Cast EULA

Cast Software Licence Terms and Conditions of Use

BY USING THE CAST SOFTWARE YOU ARE CONFIRMING THAT YOU ACCEPT THESE TERMS AND CONDITIONS OF USE AND YOU AGREE TO COMPLY WITH THEM. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS OF USE YOU MUST NOT USE THE CAST SOFTWARE.

1. Background

Cortex Tech Limited (15817221), a company registered in England and Wales of Mimet House, 5a Praed Street, London, W2 1NJ (“Cortex”, “We”) owns and operates the LED graphics rendering software, known as Cast that it has developed for the purpose of supplying stadium owners (the “Cast Software”) and has agreed to grant the customer identified in the relevant sales agreement (“Customer”, “You/Your”) a limited, non-exclusive, non-sublicensable, revocable, non-transferable licence to access and use the Cast Software for the Term (as defined in clause 11(a)) in accordance with and as permitted by these terms and conditions of use (the “Licence”).
The sales agreement between the Customer and Cortex (the “Sales Agreement”), and these Licence terms and conditions of use represent a legal agreement between the Customer and Cortex (the “Agreement”).
Other than in the case of Substantial Changes (as defined below), Cortex may modify the Agreement from time to time by notifying the Customer of any changes. By continuing to use the Cast Software after Cortex notifies the Customer of any such changes, the Customer accepts the Agreement as modified. If Cortex reasonably determines that any proposed changes to the Agreement would result in Cortex performing its obligations in a way that was substantially different to what the Customer might reasonably expect (“Substantial Changes”), Cortex will request the Customer’s written approval to the Substantial Changes (such approval not to be unreasonably withheld or delayed). If the Customer does not approve the Substantial Changes within 30 days after receiving notice from Cortex, Cortex may (at its discretion) either: (i) terminate the Agreement (or the relevant Sales Agreements) on 30 days written notice to the Customer; or (ii) permit the Customer to continue to operate under the previous version of the Agreement.
We may need to change the Agreement to reflect changes in law or best practice, to deal with additional features which we introduce, or other business changes to the Cast Software. We will give you at least 30 days’ notice of any change.
If you do not accept the notified changes you will not be permitted to continue to use the Cast Software.

2. Installation and Technical Requirements

Upon acceptance of the Agreement and payment of the Licence Fee:
1. Cortex shall deliver to You a licence key for use with the Cast Software; and
2. You may download the Cast Software for Your internal business purposes only on one central processing unit for use at one venue (as set out in the Sales Agreement) in conjunction with the licence key.
The minimum technical requirements for the use of the Cast Software are set out in the “Cortex Cast User Guide” as may be amended by Cortex from time to time (the “User Guide”). It is Your responsibility to ensure that You meet these minimum requirements and Cortex shall have no liability for Your inability to use the Cast Software arising from Your failure to meet the minimum requirements.

3. Cast Software Trial

If you are undertaking a free trial of the Cast Software (a “Trial”) no Licence Fee shall be due until you choose to upgrade to the full version of the Cast Software and Cortex delivers the licence key to You.
You acknowledge that you shall not have full access to the Cast Software until such time as you upgrade to the full version of the Cast Software and pay the Licence Fee. In all other respects You shall be bound by the terms of the Agreement.
Cortex may terminate your Licence to use the Trial of the Cast Software at any time on no notice.

4. Documentation

The “Documentation” (ie. all operator and user manuals, the User Guide, training materials, guides, specifications and other materials created or owned by Cortex and provided to You for use of the Cast Software) is licensed to You for the Term (as defined in clause 11(a)).
You may use the Documentation to support Your permitted use of the Cast Software and make such copies as are reasonably necessary for such use provided that You do not disclose the Documentation to any third party.
You acknowledge that the Documentation contains sufficient information for the adequate use of the Cast Software, except to the extent Cortex has notified You of any omission or deficiency or of any variation which it considers necessary for the proper use of the Cast Software.
You shall not copy or reproduce the Documentation except to the extent otherwise authorised by the Agreement.

