Software Terms of Use

Version 1, effective as of 1 June 2024

THIS IS A LEGAL AGREEMENT. BY SELECTING THE “I HAVE READ AND ACCEPT THE TERMS OF SERVICE” CHECKBOX (OR A SIMILAR WAY TO INDICATE YOUR CONSENT) THAT IS PRESENTED TO YOU AT THE TIME OF YOUR FIRST OR SUBSEQUENT USE OF THE DIVVERSION SOFTWARE, RELATED TOOLS, SUPPORT, OR PRODUCTS, OR WHEN YOU START USING THE SOFTWARE, RELATED TOOLS, SUPPORT, OR PRODUCTS IN ANY WAY, YOU BECOME A PARTY TO THIS AGREEMENT, YOU DECLARE YOU HAVE THE LEGAL CAPACITY TO ENTER INTO SUCH AGREEMENT, AND YOU CONSENT TO BE BOUND BY ALL THE TERMS AND CONDITIONS SET FORTH BELOW.

1. Parties

1.1. “Divversion” or “we” means Divversion Ltd, registered in England and Wales under company number 15621126 with registered office at 71-75 Shelton Street, London, WC2H 9JQ, UK (we, us, our).

1.2. “Product Holder” means the sole proprietor or legal entity specified in the Subscription Confirmation. For legal entities, “Product Holder” includes any entity which controls, is controlled by, or is under common control with Product Holder. For the purposes of this definition, “control” means (i) the power, directly or indirectly, to direct or manage such entity, whether by contract or otherwise, or (ii) ownership of fifty percent (50%) or more of the outstanding shares or beneficial ownership of such entity.

1.3. “User” or “you” means the individual given the right to use a Product in accordance with these Terms. For the avoidance of doubt, User is a natural person and not a corporation, company, partnership or association, or other entity or organization.

2. Definitions

2.1. “Terms” means these Divversion Software Terms of Service covering use of the Product by individual Users.

2.2. “Account” means an account at https://www.divversion.com or in the Product created by User enabling User to manage Subscription administration and/or access Product features.

2.3. “Divversion Website” means any website that is the property of Divversion Ltd, including but not limited to everything hosted under the top-level domains divversion.com, divversion.io and divversion.co.uk.

2.4. “Machine” means a computing device used by a User for running the Product.

2.5. “Personal Data” means any information relating to an identified or identifiable natural person.

2.6. “Privacy Policy” means the Divversion Privacy Policy available at https://www.divversion.com/legal/privacy, which may be updated from time to time.

2.7. “Product” means any generally available Divversion software intended for mass distribution and available on the Divversion Website, including administrative tools and other related software products. Divversion does not develop Products according to Customer’s specifications, nor are Products customized through modification or personalization.

2.8. “Subscription” specifies the subscription term, Products provided to Customer, subscription fees, and payment schedules.

2.9 “Subscription Level” means the functionality of subscription provided to Customer, including the right to use certain features and applicable use limitations. All chargeable Subscription Levels, such as “Premium” and “Pro” Subscription Levels, are deemed to be above the “Free” Subscription Level, which is provided free of charge.

2.10. “Subscription Confirmation” means an email confirming Product Holder’s rights to access and use Products, including Subscription plans, and stating the applicable use limitations for the Product (such as, for example, the number of Users and the license period).

2.11. “Subscription Term” is the time period for which Product Holder has the right to use the features of Product reserved for the subscribed Subscription Level.

2.12 “Subscription Charge” means the total of fees, payments, discounts required to be paid to activate a Subscription Level for a specific Subscription Term.

3. Grant of Rights

3.1. The Product is provided to Product Holder on a ‘per user’ basis, where Product Holder must assign a Subscription to a specific User who may deploy the Product on multiple Machines in accordance with the Product documentation. If Product Holder and User comply with these Terms, Divversion grants to Product Holder and User the rights set out in this Section 3 to the extent necessary to enable Product Holder and User to effectively use the Product. All other rights remain reserved by Divversion.

3.2. A Divversion account is required to use Product and a Subscription is linked to a specific Account, representing a specific User.

