1.1 By proceeding to download the Shape Library you confirm your agreement to the terms of this End User License Agreement (“the Agreement”).
1.2 YOUR ACCEPTANCE OF THESE TERMS IS AN ABSOLUTE CONDITION TO YOUR ACCESS TO AND USE OF ANY SHAPE LIBRARY. DOWNLOADING AND/OR USING ANY SHAPE LIBRARY FROM THE COMPANY CONFIRMS YOUR ACCEPTANCE OF THESE TERMS AND FORMS A LEGAL CONTRACT BETWEEN YOU AND THE COMPANY.
1.3 Except to the extent expressly licensed herein, all rights are reserved to the Company and its third party suppliers.
1.4 You acknowledge and agree that the Company may amend this Agreement from time to time without notice and such amended terms will be binding on you. It is your responsibility to review the Agreement and accept any such changes or, if You do not accept the Agreement as amended, to immediately cease using the Software in accordance with this Agreement.
“Company” means McQuillen Interactive Pty. Ltd. ACN 600 623 069.
“Licence Fee” means the license fee which you have agreed to pay in connection with this Agreement and the license of the Shape Library.
“SimpleDiagrams application” means the SimpleDiagrams software which is a prerequisite to the use of the Shapes and Shape Library.
"Shapes" means the individual graphic shapes that are combined into a Shape Library.
“Shape Library” means the group of individual Shapes sold together as one unit for use with the SimpleDiagrams application and which you request use of in connection with this agreement.
"Storage Media" shall mean CD-ROM, digital video disc (DVD), floppy disk, or any other storage device or media now known, or hereafter created.
"User" shall mean the individual, legal entity or agent entering into this Agreement or any employee or contractor of such individual, legal entity or agent that edits, manipulates or modifies the Shape(s) or are otherwise directly involved in the creative process. All Users shall only use the Shape Library(s) in accordance with the terms of this Agreement.
"You" shall mean you, a single: (i) individual, (ii) legal entity (corporation, partnership, LLC, sole proprietorship, etc.), or (iii) agent acting on behalf of a single individual or entity.
3.1 Except as provided otherwise in this Agreement, the Company, and its third party suppliers, retains all present and future right title and interest (including copyright in accordance with the Copyright Act 1968 (Cth)) in and to:
(a) the Shapes;
(b) the Shape Library; and
(c) any documentation, images or text which accompanies the Shapes or Shape Library,
and this Agreement confers neither title to nor ownership in the Shapes or Shape Library and is not a sale of any rights in the Software.
3.2 The Company may assign its rights under this Agreement to third party suppliers to enable such third party suppliers to Protect their rights in the event of any violation of this Agreement as if such suppliers were parties to this Agreement.
4. GRANT OF LICENSE
4.1 In exchange for payment of the License Fee, the Company grants you a perpetual, non-exclusive and non-transferable license to use the Shapes in the Shape Library only as provided in this Agreement.
5. NUMBER OF USERS
5.1 YOU ARE GRANTED A ONE USER, SINGLE USE LICENSE FOR USE OF THE Shapes AND SHAPE LIBRARY. THIS IS NOT A SIMULTANEOUS USE LICENSE. Only the User may access or use the Shape Library. The library may be installed within any SimpleDiagrams application authorized to the User.
5.2 If the Shape Library is to be used by more than one user, please contact us as you will require a multiple user license.
6. PERMITTED USES
6.1 The Company grants You the following limited rights to (subject Section 6 below):
(a) Back up, and store, the Shape Library as necessary on a single server for archival, tracking or asset management purposes only.
(b) Use the Shapes in the Shape Library in any print or electronic media including advertising, marketing, educational, promotional, sales, entertainment and editorial use, provided such use is not intended to allow the re-distribution, re-use of the Shapes or Shape Library or access to the Shape(s) apart from a product or service.
(c) Use the Shapes on product packaging or in any items for personal use or resale, including book covers, calendars, consumer merchandise (T-shirts, posters, art, etc.), provided such use is not intended to allow the re-distribution, re-use of the Shapes or access to the Shapes or Shape Library apart from a product or service.
(d) Modify or alter the Shapes as necessary for your use, subject to the terms of Section 6, and provided that if such modification or alteration constitutes a derivative work you do not acquire any copyright ownership or equivalent rights in or to any of the Shapes or any other property of the Company or its partners or third party suppliers and you shall only use such derivative work in accordance with this Agreement. If requested by the Company, you agree to execute a written assignment of any such rights, including copyrights, at no cost to the Company.
