End User License Agreement
IMPORTANT: Please read the terms and conditions of product application set out below carefully prior to download, installation, copy or use. THROUGH DOWNLOADING, INSTALLING, COPYING OR USING THE SOFTWARE YOU ARE EXPRESSING YOUR CONSENT TO THESE TERMS AND CONDITIONS.
Software End-User License Agreement.
Under the terms of this Software End User License Agreement (hereinafter referred to as “the Agreement”) executed by and between The Art of Service Pty Ltd, having its registered office at 22B/302 South Pine Road Brendale, Qld 4500 Australia registered as a Pty Ltd Company ABN 19 095 825 308 and you, a physical person or legal entity (hereinafter referred to as “You" or "the End User”), You are entitled to use the Software defined in Article 1 of this Agreement. The Software defined in Article 1 of this Agreement can be stored on a data carrier, sent via electronic mail, downloaded from the Internet, downloaded from the Provider's servers or obtained from other sources, subject to the terms and conditions specified below.
THIS IS AN AGREEMENT ON END-USER RIGHTS AND NOT AN AGREEMENT FOR SALE. The Provider continues to own the copy of the Software and the physical media contained in the sales package and any other copies that the End User is authorized to make pursuant to this Agreement.
By purchasing and using the Software, You agree to the terms and conditions of this Agreement. If You do not agree to all of the terms and conditions of this Agreement, immediately do not purchase the Software.
YOU AGREE THAT YOUR USE OF THE SOFTWARE ACKNOWLEDGES THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
1. Software. As used in this Agreement the term "Software" means: (i) the The Art of Service Pty Ltd computer program and all components thereof; (ii) all the contents of the disks, CD-ROMs, DVDs, e-mails, Software As A Service, and any attachments, or other media with which this Agreement is provided, including the object code form of the Software supplied on a data carrier, via electronic mail or downloaded via the Internet; (iii) any related explanatory written materials and any other possible documentation related to the Software, above all any description of the Software, its specifications, any description of the Software properties or operation, any description of the operating environment in which the Software is used, instructions for use or installation of the Software or any description of how to use the Software (hereinafter referred to as “Documentation”); (iv) copies of the Software, patches for possible errors in the Software, additions to the Software, extensions to the Software, modified versions of the Software and updates of Software components, if any, licensed to You by the Provider pursuant to Article 3 of this Agreement. The Software shall be provided exclusively in the form of executable object code.
2. Installation. Software supplied on a data carrier, sent via electronic mail, downloaded from the Internet, downloaded from the Provider's servers or obtained from other sources requires installation. You must install the Software on a correctly configured computer, complying at least with requirements set out in the Documentation. The installation methodology is described in the Documentation. No computer programs or hardware which could have an adverse effect on the Software may be installed on the computer on which You install the Software.
3. License. Subject to the condition that You have agreed to the terms of this Agreement, You pay the License Fee within the maturity period and You comply with all the terms and conditions stipulated herein, the Provider shall grant You the following rights ("the License"):
a) Installation and use. You shall have the non-exclusive, non-transferable right to install the Software on the hard disk of a computer or other permanent medium for data storage, installation and storage of the Software in the memory of a computer system and to implement, store and display the Software.
b) Stipulation of the number of licenses. The right to use the Software shall be bound by the number of End Users. One End User shall be taken to refer to the following: (i) installation of the Software on one computer system; or (ii) if the extent of a license is bound to the number of mail boxes, then one End User shall be taken to refer to a computer user who accepts electronic mail via a Mail User Agent (hereinafter referred to as “an MUA”). If an MUA accepts electronic mail and subsequently distributes it automatically to several users, then the number of End Users shall be determined according to the actual number of users for whom the electronic mail is distributed. If a mail server performs the function of a mail gate, the number of End Users shall equal the number of mail server users for which the said gate provides services. If an unspecified number of electronic mail addresses are directed to and accepted by one user (e.g., through aliases) and messages are not automatically distributed by the client to a larger number of users, a License for one computer shall be required. You must not use the same License at the same time on more than one computer.
c) Business Edition. A Business Edition version of the Software must be obtained to use the Software on SharePoint servers or SharePoint Hosting Providers.
d) Term of the License. Your right to use the Software shall be time-limited.
e) OEM Software. OEM Software shall be limited to the computer You obtained it with. It cannot be transferred to a different computer
f) NFR, TRIAL Software. Software classified as "Not-for-resale", NFR or TRIAL cannot be assigned for payment and must only be used for demonstration or testing the Software's features.
h) Termination of the License. The License shall terminate automatically at the end of the period for which granted. If You fail to comply with any of the provisions of this Agreement, the Provider shall be entitled to withdraw from the Agreement, without prejudice to any entitlement or legal remedy open to the Provider in such eventualities. In the event of cancellation of the License, You must immediately delete, destroy or return at your own cost, the Software and all backup copies to The Art of Service Pty Ltd or to the outlet from which You obtained the Software.