3.3. Unless the Subscription has expired or these Terms is terminated in accordance with Section 13, and subject to the terms and conditions specified in these Terms, Divversion grants you the non-exclusive and non-transferable right to use each Product covered by the Subscription as stipulated below:

a) you may install and use any version of the Product covered by the Subscription on any operating system supported by the Product.

b) you may not:

(i) allow the same Subscription to be used concurrently by more than one (1) User;

(ii) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, or transfer the Product;

(iii) provide a third party with access to the Product or your Account, or the right to use the Product;

(iv) reverse-engineer, decompile, disassemble, modify, translate, or make any attempt to discover the source code of, the Product; or

(v) remove or obscure any proprietary or other notices contained in the Product.

3.4. Section 3.3 also applies to Products not covered by the Subscription, with the exception of 3.3 b)(i); provided, that for Products governed by their own specific agreements or terms of use, those shall take precedence over these Terms to the extent of any conflict or discrepancy.

3.5. Divversion has and retains all rights, title, and interest, including all intellectual property rights, in and to the Products, any and all related or underlying technology, and any modifications or derivative works of the Products, including without limitation as they may incorporate Feedback (as defined below).

4. Billing, plan modifications and payments

4.1. Unless otherwise indicated in an order referencing these Terms and subject to Clause 9.2, all charges associated with your access to and use of the Product (“Subscription Charges”) are due in full upon commencement of your Subscription Term. If you fail to pay your Subscription Charges or charges for other services indicated in any order within five (5) business days of our notice to you that payment is due or delinquent, or if you do not update payment information upon our request, in addition to our other remedies, we may suspend or terminate access to and use of the Product.

4.2. If you choose to upgrade your Subscription Level or increase the number of authorized Users during your Subscription Term (a “Subscription Upgrade”), any incremental Subscription Charges associated with such Subscription Upgrade will be prorated over the remaining period of your then-current Subscription Term, charged to your Account and due and payable upon implementation of such Subscription Upgrade. In any future Subscription Term, your Subscription Charges will reflect any such Subscription Upgrades.

4.3. No refunds or credits for Subscription Charges or other fees or payments will be provided to you if you elect to downgrade your Subscription Level. Downgrading your Subscription Level may cause loss of content, features, or capacity of the Product as available to you under your Account, and Divversion does not accept any liability for such loss. Divversion reserves the right to contact you about special pricing if you maintain an exceptionally high excessive stress on the Product.

4.4. Unless otherwise stated, our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes except those assessable against Divversion based on its income. We will invoice you for such Taxes if we believe we have a legal obligation to do so and you agree to pay such Taxes if so invoiced.

4.5. If you pay by credit card, the Product provides an interface for the account owner to change credit card information (e.g. upon card renewal). The Account owner will receive a receipt upon each receipt of payment by Divversion, or they may obtain a receipt from within the Product to track subscription status. You hereby authorize Divversion to bill your credit card or another payment instrument in advance on a periodic basis in accordance with the terms of the Subscription Level until you terminate your Subscription, and you further agree to pay any Subscription Charges so incurred. Divversion uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use your billing information except to process your credit card information for Divversion.

5. Access to Products

5.1. All deliveries under these Terms will be electronic. Product Holder and User must have an Internet connection in order to access the Products and their Account. Product Holder and User are responsible for downloading and installing the Products, which are made available for download on the Divversion Website.

5.2. Product Holder and User are jointly responsible for the accuracy of any information provided via, and any action taken through, the Account.

5.3. Product Holder will enable User’s right to use features of Product restricted to the selected and paid for Subscription Level by storing User’s subscription status in User’s Account. Product Holder and User acknowledge and agree that the Product will periodically connect from the User’s Machine to Divversion’ servers via the internet to confirm the User’s right to use the Product.

6. Entire Terms

6.1. The following documents are part of (‘incorporated into’) these Terms: the Divversion Website Terms of Use available at https://www.divversion.com/legal/webterms and the the Divversion Privacy Policy, available at https://www.divversion.com/legal/privacy. Together, these documents form the entire agreement and replace any previous agreement between you and us in relation to its subject matter.

6.2 Except as expressly mentioned, these Terms do not apply or give rights to anyone else (‘no third-party beneficiaries’). No purchase order, Product Holder terms, or other document that purports to modify or supplement these Terms will vary these Terms unless signed by User and Divversion.