5. Cast Software Licence Conditions

You may only use the Cast Software in accordance with the Agreement, the Documentation and the normal operating procedures as notified by Cortex.
Except as expressly set out in the Agreement, You shall not:
1. copy the Cast Software or the Documentation;
2. rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Cast Software or Documentation;
3. make alterations to, or modifications of, the whole or any part of the Cast Software, nor permit the Cast Software or any part of it to be combined with, or become incorporated in, any other programs; or
4. disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Cast Software nor attempt to do any such thing.
You will use all reasonable efforts to safeguard the Cast Software from misuse, unauthorised use, loss or damage, and will provide an operating environment for the Cast Software including computer hardware and software which conforms to published specifications and requirements of Cortex.
You will indemnify Cortex from any loss or damage to the Cast Software or any part of the Cast Software arising while the Cast Software is in Your possession or control other than loss or damage caused by Cortex or its employees.
You agree that your use of the Cast Software will be reasonable and shall not constitute Excessive Use. Cortex reserves the right to take action against you if we become aware that you are engaging in Excessive Use. We will determine based on reasonable information available, what constitutes Excessive Use, and you agree that our determination is final and binding. If we reasonably believe that you have been engaging in Excessive Use, we may:
1. work with you to reduce your usage. If you are unable or unwilling to abide by our suggested reduction in your usage within 30 days of notice, we may invoice you additional fees to accommodate the over usage. Such invoice shall be payable within 30 days following receipt by the Customer;
2. contact you and require that you cease or alter your behaviour / actions which have resulted in Excessive Use immediately; and/or
3. immediately suspend, modify, restrict, block access to or limit your use of the Cast Software, and notify you in writing that we have done so.
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  “Excessive Use” means use of the Cast Software (including any related customer support services) that is not reasonable and significantly exceeds normal usage patterns, including without limitation use: (a) which significantly affects Cortex’s personnel resourcing in respect of the provision of customer support services; (b) of Cast Software features for purposes other than their intended and agreed use purposes, including to attain additional features; and/or (c) in a manner that attempts to circumvent or contravene the licence granted to the Customer.

6. Intellectual Property

You acknowledge that all intellectual property rights in the Cast Software and the Documentation belong to Cortex and that rights in the Cast Software are licensed (not sold) to You. There is no transfer of title or ownership to You of the Cast Software or of any intellectual property rights relating thereto or the Documentation or any modifications to the Cast Software or Releases (as defined in clause 8(a) below).
The Cast Software as modified or altered remains the property of Cortex in all respects, whether modified by You, Cortex or a third party and whether or not authorised pursuant to the Agreement. Specifically, You shall if necessary assign Cortex all intellectual property rights arising out of any modifications to the Cast Software. You shall execute such documents and perform such other acts as are necessary in order to give effect to this subclause (b).
Any data you upload to the Cast Software (“Your Data”) remains Your property in all respects, whether modified by Cortex, You or a third party and whether or not authorised pursuant to the Agreement. You warrant that Your Data (and its use by Cortex in accordance with the Agreement) does not and will not infringe the rights (including intellectual property rights) of any third party. You herby indemnify and hold Cortex harmless against any losses, liabilities, damages, costs, expenses or other claims arising from or in connection with any breach of this sub-clause (c).
Cortex may use Your Data and any underlying usage or other data collected by the Cast Software for its own internal business purposes, including analytics and improvements to the Cast Software. You hereby grant to Cortex a worldwide, royalty-free, fully paid-up, irrevocable, perpetual, non-exclusive licence to copy, reproduce, adapt, edit and otherwise use Your Data to the extent reasonably required for the provision and development of the Cast Software, any related support services provided to You, and the analytics purposes set out in this sub-clause (d).

