End User Licence Agreement
1.1 This document contains the terms and conditions on which We grant You the right to Access and use our Software on your Device. You must read this document from start to finish. Only if You agree with all its terms and conditions may You Access the Software. By using the Software you indicate that you agree with all the terms and conditions of this Agreement.
1.2 When You Access the Software on your Device an agreement is made between:
(a) Us; and
2. Accessing and Using our Software
2.1 We grant to You a non-exclusive, non-transferable, limited right to Access the Software during the Term for the purpose of performing, displaying and using the Software on Your Device.
2.2 We do not warrant or guarantee that:
(a) the Software will be uninterrupted or error free; nor
(b) any data, including Customer Data will be backed up and/or recoverable by Us.
2.3 We may change the features or benefits of any Software from time to time in Our discretion.
2.4 You acknowledge and agree that You:
(a) are solely responsible for the creation, posting, accuracy, updating and maintenance of any Customer Data;
(b) must manage, renew, create, delete, edit, maintain and otherwise control the editorial content of any Customer Data.
2.5 We are not responsible for any delays, delivery failures or any other loss or damage, including breach of Privacy Law, resulting from the transfer of data over communications networks or facilities, including the internet, and You acknowledge and agree that the Software may be subject to limitations, delays or other problems inherent in the use of such communications.
2.6 During the Term We may implement any new version of the Software (including adding new features or removing existing features) or other material that supports the Software in Our absolute discretion, and without liability or prior notice to You. We do not guarantee that any change, addition, deletion, error correction, patch, update or new version of the Software (or any part of it) will be compatible with Your Device, data, applications, Third Party Software, other software or interfaces that connect to or interface with the Software.
2.7 Any support for the Software will be provided in accordance with any Policies.
3.1 Nothing in this Agreement permits You to:
(a) copy, adapt, translate, publish, communicate to the public, or create any derivative work or translation of the Software or Software, unless expressly permitted by law or this Agreement;
(b) sub-license, lease, rent, loan, assign, novate or otherwise transfer any part of the Software in whole or in part to any third party;
(c) reverse engineer, reverse compile, de-compile or disassemble the object code of the Software or any part of the Software, or otherwise attempt to derive the source code of the Software, except to the extent the permitted by law;
(d) defeat or attempt to defeat any digital rights management system or licensing system employed by Us or the providers or proprietors of the Software Platform;
(e) remove, alter or obscure any of Our Marks, or any proprietary or restricted use notice on the Software;
(f) use the Software for the purpose of building a competitive product or copying its features or user interface;
(g) attempt to download or Access the object code or source code of the Software;
(h) use the Software to display, store, process or otherwise use any data (in any format, and whether readable by humans or by machines, and including data that is Customer Data) that, in Our opinion:
(i) infringes any person’s Intellectual Property Rights, right to privacy, right to keep confidential information confidential, right to publicity or induces any person to breach a contract;
(j) is unlawful (including breaching laws relating to the wrongful distribution of email or other electronic messages “spam”), discriminatory, derogatory, defamatory, slanderous, malicious, obscene, contains child pornography or is immoral;
(k) contains any virus, Trojan horse or other malicious code, or is used to gain unauthorised access to, does harm to, wrongfully intercepts, expropriates, accesses or uses for any wrongful purpose, any person’s hardware, software, network or data;
(l) wrongly identifies, or disguises, the sender or place of origin of any communication;
(m) contains links to any other website that contains information that is of a type described in this clause (h);
(n) deal in any other manner with any or all of Your rights and obligations under this Agreement.
4. Fees and Taxes
Payment for Software
4.1 When you download the software you must pay us the fees and related taxes by in the currency stated on the software platform in accordance with the payment process provided on the software platform.
4.2 We may change the Fees for any Software at any time by updating the Fees on the Software Platform.
5.1 Except where You are entitled to a statutory guarantee under clauses 54 to 59 or 60 to 62 of the Australian Consumer Law, any refunds for the Software you have downloaded will be made in accordance with Policies (if any).