7. Personal Data

7.1. In connection with your use of Product(s), we and our associated companies will process Personal Data of you as a User and the Product Holder (if appropriate), in particular, your contact and identification details, data about usage of our software and services, and information about your subscription and payments, for the following purposes:

a) To provide you with software, services or information;

b) To protect us from piracy and unlawful use of our software or services;

c) To improve our offerings based on usage;

d) For our internal records and to protect our rights and interests and those of other users;

e) To promote and market our software and services; and

f) To fulfil legal duties stipulated by accounting, taxation, and other laws.

More detailed information about Personal Data processing for the above mentioned purposes and about your rights can be found in the Privacy Policy.

7.2. For the above purposes, Divversion may collect, among other things, your IP address, Account username, Account password, first name, last name, email address, and subscription information.

7.3. On installation and execution, the Product may send Divversion certain information, including Product version, Product edition, and information about the operating system and/or environment where the Product is installed. A unique ID, which does not contain any Personal Data, is also used to distinguish Machines. The Product can also check for available updates, as well as available updates for plugins or components. In addition, it can check for Subscription validation. Some Products can also use Subscription information to inform you of the availability of applicable updates.

7.4. If you opt in to anonymous data collection through the Product, the Product may electronically send anonymous information to Divversion related to your usage of the Product features.

7.5. Divversion is not responsible for any processing of Personal Data accidentally sent to Divversion by the User.

7.6. You shall keep your Personal Data up-to-date, update the information, or if any inconsistencies arise report such inconsistencies to Divversion.

8. Feedback

You have no obligation to provide us with ideas, suggestions, or proposals (“Feedback”). However, if you submit Feedback to us, then you grant us a non-exclusive, worldwide, royalty-free license that is sub-licensable and transferable, to make, use, sell, have made, offer to sell, import, reproduce, publicly display, distribute, modify, or publicly perform the Feedback in any manner without any obligation, royalty, or restriction based on intellectual property rights or otherwise.

9. Third-Party Software

The Products include code and libraries licensed to us by third parties, including open source software (“Third-Party Software”). A list of Third-Party Software included in each Product is available in the respective Product documentation. All Third-Party Software is provided to Product Holder and User under the respective terms stipulated in the Product documentation.

10. Free Subscription Level and Trial

10.1. Subject to these Terms, User is granted the Free Subscription Level to use the Product for an indefinite period without charge. User’s use of the Product while in the Free Subscription Level is restricted to the features available in the Free Subscription Level.

10.2. Subject to these Terms, User is granted a one-time right to evaluate the Subscription Levels above the Free Subscription Level for evaluation purposes, without charge, for a period of fourteen (14) days (or such other period as may be specified in the official Product documentation) from the date of requesting such evaluation through the Product (“Evaluation Period”). User’s use of the Product at a Subscription Level above the Free Subscription Level during the Evaluation Period shall be limited to internal evaluation and testing of the Product for the sole purpose of determining whether the Product meets User’s requirements and whether User wishes to continue using the Product.

10.3. User may end the Evaluation Period at User’s sole discretion any time. Upon the expiration of the Evaluation Period, User’s right to continue using the Product at a Subscription Level above the Free Subscription Level will terminate, unless User purchases a Subscription to a Subscription Level above the Free Subscription Level. Each Product contains a feature that will automatically disable the functionality reserved to higher Subscription Levels upon the expiration of the Evaluation Period.

11. Warranty Limitations

11.1. ALL PRODUCTS ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE PRODUCTS IS AT YOUR OWN RISK.

11.2. DIVVERSION MAKES NO WARRANTY AS TO THE PRODUCTS’ USE OR PERFORMANCE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DIVVERSION (AND ITS AFFILIATES, SHAREHOLDERS, AGENTS, DIRECTORS, AND EMPLOYEES), ITS LICENSORS, SUPPLIERS (INCLUDING THE PROVIDERS OF THIRD PARTY SOFTWARE), AND RESELLERS (COLLECTIVELY HEREUNDER, “DIVVERSION PARTIES”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED (INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT) WITH REGARD TO THE PRODUCTS AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES.

11.3. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DIVVERSION PARTIES DO NOT REPRESENT OR WARRANT THAT THE PRODUCTS: (A) ARE ACCURATE, RELIABLE, OR CORRECT; (B) WILL MEET YOUR REQUIREMENTS; (C) WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, OR SECURE; (D) ARE FREE OF DEFECTS OR ERRORS AND THAT ANY, IF FOUND, WILL BE CORRECTED; AND/OR (E) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

11.4. ANY CONTENT OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PRODUCTS ARE DOWNLOADED AT YOUR OWN RISK; YOU AGREE YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY AND/OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.