4. Connection to the Internet. To operate correctly the Software requires connection to the Internet and must connect at regular intervals to the Provider's servers or third-party servers. Connection to the Internet is necessary for the following features of the Software:
a) Updates to the Software. The Provider shall be entitled from time to issue updates to the Software ("Updates"), but shall not be obliged to provide Updates. This function is enabled under the Software's standard settings and Updates are therefore installed automatically, unless the End User has disabled automatic installation of Updates.
5. Exercising End User rights. You must exercise End User rights in person or via your employees. You are only entitled to use the Software to safeguard your operations and protect those computer systems for which You have obtained a License.
6. Restrictions to rights. You may not copy, distribute, extract components or make derivative works of the Software. When using the Software You are required to comply with the following restrictions:
(a) You may make one copy of the Software on a permanent storage medium as an archival back-up copy, provided your archival back-up copy is not installed or used on any computer. Any other copies You make of the Software shall constitute breach of this Agreement.
(b) You may not use, modify, translate or reproduce the Software or transfer rights to use the Software or copies of the Software in any manner other than as provided for in this Agreement.
(c) You may not sell, sub-license, lease or rent or borrow the Software or use the Software for the provision of commercial services.
(d) You may not reverse engineer, reverse compile or disassemble the Software or otherwise attempt to discover the source code of the Software, except to the extent that this restriction is expressly prohibited by law.
(e) You agree that You will only use the Software in a manner that complies with all applicable laws in the jurisdiction in which You use the Software, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.
7. Copyright. The Software and all rights, without limitation including proprietary rights and intellectual property rights thereto are owned by The Art of Service Pty Ltd and/or its licensors. They are protected by international treaty provisions and by all other applicable national laws of the country in which the Software is being used. The structure, organization and code of the Software are the valuable trade secrets and confidential information of The Art of Service Pty Ltd and/or its licensors. You must not copy the Software, except as set forth in Article 6(a). Any copies which You are permitted to make pursuant to this Agreement must contain the same copyright and other proprietary notices that appear on the Software. If You reverse engineer, reverse compile, disassemble or otherwise attempt to discover the source code of the Software, in breach of the provisions of this Agreement, You hereby agree that any information thereby obtained shall automatically and irrevocably be deemed to be transferred to and owned by the Provider in full, from the moment such information comes into being, notwithstanding the Provider's rights in relation to breach of this Agreement.
8. Reservation of rights. The Provider hereby reserves all rights to the Software, with the exception of rights expressly granted under the terms of this Agreement to You as the End User of the Software.
9. Multiple language versions, dual media software, multiple copies. In the event that the Software supports multiple platforms or languages, or if You receive multiple copies of the Software, You may only use the Software for the number of computer systems and for the versions for which You obtained a License. You may not sell, rent, lease, sub-license, lend or transfer versions or copies of the Software which You do not use.
10. Commencement and termination of the Agreement. This Agreement is effective from the date You agree to the terms of this Agreement. You may terminate this Agreement at any time by permanently uninstalling, destroying and returning, at your own costs, the Software, all back-up copies and all related materials provided by the Provider or its business partners. Irrespective of the manner of termination of this Agreement, the provisions of Articles 7, 8, 11, 13, 20 and 22 shall continue to apply for an unlimited time.
11. END USER DECLARATIONS. AS THE END USER YOU ACKNOWLEDGE THAT THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NEITHER THE PROVIDER, ITS LICENSORS OR AFFILIATES NOR THE COPYRIGHT HOLDERS MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE SOFTWARE WILL NOT INFRINGE ANY THIRD PARTY PATENTS, COPYRIGHTS, TRADEMARKS OR OTHER RIGHTS. THERE IS NO WARRANTY BY THE PROVIDER OR BY ANY OTHER PARTY THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR THE SELECTION OF THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM IT.
12. No other obligations. This Agreement creates no obligations on the part of the Provider and its licensors other than as specifically set forth herein.
13. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE PROVIDER, ITS EMPLOYEES OR LICENSORS BE LIABLE FOR ANY LOST PROFITS, REVENUE, SALES, DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, PROPERTY DAMAGE, PERSONAL INJURY, INTERRUPTION OF BUSINESS, LOSS OF BUSINESS INFORMATION OR FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, ECONOMIC, COVER, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE OR OTHER THEORY OF LIABILITY, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF THE PROVIDER OR ITS LICENSORS OR AFFILIATES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIABILITY, BUT MAY ALLOW LIABILITY TO BE LIMITED, IN SUCH CASES, THE LIABILITY OF THE PROVIDER, ITS EMPLOYEES OR LICENSORS OR AFFILIATES SHALL BE LIMITED TO THE SUM THAT YOU PAID FOR THE LICENSE.
14. Nothing contained in this Agreement shall prejudice the statutory rights of any party dealing as a consumer if running contrary thereto.
15. Technical support. The Art of Service Pty Ltd or third parties commissioned by The Art of Service Pty Ltd shall provide technical support at their own discretion, without any guarantees or declarations. The End User shall be required to back up all existing data, software and program facilities prior to the provision of technical support. THE ART OF SERVICE PTY LTD LLC and/or third parties commissioned by THE ART OF SERVICE PTY LTD LLC cannot accept liability for damage or loss of data, property, software or hardware or loss of profits due to the provision of technical support. THE ART OF SERVICE PTY LTD LLC and/or third parties commissioned by THE ART OF SERVICE PTY LTD LLC reserve the right to decide that resolving the problem is beyond the scope of technical support. THE ART OF SERVICE PTY LTD reserves the right to refuse, suspend or terminate the provision of technical support at its own discretion.
16. Transfer of the License. The Software can be transferred from one computer system to another, unless contrary to the terms of the Agreement. If not contrary to the terms of the Agreement, the End User shall only be entitled to permanently transfer the License and all rights ensuing from this Agreement to another End User with the Provider's consent, subject to the condition that (i) the original End User does not retain any copies of the Software; (ii) the transfer of rights must be direct, i.e. from the original End User to the new End User; (iii) the new End User must assume all the rights and obligations incumbent on the original End User under the terms of this Agreement; (iv) the original End User has to provide the new End User with documentation enabling verification of the genuineness of the Software as specified under Article 17.
17. Verification of the genuineness of the Software. The End User may demonstrate entitlement to use the Software in one of the following ways: (i) through a license certificate issued by the Provider or a third party appointed by the Provider; (ii) through a written license agreement, if such an agreement was concluded; (iii) through the submission of an e-mail sent to the Provider containing licensing details (user name and password) enabling Updates.
18. Data regarding the End User and protection of rights. As the End User, You hereby authorize the Provider to transfer, process and store data enabling the Provider to identify You. You hereby agree to the Provider using its own means to check whether You are using the Software in accordance with the provisions of this Agreement. You hereby issue your agreement to data being transferred, during communication between the Software and the Provider's computer systems or those of its business partners, the purpose of which is to ensure functionality of and authorization to use the Software and protection of the Provider’s rights. Following conclusion of this Agreement, the Provider or any of its business partners shall be entitled to transfer, process and store essential data identifying You, for billing purposes and performance of this Agreement.
19. Licensing for public authorities and the US Government. The Software shall be provided to public authorities including the United States Government with the license rights and restrictions described in this Agreement.
20. Export and re-export control. The Software, the Documentation or components thereof, including information about the Software and components thereof, shall be subject to import and export controls under legal regulations which may be issued by governments responsible for issue thereof under applicable law, , including US law. Export Administration Regulations and end-user, end-use and destination restrictions issued by the US Government and other governments. . You agree to comply strictly with all applicable import and export regulations and acknowledge that You have the responsibility to obtain all licenses required to export, re-export, transfer or import the Software.
21. Notices. All notices and return of the Software and Documentation must be delivered to: THE ART OF SERVICE PTY LTD, via email at firstname.lastname@example.org
22. Applicable law. This Agreement shall be governed by and construed in accordance with the laws of Australia and specifically the State of Queensland. The End User and the Provider hereby agree that the principles of the conflict of laws and the United Nations Convention on Contracts for the International Sale of Goods shall not apply. You expressly agree that any disputes or claims ensuing from this Agreement with respect to the Provider or any disputes or claims relating to use of the Software shall be settled by State of Texas District Court and You expressly agree to the said court exercising jurisdiction.
23. General provisions. Should any of the provisions of this Agreement be invalid or unenforceable, this shall not affect the validity of the other provisions of the Agreement, which shall remain valid and enforceable in accordance with the conditions stipulated therein. This Agreement may only be modified in written form, signed by an authorized representative of the Provider or a person expressly authorized to act in this capacity under the terms of a power of attorney.
This is the entire Agreement between the Provider and You relating to the Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software.