6. Trade Marks
6.1 You acknowledge and agree that We are the owner and/or licensor of Our Marks and that all goodwill arising out of Your use of Our Marks under this Agreement shall inure to Us. You will not acquire any right to, or interest in, any of Our Marks. You must not at any time or in any way indicate Your ownership of, or any right in, Our Marks and You must not contest the right of Us or any of Our Affiliates to the use of any of Our Marks.
7. Proprietary Rights
7.1 As between You and Us, You own all Customer Data.
7.2 You grant Us, Our Affiliates and their respective contractors a worldwide, royalty-free, irrevocable right to use, copy, modify and otherwise deal with any Customer Data in so far as is necessary, convenient or desirable for Us to perform Our obligations, or exercise Our rights, under this Agreement or for Us to meet any obligation under the law.
7.3 All Intellectual Property Rights in the Software and any adaptations, translations and derivative works in the Software are and shall remain the exclusive property of Us (and Our licensors, if any) or shall vest in or be transferred to Us immediately upon creation, as the case may be.
7.4 Except for the rights expressly granted by Us to You under this Agreement:
(a) We and Our licensors, if any, reserve all right, title and interest in or to the Software and all Intellectual Property Rights in them;
(b) no right, title or ownership interest in or to the Software, whether by implication, estoppel or otherwise, is granted, assigned or transferred to You under or in connection with this Agreement.
7.5 You acknowledge and agree that the unauthorised disclosure, use, reproduction or copying of the Software, may cause Us serious financial loss that may not be adequately compensated by monetary damages. Accordingly, in the event of any unauthorised disclosure, use, reproduction or copying of the Software You agree that We shall have the right to seek injunctive relief to stop such unauthorised disclosure, use or copying.
7.6 If You provide Us with any feedback, comments or suggestions relating to the Our Software (Feedback), You grant Us an irrevocable, non-cancellable, worldwide, royalty-free, license to use, copy, adapt, translate, create derivative works from, sub-license or otherwise exploit in any way (including without hindrance, restriction or subject to any exercise of any person’s moral rights) that Feedback for any purpose, including to assist Us to develop or improve current products or Software, or to assist Us develop or improve future products and services.
8. Confidential Information
8.1 The Recipient must not use any of the Discloser’s Confidential Information except in connection with the performance of its obligations specified in this Agreement.
8.2 The Recipient must not disclose the Discloser’s Confidential Information to any third party without obtaining the Discloser’s prior written consent, provided that the Recipient may disclose the Discloser’s Confidential Information to:
(a) its employees, agents and contractors, and those of any of its Affiliates, who have entered into a written agreement with the Recipient that is no less protective of the Discloser’s Confidential Information than this Agreement provided those persons have a need to know such information for the purposes of this Agreement;
(b) its lawyers, bankers, auditors, accountants and insurers, who have a need to know the information in order to provide professional advice to the Discloser relating to this Agreement.
8.3 You must ensure that each person who is issued with a password to access the Software does not disclose their password to any other person.
8.4 The Recipient must use, and must ensure that any person to whom it is permitted by this Agreement to disclose the Discloser’s Confidential Information to uses, the same measures to protect the Discloser’s Confidential Information as it uses to protect its own confidential information, but in no event less than reasonable measures.
8.5 The restrictions of this clause 7 shall not apply to information that:
(a) is independently developed by the Recipient without any access to the Confidential Information of the Discloser;
(b) becomes known to the Recipient without restriction, from a third party who, to the Recipient’s knowledge, was not bound by a confidentiality agreement with the Discloser, or otherwise prohibited from disclosing the information to the Recipient, or had the right to disclose it;
(c) was available to the Recipient on a non-confidential basis prior to disclosure by the Discloser;
(d) was lawfully in the possession of the Recipient before the information was disclosed to it by the Discloser;
(e) is or becomes in the public domain through no act or omission of the Recipient;
(f) the parties agree in writing is not confidential or may be disclosed; or
(g) is required to be disclosed under an order or requirement of a court, administrative agency, or other governmental body (but only to the minimum extent required to comply), provided however, that Recipient shall provide prompt notice to Discloser of any potential disclosure and shall use its reasonable efforts to prevent disclosure of such information.