7. Consideration

In consideration for the Licence of the Cast Software, You will pay Cortex the licence fee and other services fees set out in the Sales Agreement plus any relevant taxes (the “Licence Fee”) in accordance with the payment terms set out in the Sales Agreement.
If you are undertaking a Trial of the Cast Software no Licence Fee shall be due until you choose to upgrade to the full version of the Cast Software and Cortex delivers the Licence Key to you.
We may also terminate your use of the Cast Software at any time without cause with immediate effect by sending you written notice, in the event that:
1. we are withdrawing the Cast Software entirely; and/or
2. we need to materially change the structure of the Licence Fees in respect of the Cast Software, unless you agree to such change in Licence Fees within seven (7) days of our notice.
  
  If we exercise either of these rights, we will refund you any prepaid Licence Fees in respect of the Cast Software after the effective date of termination. If we send you a notice to terminate pursuant to this clause 7(c), the Agreement shall terminate at the same time as your usage of the Cast Software is terminated.
If your use of the Cast Software exceeds the feature limits for the relevant licence tier as set out in the Sales Agreement, Cortex shall have the right to immediately increase the Licence Fee paid or payable by the Customer by an amount that will be pro-rated against the remaining period of the Term and which is relevant to the higher licence tier (e.g. from Essential to Professional or Ultimate, or from Professional to Ultimate) in respect of the feature limits. Such pro-rated increase to the Licence Fee shall be invoiced by Cortex to the Customer and be payable within 30 days following receipt by the Customer. We will review your usage levels, at minimum, each month and we may, at our absolute discretion, move you to a lower tier, as appropriate.
Cortex may increase the Licence Fees payable with effect from the first anniversary of the Initial Term and each anniversary thereafter during the Initial Term in accordance with the percentage increase in the Consumer Prices Index in the preceding twelve (12)-month period. If the parties wish to renew the Initial Term in accordance with clause 11(a), then with effect from the start of each Renewal Period, Cortex may increase the Licence Fees payable in accordance with its most recent list pricing for the Cast Software. Cortex shall notify the Customer of any such increase to the Licence Fees at least 120 days prior to the end of the Initial Term or the then-current Renewal Period.

8. Compulsory Updates, New Releases, Security and Privacy

You shall comply with a direction from Cortex to reinstall the Cast Software in substitution for an update or new release (a “Release”) which provides functions equal to or better than the original Cast Software.
Where a Release is provided pursuant to subclause (a):
1. such a Release will usually be provided free of charge but Cortex reserves the right to charge a reasonable additional fee in relation to such Release;
2. the Agreement will continue to apply in all respects to the Release which shall be deemed to be the Cast Software for the purpose of the Agreement; and
3. You shall return to Cortex all copies of the original Cast Software (if any) or otherwise deal with any copies of the Cast Software in accordance with Cortex's directions.
Without limiting Your obligations under this clause, and notwithstanding any other provision of the Agreement, Cortex shall be under no liability to You in the event of loss or damage suffered by You as a result of Your failure to comply with sub-clauses (a) or (b), including any failure to install a Release, and You shall indemnify Cortex in respect of any loss or damage suffered by Cortex as a result of Your failure to comply with this sub-clauses (a) and (b).
You shall be responsible for your use, supervision, management and control of the Cast Software and Documentation and you shall ensure that the Cast Software is protected at all times from misuse, damage, destruction or any form of unauthorised use.
You shall keep accurate records of your use, copying, modification and disclosure of the Cast Software and shall permit Cortex to inspect such records at any time. If Cortex requests, You shall promptly provide Cortex a copy of all or any part of such records.
Cortex does not guarantee that the Cast Software will be uninterrupted, secure or free from bugs or viruses. You are responsible for configuring your information technology, computer programmes and platform to access the Cast Software and You should use your own virus protection software. You are solely responsible for securing and backing up your content.
You must not misuse the Cast Software by knowingly or recklessly introducing viruses, trojans, worms, logic bombs or other material that is malicious or technologically harmful. You must not attempt to gain unauthorised access to the Cast Software.
You acknowledge and agree that any of Your Data that you upload to the Cast Software will not include personal data and it is not intended that Cortex process any personal data on your behalf. Any personal data Cortex collects through Your use of the Cast Software (excluding Your Data) will only be processed in accordance with any privacy notice that Cortex provides to You from time to time and the Cortex privacy policy (as may be amended from time to time).