11.5. OUR TOTAL LIABILITY IN ANY MATTER ARISING OUT OF OR IN RELATION TO THESE TERMS IS LIMITED TO FIVE (5) BRITISH POUNDS STERLING. THIS LIMITATION WILL APPLY EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF LIABILITY EXCEEDING SUCH AMOUNT AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

11.6. YOU MAY HAVE OTHER RIGHTS, WHICH MAY NOT BE LIMITED OR EXCLUDED AND WHICH MAY VARY FROM JURISDICTION TO JURISDICTION. THIS DOCUMENT IS NOT INTENDED TO NEGATIVELY AFFECT SUCH RIGHTS.

12. Disclaimer of Damages

12.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL DIVVERSION PARTIES BE LIABLE TO YOU, YOUR AFFILIATES, USERS, OR ANYONE ELSE FOR: (A) ANY LOSS OF USE, DATA, GOODWILL, OR PROFITS, WHETHER OR NOT FORESEEABLE; (B) ANY LOSS OR DAMAGES IN CONNECTION WITH TERMINATION OR SUSPENSION OF YOUR ACCESS TO THE PRODUCTS IN ACCORDANCE WITH THIS AGREEMENT; OR (C) ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHATSOEVER (EVEN IF THE RELEVANT DIVVERSION PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), INCLUDING THOSE (X) RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT THEY ARE FORESEEABLE, (Y) BASED ON ANY THEORY OF LIABILITY, INCLUDING BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY, NEGLIGENCE, OR OTHER TORTIOUS ACTION, OR (Z) ARISING FROM ANY OTHER CLAIM ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR ACCESS TO THE PRODUCTS OR SUPPORT. THIS LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

12.2. THE TOTAL LIABILITY OF THE DIVVERSION PARTIES IN ANY MATTER ARISING OUT OF OR IN RELATION TO THIS AGREEMENT IS LIMITED TO THE GREATER OF (A) FIVE (5) BRITISH POUND STERLING OR (B) THE AGGREGATE AMOUNT PAID OR PAYABLE BY PRODUCT HOLDER OR USER DURING THE THREE-MONTH PERIOD PRECEDING THE EVENT, FOR THE PRODUCTS GIVING RISE TO THE LIABILITY. THIS LIMITATION WILL APPLY EVEN IF THE DIVVERSION PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF LIABILITY EXCEEDING SUCH AN AMOUNT AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

13. Term and Termination

13.1. The validity of these Terms will commence upon acceptance of these Terms by User as set forth in the preamble above, and it will continue for each Product covered by a Subscription through the end of the applicable Subscription period specified in the respective Subscription Confirmation, or until terminated for Products not covered by a Subscription (unless specified otherwise by specific terms governing the use of such Product).

13.2. You may terminate these Terms at any time by deleting your Account through the Product. If such termination occurs during a Subscription period above the Free Subscription Level, these Terms will continue to be effective until the end of that Subscription period.

13.3. Divversion may terminate these Terms and the associated Subscription if:

a) User has materially breached these Terms and fails to remedy the breach within thirty (30) days of written notice;

b) Divversion is required to do so by law (for example, where the provision of the Product to User is, or becomes, unlawful); or

c) Divversion elects to discontinue providing the Product, in whole or in part.

13.4. Divversion will make reasonable efforts to notify User via email (to the email address of the billing or technical contact provided by User or Product Holder) as follows:

a) Thirty (30) days prior to termination of the Terms in the event specified in Section 13.3 c);

b) Three (3) days prior to termination of the Terms in the event specified in Section 13.3 b).

13.5. Survival. Upon the expiration or termination of these Terms, Sections 6, 8, 9, 11, 12, and 16 of these Terms survive.

14. Temporary Suspension

14.1. Divversion reserves the right to suspend User’s access to Divversion Products if:

a) Product Holder fails to pay Subscription fees on time;

b) Product Holder’s or User’s use of Product is in violation of these Terms or disrupts or imminently threatens the security, integrity, or availability of a Product.

14.2. If Divversion suspends User’s access to Products for non-payment in accordance with Section 14.1 a), Product Holder must pay all past due amounts in order to resume access to Product.