8.6 Each party must:
(a) comply with the requirements of any Privacy Law in the state, territory or country in which the party (and/or the individual about whom the Personal Information relates) is located, and in any state, territory or country to which the Personal Information is to be sent;
(b) only use, manipulate, store, process and handle Personal Information for the purposes of performing its obligations, or exercising its rights, under this Agreement or as may be required by law;
(c) take all reasonable steps to:
(d) ensure that the Personal Information that it holds is accurate, up to date and complete;
(e) protect the Personal information from misuse, interference, loss, damage, unauthorised access, modification or disclosure, unlawful use or processing, including by taking appropriate technical and organisational measures;
(f) promptly delete Personal Information that is no longer required for a permitted purpose under this Agreement or the law;
(g) allow the individual about whom Personal Information is kept to obtain access to that Personal Information, inspect it and ensure that it is kept accurate and up to date (including requiring errors to be corrected), at no cost to the individual;
(h) ensure that at the time the party collects Personal Information from the individual, that the party has that individual’s consent to the parties’ collection, use, manipulation, storage, processing, handling and transfer interstate and/or overseas of the Personal Information for any purposes that are reasonably contemplated by this Agreement.
8.8 You agree that We are not liable for the acts and omissions of the providers or proprietors of the Software Platform in relation to your use of the Software Platform.
9.1 Where You are entitled to a statutory guarantee under clauses 54 to 59 of the Australian Consumer Law then to the extent that We fail to comply with such guarantee, Our liability for a failure to comply with such statutory guarantee is limited to one or more of the following, at Our option:
(a) the replacement of the goods or the supply of equivalent goods;
(b) the repair of the goods;
(c) the payment of the cost of replacing the goods or of acquiring equivalent goods;
(d) the payment of the cost of having the goods repaired,
unless it is not fair or reasonable for Us to rely on this term of the Agreement.
9.2 Where You are entitled to a statutory guarantee under clauses 60 to 62 of the Australian Consumer Law then to the extent that We fail to comply with such statutory guarantee, Our liability for a failure to comply with such statutory guarantee is limited to one of the following, at Our option:
(a) supplying the services again; or
(b) payment of the cost of having the services supplied again,
unless it is not fair or reasonable for Us to rely on this term of the Agreement.
9.3 For any claim that is not provided for in clauses 8.1 or 8.2 then to the extent permitted by law, and subject to clause 8.4, Our liability to You for any claim whether it be in contract (including under an indemnity), tort (including negligence), breach of statutory duty or otherwise, arising out of or in connection with Agreement shall be limited to the Fees paid for the Software from which the claim arises.
9.4 We are not liable for any loss, damage or expense which is:
(a) lost profits, lost revenue, failure to realise expected savings, lost or damaged data or business interruption or loss of goodwill; or
(b) indirect, consequential, special, punitive or exemplary, even if We have been advised of, know of, or should have known of the possibility of such loss, damage or expense.
9.5 You acknowledge and agree that owing to the nature of the Software, We do not represent or warrant:
(a) that the Software will meet Your or any users’ particular needs or purposes;
(b) that the Software will be fit for any particular purpose or be of merchantable quality;
(c) the quality, accuracy, features, functions, benefits or availability of the Software or any Third Party Software;
(d) that the Software will be, or remain compatible with, any Third Party Software;
(e) that access to the Software will be continuously available; or
(f) that the Software will be error free.
9.6 You must indemnify Us, Our Affiliates and all their respective contractors and pay any loss, damage or expense (including reasonable lawyers’ fees) suffered or incurred by any of them arising out of or in connection with breach of any of the provisions in clauses 2.1, 3 or any clause that provides You with an obligation to make payment to Us, clauses 10.5 or 10.6 except to the extent that the loss, damage or expense was directly caused by our breach of contract or negligence.
10.1 We may immediately terminate this Agreement and/or suspend Access to the Software by giving You written notice if:
(a) You breach any of the provisions of clauses 2.1, 3, 5, 6.3, 7, 10.5 and 10.6; or
(b) You breach any other provision of this Agreement and You do not remedy it within 14 days of Us providing You written notice of the breach.