9. Confidentiality

A party shall not, without the prior written consent of the other party, disclose the other party's Confidential Information to a third party. “Confidential Information” means the confidential information of a party which relates to the subject matter of the Agreement and includes information relating to:
1. the design, specification and content of the Cast Software;
2. the personnel, policies or business strategies of Cortex; and/or
3. the terms upon which the Cast Software is being supplied and installed pursuant to the Agreement.
A party shall not be in breach of subclause (a) in circumstances where it is legally compelled to disclose the other party’s Confidential Information.
Each party shall take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of the Agreement, do not make public or disclose the other party’s Confidential Information.
Notwithstanding any other provision of this clause, each party may disclose the terms of the Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants provided they are subject to similar obligations of confidentiality.
This clause shall survive termination of the Agreement.

10. Liability of the parties

You acknowledge that the Cast Software 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 Cast Software as described in the Documentation meet Your requirements.
Subject to subclause (c) below, Cortex’s maximum aggregate liability to You under or in connection with the Agreement shall not exceed a sum equal to the Licence Fee paid by You in the 12 months preceding the event which gave rise to the first such liability.
Nothing in the Agreement excludes or limits either party’s liability where it would be unlawful to do so. This includes liability for death or personal injury caused by a party’s negligence or the negligence of a party’s employees, agents or subcontractors and for fraud or fraudulent misrepresentation.
To the fullest extent permitted by law, Cortex excludes all implied conditions, warranties, representations or other terms that may apply to the Agreement, the Cast Software and Your use of the Cast Software, whether by statute, common law or otherwise, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
Subject to subclause (c) above, Cortex shall not be liable to you for any loss or damage, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, even if foreseeable, arising under or in connection with Your:
1. use of, or inability to use, the Cast Software; or
2. use of or reliance on any content displayed on the Cast Software.
Subject to subclause (c) above, Cortex shall not be liable to You under the Agreement for any:
1. loss of contracts, profits, sales, business, or revenue;
2. loss or corruption of data;
3. business interruption;
4. loss of anticipated savings;
5. loss of business opportunity, goodwill or reputation; or
6. any indirect or consequential loss or damage.
You shall at all times indemnify and hold harmless Cortex and its officers, employees and agents ("those indemnified") from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by:
1. a breach by You of Your obligations under the Agreement; or
2. any wilful, unlawful or negligent act or omission by You.
In addition to any other remedies available to Cortex under the Agreement or otherwise, any unauthorised use, alteration, reproduction, publication, disclosure or transfer of the Cast Software will entitle Cortex to seek any available equitable remedy against You.