15. Export Regulations

15.1. User must comply with all applicable laws and regulations with regard to economic sanctions, export controls, import regulations, restrictive measures, and trade embargoes (all herein referred to as “Sanctions”), including those of the European Union, the United Kingdom and United States. User declares and warrants that it is not a person targeted by Sanctions, nor is it otherwise owned or controlled by or acting on behalf of any entity or person targeted by Sanctions. User agrees that it will not download or otherwise export or re-export the Product or any related technical data directly or indirectly to any person targeted by Sanctions or download or otherwise use the Product for any end-use prohibited or restricted by Sanctions.

15.2. User must immediately report any concerns of non-compliance regarding Sanctions to legal@divversion.com and cooperate with Divversion in its efforts to verify and ensure compliance with Sanctions.

16. General

16.1. Reservation of Rights. Divversion reserves the right at any time to cease its support of the Product and to alter prices, features, specifications, capabilities, functions, terms of use, release dates, general availability, and other characteristics of the Product. Nothing in these Terms limits any rights a consumer may have under applicable consumer protection laws.

16.2. Changes to these Terms. The Terms can be updated from time to time to reflect changes in the Product and how it is offered to you.

a) If this happens, we will update the terms on the Divversion Website and let you know either:

(i) by displaying them to you in the Product;

(ii) in your Account; or

(iii) by sending the updated version to the email address used in your Account.

b) Any updated Terms will start (‘be effective’) on the date specified in the updated Terms. By continuing to use the Product after the effective date, you agree to be bound by the modified Terms.

c) We respect that you may not agree to the updated Terms. If that is the case, you can terminate your Subscription any time up to 30 days after the effective date of the updated Terms. Termination according to this Section entitles you to a pro-rata refund of the pre-paid unused Subscription fees. Termination according to this provision can only be requested by e-mailing legal@divversion.com.

16.3. Opportunity to Review. Customer declares that it has had sufficient opportunity to review these Terms, understand the content of all of its sections, negotiate its terms, and seek independent professional legal advice before entering into it. Consequently, any statutory “form contract” (“adhesion contract”) regulations shall not be applicable to these Terms.

16.4. Severability. If a particular term of these Terms is not enforceable, the unenforceability of that term will not affect any other terms of these Terms.

16.5. Interpretation. Headings and titles are for convenience only and do not affect the interpretation of these Terms. Terms such as “including” are not exhaustive.

16.6. No Waiver. our failure to enforce or exercise any part of these Terms is not a waiver of that section.

16.7. Notice. Divversion may deliver any notice to User via electronic mail to an email address provided by User, or via User’s Account, registered mail, personal delivery, or reputable express courier. Any such notice will be deemed to be effective (i) on the day the notice is sent to User via email, (ii) upon being uploaded to User’s Account (irrespective of when User actually receives it), (iii) upon personal delivery, (iv) one (1) day after deposit with an express courier, or (v) five (5) days after deposit in the mail, whichever occurs first.

16.8. Governing Law. These Terms are governed by the law of England and Wales. All disputes will be subject to the exclusive jurisdiction of the courts of England and Wales.

16.9. Data Privacy. By accepting these Terms, User acknowledges that Divversion will process personal data in accordance with Divversion’ Privacy Policy (available at https://www.divversion.com/legal/privacy).

16.10. Children and minors. If you are under 18 years old, then by entering into these Terms you explicitly stipulate that (i) you have legal capacity to conclude these Terms or that you have valid consent from a parent or legal guardian to do so and (ii) you understand the Divversion Privacy Policy. You may not enter into these Terms if you are under 13 years old. IF YOU DO NOT UNDERSTAND THIS SECTION, DO NOT UNDERSTAND THE DIVVERSION PRIVACY POLICY, OR DO NOT KNOW WHETHER YOU HAVE THE LEGAL CAPACITY TO ACCEPT THESE TERMS, PLEASE ASK YOUR PARENT OR LEGAL GUARDIAN FOR HELP.

16.11. Force Majeure. Neither party to these Terms shall be in breach of these Terms, or otherwise liable to the other, by reason of any delay in performance, or non-performance, of any of its obligations under these Terms (except payment obligations), arising directly from an act of God, fire, flood, natural disaster, act of terrorism, strike, lock-out, labor dispute, public health emergency, civil commotion, riot, or act of war.