10.2 You may terminate this Agreement in accordance with any rights you may have under the Australian Consumer Law.
10.3 If this Agreement terminates:
(a) any right to Access and use the Software terminates immediately;
(b) each party must immediately return to the other (or at the other party’s request destroy) any of the other’s Confidential Information.
10.4 You are solely responsible for ensuring that You have extracted any of Your information, including Customer Data that is in the Software prior to the end of the Term. We may, but are under no obligation to, delete all Your information, including Customer Data that is in the Software at any time after the end of the Term.
10.5 Any termination of this Agreement shall not prejudice, limit or restrict any other rights or remedies either party may have arising prior to such termination. To the extent permitted by law, We shall be under no obligation to refund any amounts paid by You for any of the Software that have been provided or performed prior to any termination of this Agreement.
11.1 Any notice that is given under this Agreement:
(a) by Us; may be:
(b) posted using pre-paid pre-paid priority letter post to You at any address that You have provided Us for sending any invoice or Your registered office;
(c) emailed to You at any email address provided by You;
(d) posted on the Website;
(e) made available through the Software Platform; or
(f) included on any invoice (which may be emailed or posted to You);
(g) by You; must be posted to Us using pre-paid priority letter at the address stated on the Our Website as Our global head office and addressed to the Chief Executive Officer.
11.2 A notice is deemed to be received:
(a) when posted from Australia to an address in Australia using pre-paid priority letter; within 5 business days after the date when it was posted;
(b) when posted with pre-paid post internationally, within 7 business days of the date when it was posted;
(c) when emailed; within 1 business day of the time that the email was sent, provided no notice of failure has been received by the sender within that business day; or
(d) within 10 days of being posted on the Website. You are responsible for ensuring that You check Our Website regularly to see any notice that is posted there.
11.3 You may send Us any notice relating to a claim under the Australian Consumer Law in accordance with the Australian Consumer Law.
12. Relationship of Parties
12.1 The parties to this Agreement are independent contractors. Nothing in this Agreement shall be deemed to create an employment, association, partnership, fiduciary or joint venture relationship between the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party. Except as expressly stated in this Agreement, neither party is authorised to act as the legal agent of the other.
13. Compliance with Laws
13.1 You must comply with all laws which are relevant to You performing Your obligations under this Agreement.
14.1 You must not assign or transfer this Agreement or any rights or obligations under this Agreement, in whole or part, without Our prior written consent.
14.2 We may assign or transfer this Agreement, in whole or part, without Your consent. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Notwithstanding clause 7. We may disclose any of Your Confidential Information or Personal Information which is reasonably necessary to affect any assignment or transfer.
15.1 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
16.1 Except as specifically provided otherwise in this Agreement, the rights and remedies provided under this Agreement are cumulative and in addition to, and not exclusive of, any rights or remedies provided by law.
16.2 If any part of this Agreement is determined to be invalid, illegal or unenforceable by any court or competent authority, such part will be severed from the remainder of the Agreement and the remaining provisions will continue in force.
16.3 If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
16.4 Except for Your obligations to pay Us under this Agreement, neither party shall be in breach of this Agreement nor liable to the other party for any failure or delay in performance caused by events beyond its reasonable control.
16.5 This Agreement, or any part of it, may be varied by the parties agreeing to the Variation in writing (and the Variation will be binding when both parties have signed the Variation).
16.6 The parties are entitled to rely on any notice or communication in electronic format, including any facsimile or email, that on its face appears authentic, and that has the purported author’s name on it to the same extent as if it were a document written by the author. The parties consent to this Agreement being signed or varied through electronic communication.
16.7 To the extent permitted by law this Agreement constitutes the entire agreement between the parties regarding the subject matter and supersedes all prior or contemporaneous agreements, arrangements, understandings and communications, whether written or oral.
16.8 All clauses which naturally survive termination of the Agreement will survive termination of this Agreement.
16.9 You acknowledge and agree that the Software may be subject to applicable export and import laws. You agree not to export the Software or any direct product thereof, directly or indirectly in violation of these laws, nor will You use it for any purpose prohibited by these laws.
17. Governing Law
17.1 This Agreement will be governed by the laws of New Sout Wales, Australia without regard to its conflict of law principles. The parties submit to the exclusive jurisdiction of the courts in New South Wales, Australia.
