(b)        store and view a single copy of the Documentation on the same device; and

(c)        to make and store a backup copy of the Software,

        subject to the limitations and prohibitions set out and referred to in this Clause 3.

3.2        The User may not sub-license and must not purport to sub-license any rights granted under Clause 3.1.

3.3        Save to the extent expressly permitted by this EULA or required by applicable law on a non-excludable basis, any licence granted under this Clause 3 shall be subject to the following prohibitions:

(a)        the User must not sell, resell, rent, lease, loan, supply, publish, distribute or redistribute the Software or Documentation;

(b)        the User must not alter, edit or adapt the Software or Documentation;

(c)        the User must not decompile, de-obfuscate or reverse engineer, or attempt to decompile, de-obfuscate or reverse engineer, the Software; and

(d)        the User must not use the Software in contravention of any prohibition or restriction relating to use set out in the Documentation.

3.4        The User shall be responsible for the security of copies of the Software and Documentation supplied to the User under this EULA, or made by the User, and shall use all reasonable endeavours (including all reasonable security measures) to ensure that access to such copies is restricted to persons authorised to use them under this EULA.

3.5        Notwithstanding any other provision of this EULA, the open source libraries supplied with the Software shall be subject to their own licensing terms, copies of which are included with the Software.

3.6        If the User has been granted a trial licence of the Software, then all the provisions of this EULA shall apply during the trial period, providing that:

(a)        the User shall have no obligation to pay any Charges in relation to the licensing of the Software during the trial period;

(b)        this EULA, and the licence of the Software under this EULA, shall automatically terminate at the end of the trial period;

(c)        the functionality of the Software during the trial period may be limited by the Licensor;

(d)        Updates and Upgrades to the Software will not be made available to the User during the trial period; and

(e)        subject to Clause 12.1, the Licensor shall have no liability to the User with respect to any use of the Software during the trial period.

4.        Source Code

4.1        Nothing in this EULA shall give to the User or any other person any right to access or use the Source Code or constitute any licence of the Source Code.

5.        Maintenance Services

5.1        The Licensor may provide Maintenance Services to the User by issuing Updates and Upgrades during the Term but shall have no obligation to do so.

5.2        T‌he User acknowledges that:

(a)        Updates for the User's version of the Software published by the Licensor during the Term will be made available to the User without the payment of additional Charges; but

(b)        Upgrades will be subject to additional Charges, unless the Upgrade is released within the period of 12 months following the Effective Date.

6.        Support Services

6.1        The Licensor may provide Support Services to the User during the Term, but shall have no obligation to do so.

6.2        T‌he User acknowledges that, if the Licensor does provide Support Services in relation to any issue experienced by the User, that does not guarantee that the issue will be resolved to the User's satisfaction or otherwise.

7.        No assignment of Intellectual Property Rights

7.1        Nothing in this EULA shall operate to assign or transfer any Intellectual Property Rights from the Licensor to the User.

8.        Charges

8.1        The User must pay the Charges to the Licensor or to the Licensor's appointed reseller in advance of the release of the Software to the User.

8.2        Applicable sales taxes and/or value added taxes may be payable by the User to the Licensor in addition to the basic Charges.

9.        Warranties

9.1        The Licensor warrants to the User that:

(a)        the Software will be supplied free from Software Defects and will remain free from Software Defects for a period of 3 months following the supply of the Software; and

(b)        the Software will be supplied free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs.

9.2        The Licensor warrants to the User that the Software, when used by the User in accordance with this EULA, will not infringe the Intellectual Property Rights of any person under English law.

9.3        If the Licensor reasonably determines, or any third party alleges, that the use of the Software by the User in accordance with this EULA infringes any person's Intellectual Property Rights, the Licensor may at its own cost and expense:

(a)        modify the Software in such a way that it no longer infringes the relevant Intellectual Property Rights; or

(b)        procure for the User the right to use the Software in accordance with this EULA.

9.4        The User warrants to the Licensor that it has the legal right and authority to enter into this EULA and to perform its obligations under this EULA.

9.5        All of the parties' warranties and representations in respect of the subject matter of this EULA are expressly set out in this EULA. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this EULA will be implied into this EULA or any related contract.

10.        Acknowledgements and warranty limitations

10.1        ‌The User acknowledges that the Software is designed to enable the creation of custom DNS (Domain Name System) settings and an attacker with the necessary system privileges could use the Software to redirect requests made by the computer on which the Software is installed; the User shall be responsible for ensuring that the computer on which the Software is installed is not vulnerable to such attacks.

10.2        The User acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this EULA, the Licensor gives no warranty or representation that the Software will be entirely secure.

10.3        The User acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this EULA, the Licensor gives no warranty or representation that the Software will be wholly free from defects, errors and bugs.