(e) Use the Shapes as decor in an office, lobby, public area, restaurant, or retail store.
(f) Use the Shapes as design elements in video, film, or television broadcasts.
(g) Use the Shapes in connection with your business or entity, e.g. corporate identity documents and letterhead, except as prohibited below.
(h) Use the Shapes for any other uses approved in writing by the Company.
7. PROHIBITED USES
7.1 You must NOT:
(a) Sublicense, distribute, transfer or assign rights to the Shapes or Shape Library.
(b) Copy or reproduce the Shapes, except as specifically provided for in Section 6 (“Permitted Uses”).
(c) Use the Shapes, or any part of the Shapes, as part of a trademark, service mark, or logo. the Company or its third party suppliers retain the full rights to the Shapes, and therefore you cannot establish, or purport to establish, your own proprietary rights in the Shapes.
(d) Use the Shapes to compete with the Company. The company is in the business of licensing images to its customers. It is the specific intent of this provision to prohibit you from using the Shapes to enter, either directly or indirectly, a similar or competing business.
(e) Use the Shapes in any way that could be considered defamatory, pornographic, libelous, immoral, obscene or fraudulent, or illegal, either by making physical changes to it, in the juxtaposition to accompanying text or images, or otherwise.
(f) Use the Shapes beyond any limitations or restrictions noted on the Company’s Website.
(g) Use the Shapes or Shape Library other than in conjunction with SimpleDiagrams application.
(h) Use the Shapes in a manner which is otherwise not stated in Section 6 (“Permitted Uses”).
8.1 This Section 8 applies if:
(a) You distribute or publicly use the Shapes, Shape Library or a derivative work which makes use of the Shapes or Shape Library (“the Works”); and
(b) the Shapes or Shape Library is accompanied by a copyright notice or a statement to that effect (“Copyright Notices”).
8.2 You must keep intact all Copyright Notices for the Shapes of Shape Library.
8.3 When you distribute or publicly use of the Works, you must provide in a reasonable manner:
(a) the name of the original author and any other party which the original author has requested be attributed;
(b) any other information specified in the Copyright Notice;
(c) if the Work is a derivative work, you must indicate the extent the manner in which the Work has been varied.
8.4 Notwithstanding the above, you must not assert or imply that the Company, original author, or any other party referred to in the Copyright Notice endorses or sponsors your use the Works without their separate express and prior written consent.
9. AVAILABILITY AND REPLACEMENT
9.1 The Company reserves the right to notify you that certain Shapes or the Shape Library is no longer available for use. Upon such notification, the license to use such Shapes and the Shape Library shall automatically and immediately terminate.
9.2 All other rights not expressly granted to you are reserved solely for the Company.
9.3 The Company reserves the right to replace Shapes and Shape Library(s) with an alternative Shapes and/or Shape Library(s) for any reason. Upon notice of such replacement, the license for the replaced Shapes or Shape Library(s) immediately, and automatically, terminates for any use of the Shape(s) or Shape Library(s) that do not already exist, and this Agreement shall automatically apply to any replacement Shape(s) and Shape Library(s). You agree not to use any replaced Shape(s) and Shape Library(s) with future products or services and you shall take all reasonable steps to discontinue use of the replaced Shape(s) and Shape Library(s) in existing products or services.
9.4 You agree that the Company is only obligated to provide you with access to download link for the purchased Shape Library to enable you to download the plugin once. The Company may make the Shape Library available for You to download on other subsequent occasions at its absolute and sole discretion. You are solely responsible for maintaining a back-up of the Shape Library in a manner permitted by Section 6(a).
10. PAYMENT TERMS
10.1 You agree to pay the License Fee and no rights are granted under this Agreement until all payments are made in full. A service charge of two percent (2%) per month, or the amount allowed by law, will be charged on any unpaid balance. Any claims for adjustments must be made to the Company within five (5) days of billing. You shall be liable for all past due amounts, interest and costs of collection, including attorneys' fees. Refunds are governed by the terms of the individual service used.
10.2 If the Shapes and Shape Library are offered by the Company at no cost, you are not required to make any payments for the Shape Library, but you are bound by all provisions in this Agreement.
11.1 This Agreement will continue until terminated as provided herein.
11.2 The Company may terminate this Agreement, and the license granted pursuant to it, immediately without notice to you for your failure to comply with any of the terms set out in this Agreement.