In this Agreement the following capitalised words have the following meaning given to them, unless the context requires otherwise.
18.1 Access means obtaining access to the Software on Your Device.
18.2 Agreement means the terms and conditions in this document.
18.3 Affiliate means any entity that is under the effective control of the entity that ultimately has effective control of the first-mentioned entity.
18.4 Australian Consumer Law means the Competition and Consumer Act 2010 (Cth).
18.5 Confidential Information means any non-trivial information however recorded, preserved, disclosed or communicated (whether directly, indirectly, orally or by writing), disclosed by either party or its Representatives to the other party or its Representatives in connection with this Agreement that, if disclosed in writing is marked as “Confidential” or “Proprietary,” or, if disclosed orally is identified as “Confidential” or “Proprietary” at the time of disclosure and is specifically identified as confidential in a written document provided by Discloser to Recipient within thirty (30) days after the oral disclosure, or which is, or ought to have been, understood by the parties, using reasonable business judgment, to be confidential.
18.6 Customer Data means any software, materials, code, data, text (whether or not perceptible by users), metatags, multimedia information (including sound, data, audio, video, graphics, photographs, or artwork), e-mail, chat room content, bulletin board postings, or any other items or materials that are provided by You to be entered in, or processed by, the Software (including data accessed from or in connection with Third Party Software).
18.7 Device means the device on which the Software is installed by You.
18.8 Discloser means the party that makes a disclosure of Confidential Information.
18.9 Fees means the amount payable for the Software, exclusive of Taxes, as specified on the Software Platform.
18.10 Intellectual Property Rights means copyright, moral rights, trade mark, design rights, service marks, patent, semiconductor or circuit layout rights, trade secrets, know-how, database rights or other rights in the nature of intellectual property rights (whether registered or unregistered), or any right to registration of such rights, existing in anywhere in the world, or protected by statute from time to time.
18.11 Our Marks means all trade marks, service marks, logos or other words or symbols identifying the Software or Our business.
18.12 Personal Information means any information or data that is subject to any Privacy Law.
18.13 Policies means the agreement(s) and/or any policies, terms and conditions You accepted prior to installing the Software on Your Device from the Software Platform, including any online store policy through which you obtain the Software.
18.14 Privacy Law means any law, regulation or common law which governs the use of information that is about, identifies or can be used to identify, any identifiable individual, or which is generally understood in the relevant jurisdiction to protect an individual’s privacy and/or to govern the collection, use, disclosure or transmission of Personal Information or data.
18.15 Recipient means the party that receives a disclosure of Confidential Information.
18.16 Representatives means the employees, agents, contractors of a party, or those of any Affiliate, and the professional representatives of a party providing advice in relation to the Agreement, including the lawyers, bankers, auditors, accountants and insurers of a party.
18.17 Software means the object code version of Our software program, or the web site that we use to deliver services, that is part of the Software, and any update and new release that may be made available by Us in Our discretion. The term Software does not include any Third Party Software.
18.18 Software Platform means the software platform Aerologix utilises to distribute the Software.
18.19 Taxes includes goods and services taxes, sales taxes, duties, withholding taxes, levies, imposts, charges or duties levied by any federal, state or local government which arise out of or in connection with the Software, Software or this Agreement, and any interest, penalties or liabilities incurred on such amounts, but excludes taxes based on Our net income.
18.20 Term means the period for which You have acquired the right to Access the Software, which shall be on-going unless this Agreement is terminated and/or You have received a refund for the Software and/or the Software has been uninstalled for any reason under the Policies.
18.21 Third Party Software means software that is owned by any person other than Us or Our Affiliates and with which the Software is designed to integrate with, as well as any data that is stored in or processed by the Third Party Software which is accessed or used in any way by the Software.
18.22 Variation means any addition, deletion or substitution to any part of this Agreement that is made in accordance with this Agreement.
18.23 You (and other grammatical forms of You) means the entity referred to in clause 1.2(b).
18.24 We, Us, Our means Aerologix Pty Ltd.
18.25 Website means Our website, currently at https://aerologix.com.