10.4        The User acknowledges that the Software is only designed to be compatible with that software specified as compatible in the Documentation; and the Licensor does not warrant or represent that the Software will be compatible with any other software. In particular, the Licensor does not warrant or represent that it will update the Software to reflect changes to the Microsoft Windows operating system from time to time.

10.5        Except to the extent expressly provided otherwise in this EULA, the Licensor does not warrant or represent that the Software or the use of the Software by the User will not give rise to any legal liability on the part of the User or any other person.

11.        Indemnity

11.1        The User shall indemnify and shall keep indemnified the Licensor against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Licensor and arising directly or indirectly as a result of any breach by the User of Clause 3.

12.        Limitations and exclusions of liability

12.1        Nothing in this EULA will:

(a)        limit or exclude any liability for death or personal injury resulting from negligence;

(b)        limit or exclude any liability for fraud or fraudulent misrepresentation;

(c)        limit any liabilities in any way that is not permitted under applicable law; or

(d)        exclude any liabilities that may not be excluded under applicable law,

        and, if a party is a consumer, that party's statutory rights will not be excluded or limited by this EULA, except to the extent permitted by law.

12.2        The limitations and exclusions of liability set out in this Clause 12 and elsewhere in this EULA:

(a)        are subject to Clause 12.1; and

(b)        govern all liabilities arising under this EULA or relating to the subject matter of this EULA, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this EULA, except that Clauses 12.4 to 12.9 do not apply to any liability of the Licensor under Clause 9.2.

12.3        The Licensor will not be liable to the User in respect of any losses arising out of a Force Majeure Event.

12.4        The Licensor will not be liable to the User in respect of any loss of profits or anticipated savings.

12.5        The Licensor will not be liable to the User in respect of any loss of revenue or income.

12.6        The Licensor will not be liable to the User in respect of any loss of business, contracts or opportunities.

12.7        The Licensor will not be liable to the User in respect of any loss or corruption of any data, database or software.

12.8        The Licensor will not be liable to the User in respect of any special, indirect or consequential loss or damage.

12.9        ‌The Licensor will be liable to the User in respect of any for any loss or damage suffered or incurred by the User and arising out of any breach of security of the computer system on which the Software is installed, including any loss or damage arising out of unauthorised changes to DNS settings.

12.10        The liability of the Licensor to the User under this EULA in respect of any event or series of related events will not exceed GBP 100.

12.11        The aggregate liability of the Licensor to the User under this EULA will not exceed GBP 1,000.

13.        Termination

13.1        The User may terminate this EULA by giving to the Licensor‌ written notice of termination.

13.2        The Licensor may terminate this EULA immediately by giving written notice of termination to the other party if the User commits any breach of this EULA.

13.3        This EULA shall terminate immediately and automatically if:

(a)        the User: is dissolved; ceases to conduct all (or substantially all) of its business; is or becomes unable to pay its debts as they fall due; is or becomes insolvent or is declared insolvent; or convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b)        an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the User;

(c)        an order is made for the winding up of the User, or the User passes a resolution for its winding up; or

(d)        if the User is an individual: the User dies; as a result of illness or incapacity, the User becomes incapable of managing his or her own affairs; or the User is the subject of a bankruptcy petition or order.

13.4        The Licensor may terminate this EULA immediately by giving written notice to the User if any amount due to be paid by the User to the Licensor under this EULA is unpaid by the due date.

14.        Effects of termination

14.1        Upon the termination of this EULA, all of the provisions of this EULA shall cease to have effect, save that the following provisions of this EULA shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 11, 12, 14 and 15.

14.2        Except to the extent that this EULA expressly provides otherwise, the termination of this EULA shall not affect the accrued rights of either party.

14.3        For the avoidance of doubt, the licences of the Software and Documentation in this EULA shall terminate upon the termination of this EULA; and, accordingly, the User must immediately cease to use the Software and Documentation upon the termination of this EULA.

14.4        Within 48 hours following the termination of this EULA, the User must irrevocably delete from all computer systems in its possession or control all copies of the Software and the Documentation.

14.5        ‌The User acknowledges that, at any time after the termination of this EULA, the Licensor may deactivate the Software by means of the Licence Key.

15.        General

15.1        No breach of any provision of this EULA shall be waived except with the express written consent of the party not in breach.

15.2        If any provision of this EULA is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this EULA will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).

15.3        This EULA may not be varied except by a written document signed by or on behalf of each of the parties.

15.4        The User hereby agrees that the Licensor may assign the Licensor's contractual rights and/or obligations under this EULA to any third party. The User must not without the prior written consent of the Licensor assign, transfer or otherwise deal with any of the User's contractual rights or obligations under this EULA.

15.5        This EULA is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this EULA are not subject to the consent of any third party.

15.6        Subject to Clause 12.1, this EULA shall constitute the entire agreement between the parties in relation to the subject matter of this EULA, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

15.7        This EULA shall be governed by and construed in accordance with English law.

15.8        The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this EULA.

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The Guild Hub, High Street
Bath BA1 5EB