11.3 You can terminate the licenses granted under this Agreement by destroying the Shapes and Shape Library, along with any copies or archives, any CD-ROM or accompanying materials (if applicable), and ceasing all use of the Shapes and the Shape Library for any purpose. Such termination will not affect outstanding payment obligations.
11.4 Upon termination of this Agreement for any reason, you must immediately:
(a) destroy all copies and archives of the Shapes and Shape Library;
(b) cease using the Shapes for any purpose; and
(c) confirm to the Company in writing that you have complied with these requirements.
(d) Termination of this Agreement does not affect the accrued rights of either party to this Agreement.
12. WARRANY AND LIMITATION OF LIABILITY
12.1 The Company represents and warrants that the Shapes or other Storage Media (if applicable) will be free from defects in materials and workmanship under normal use for a period of 30 days from the date of license.
12.2 DISCLAIMER OF WARRANTY. EXCEPT AS PROVIDED IN SECTION 12 ABOVE, THE SHAPE) AND SHAPE LIBRARY, STORAGE MEDIA AND ACCOMPANYING MATERIALS (IF APPLICABLE) ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY MAKES NO WARRANTIES FOR ANY IMAGES THAT HAVE BEEN MODIFIED OR ALTERED BY YOU AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY CLAIMS RELATING TO OR ARISING OUT OF YOUR MODIFICATION AND USE OF THE IMAGES.
12.3 THE COMPANY GRANTS NO RIGHTS OR WARRANTIES WITH RESPECT TO THE USE OF NAMES, TRADEMARKS, LOGO TYPES, COPYRIGHTED DESIGNS OR WORKS OF ART OR ARCHITECTURE DEPICTED IN ANY IMAGE, AND THE USER MUST SATISFY ITSELF THAT ALL NECESSARY RIGHTS, CONSENTS, OR PERMISSIONS AS MAY BE REQUIRED ARE OBTAINED. THE COMPANY DOES NOT WARRANT THAT THE IMAGES, WEB SITES OR OTHER MATERIALS, WILL MEET YOUR REQUIREMENTS OR THAT USE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY, PERFORMANCE AND USE OF THE Shapes AND SHAPE LIBRARY IS SOLELY WITH YOU. YOU UNDERSTAND THAT YOU SHOULD SEEK COMPETENT COUNSEL BEFORE USING IMAGES ON OR IN CONNECTION WITH ANY GOODS OR SERVICES OR FOR ANY OTHER COMMERCIAL PURPOSES. THE COMPANY SHALL NOT BE LIABLE TO YOU OR TO ANY OTHER ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF YOUR USE OF THE Shapes, THE COMPANY’S BREACH OF THIS AGREEMENT OR OTHERWISE, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. IN NO EVENT, SHALL THE COMPANY’S TOTAL AGGREGATE LIABILITY TO YOU, OR TO ANY THIRD PARTY CLAIMING THROUGH YOU, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE Shapes AND SHAPE LIBRARY (WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED TWO (2) TIMES THE MONETARY AMOUNT ACTUALLY RECEIVED BY THE COMPANY FOR YOUR USE OF THE APPLICABLE IMAGES.
12.4 You represent, warrant and covenant that:
(a) You are at least eighteen years of age and have the full right and authority to enter into this Agreement on behalf of you and/or your company, employer or principal;
(b) You do not reside in any country to which export of US products are prohibited or restricted and you may not ship, transfer or export any of the Images into any country or use any of the Images in any manner prohibited by any laws, restrictions or regulations;
(c) You will not use the Shapes and Shape Library in any way that is not permitted by this Agreement;
(d) Your use of the Shapes and Shape Library will not violate any applicable law or regulation of any country, state, or other governmental entity;
(e) The information that you provide to the Company is accurate and true, including, without limitation, all credit card or other payment information and you shall update such information as necessary;
(f) You are solely responsible for determining whether your use of any Shapes and Shape Library requires the consent of any other party or the license of any additional rights. If you are unsure whether additional rights are needed for your use of the Images, you are responsible for consulting with competent legal counsel; and
(g) If you are acting as an agent, you must inform your client/principal of the terms of this Agreement.
13. LIMITATION OF REMEDIES
13.1 Subject to mandatory requirements of the Competition and Consumer Act 2010 (Cth), the Company’s entire liability and your exclusive remedy, with respect to any claims arising out of this Agreement, shall be at the Company’s sole discretion, either:
(a) replacement of Shape Library; or
(b) refund of any fee paid for the specific Shape Library.