11. Term and Termination

The Agreement will commence on the Commencement Date and continue for the Initial Term as set out in the Sales Agreement, unless otherwise terminated in accordance with the Agreement. The Agreement shall then automatically renew immediately following the expiration of the Initial Term for successive periods of 12 months (each a “Renewal Period”) unless Cortex or the Customer provides written notice to the other party at least ninety (90) days’ prior to the expiry of the Initial Term or the then-current Renewal Period to indicate that it wishes to terminate the Agreement and such notice shall take effect at the end of the Initial Term or the then-current Renewal Period.
Without limiting the generality of any other clause in the Agreement, either party may terminate the Agreement by notice in writing if:
1. the other party is in material breach of the Agreement and such breach is either irremediable or, if it is remediable, is not remedied within fourteen (14) days of notification by the other party;
2. the other party undergoes an Insolvency Event. An “Insolvency Event” occurs when a party: (a) ceases, or threatens to cease, to carry on the whole or a substantial part of its business; (b) becomes unable to pay its debts as and when they fall due, makes an arrangement or composition with its creditors or goes into liquidation; (c) is the subject of the commencement of any insolvency proceedings, the passing of a resolution for its winding up, the giving of a notice of appointment or intention to appoint an administrator or liquidator (which is not dismissed, withdrawn or set aside within 14 days after presentation); (d) has an administrator, an administrative receiver or trustee appointed over all or any of its assets; or (e) where you are an individual, you are the subject of a bankruptcy petition, application or order.
Cortex may terminate the Agreement on 30 days’ written notice at any time, provided that such notice shall not expire earlier than one year after the Commencement Date.
Upon termination or expiry of the Agreement:
1. You shall cease to use the Cast Software and Cortex may repossess any copies of the Cast Software; and
2. You shall immediately pay to Cortex any outstanding unpaid Licence Fees and, in respect of period during which the Cast Software has been supplied but for which no invoice has been submitted, Cortex may submit an invoice, which shall be payable by You immediately on receipt.
Any provision of the Agreement either expressed or implied to survive termination or expiry of the Agreement shall survive such expiry or termination of the Agreement howsoever occurring.

12. Force Majeure

Neither party shall be liable for any delay or failure to perform its obligations pursuant to the Agreement if such delay is due to Force Majeure. “Force Majeure” means a circumstance beyond the reasonable control of the parties which results in a party being unable to observe or perform on time an obligation under the Agreement, but expressly excludes any payment obligation. Such circumstances shall include but shall not be limited to:
1. acts of Gods, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster;
2. acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; and
3. strikes.
If a delay or failure of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party's obligations will be suspended.

13. Entire Agreement

The Agreement constitutes the entire agreement between the parties and supersedes all prior representations, terms, statements and undertakings, whether verbal or in writing.
Each party acknowledges that it has not entered into the Agreement in reliance on any statement or representation of the other party, except to the extent that such statement or representation has been incorporated in the Agreement.

14. Assignment

The Agreement may not be assigned by either party without the other party’s written consent.

15. Waiver

No right under the Agreement shall be deemed to be waived except by notice in writing signed by each party.
A waiver made by either party pursuant to subclause (a) will not prejudice its rights in respect of any subsequent breach of the Agreement by the other party.
Subject to subclause (a), any failure by either party to enforce any clause of the Agreement, or any forbearance, delay or indulgence granted by the other party to such party, will not be construed as a waiver of the other party’s rights under the Agreement.

16. Survival of Terms

Subject to any provision to the contrary, the Agreement shall enure to the benefit of and be binding upon the parties and their successors, trustees, permitted assigns or receivers but shall not enure to the benefit of any other persons.
The covenants, conditions and provisions of the Agreement which are capable of having effect after the expiration of the Agreement shall remain in full force and effect following the expiration of the Agreement.

17. Severability

If any provision of the Agreement is held invalid, unenforceable or illegal for any reason, the Agreement shall remain otherwise in full force apart from such provisions which shall be deemed deleted.

18. Governing Law and Jurisdiction

The Agreement will be governed by and construed according to the laws of England and the courts of England and Wales shall have exclusive jurisdiction over any dispute or claim arising out of or in connection with the Agreement.

19. Notices

Notices under the Agreement may be delivered by hand, by mail or by facsimile to either party at such address as is notified to the other party from time to time.
Notice will be deemed given:
1. in the case of hand delivery, upon written acknowledgment of receipt by an officer or other duly authorised employee, agent or representative of the receiving party;
2. in the case of posting, three days after despatch; or
3. in the case of facsimile, upon receipt of transmission if received on a business day or otherwise at the commencement of the first business day following transmission.