13.2 Any claims must be brought within twelve (12) months of the date that you discovered such claim, or reasonably should have discovered such claim, or reasonably should have discovered such claim, shall be waived.
14.1 You agree to indemnify and hold the Company, its partners, affiliates, parents, subsidiaries, employees, directors, officers, successors, assigns, distributors and anyone else associated with the Company, harmless from, and against, any and all claims, liabilities, costs, damages, or expenses, (including attorneys' fees) asserted against the Company arising out of your use of the Images or in connection with any breach of any of the terms of this Agreement. You may elect to assume the handling, settlement or defense of any claim or litigation and the Company shall reasonably cooperate in the defense of any claim. The Company shall have the right to participate in the litigation, at its own expense, through counsel of its choosing. You will not be liable for legal fees or other costs incurred prior to the Company giving notice of the claim for which indemnity is sought.
15.1 You agree to pay and be solely responsible for any and all sales taxes, use taxes, value added taxes and duties imposed by any jurisdiction as a result of the license granted to you, or your use of the Shapes, pursuant to this Agreement, if those taxes and duties are not collected by the payment provider used by the Company to sell the Shape Library.
16.1 No action of the Company, other than an express written, signed waiver may be construed as a waiver of any part of this Agreement, and no employee of the Company is authorized to make an oral waiver. In the event that the Company waives a specific part of the Agreement, it does not mean that the Company waives any other part.
17.1 If any provision of this agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this agreement and rendered ineffective as far as possible without modifying the remaining provisions of this agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this agreement.
18. GOVERNING LAW AND JURISDICTION
18.1 You acknowledge and agree that in the event that you bring any legal action or claim against the Company under this Agreement:
(a) You must enter into mediation with the company prior to commencing and legal action against the Company, with such mediation to be:
i. In Melbourne, Victoria;
ii. Conducted by a mediator appointed by the Chairman of LEADR or the Chairman’s nominee; and
iii. Conducted within thirty (30) days of you giving the Company notice of the dispute,
iv. and the costs of the mediation must be borne equally by the parties;
(b) this Agreement will be governed in all respects by the laws of the State of Victoria, Australia and you submit to the exclusive jurisdiction and forum of the courts of Melbourne, Victoria and all courts competent to hear appeals from those courts.
19. LEGAL FEES
19.1 You agree to reimburse the Company for its legal fees, costs and disbursements if the Company is successful in enforcing any of its rights under this Agreement including, without limitation, in connection with any action to collect payment.
20.1 You may not assign or transfer to anyone else the rights granted to you in this Agreement, without prior written consent from the Company.
20.2 The Company may assign or transfer its rights under this Agreement to any person or persons without restriction.
21.1 The Company may give notice by means of:
(a) a general notice on the Company website;
(b) electronic mail to your email address on record with the Company; or
(c) by written communication sent by first class mail or prepaid post to your address on record,
(a) 48 hours after mailing or posting (if sent by first class mail or prepaid post); or
(b) 12 hours after sending (if sent by email).
21.2 You may give notice to Company at any time by means of letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Company's addresses on its website, and such notice will be deemed to have been given on the day it is received by the Company or, if that day is a Saturday, Sunday or public holiday in Melbourne, Victoria, at 9.00am on the next eligible day. All notices must be in English.
22. CANCELLATION WITHIN FIFTEEN (15) DAYS
22.1 If you wish to cancel the rights granted in this Agreement and your invoice, the following apply:
(a) You may cancel and receive a full refund within fifteen (15) days of your purchase date. After fifteen (15) days from downloading, no cancellations will be accepted, no refunds made.
(b) By requesting a refund, You hereby represent and warrant that:
i. You have deleted or destroyed all downloaded Shape Library(s)
ii. that You have not, and will not use any Shapes from the Shape Library(s), and
iii. that a breach of the foregoing shall require you to immediately repay the entire subscription fee plus damages to the Company.
23. ENTIRE CONTRACT
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND THE COMPANY, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND THE COMPANY RELATING TO THE SUBJECT OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY PURCHASE ORDER TERMS (EVEN IF SUCH TERMS ARE SUBSEQUENT TO THE DATE OF THIS AGREEMENT). FAQ'S, OTHER EXPLANATIONS, AND TEXT IN THE COMPANY’S WEB SITES ARE FOR YOUR INFORMATION ONLY AND ARE NOT, AND SHALL NOT BE CONSTRUED AS, PART OF THIS AGREEMENT UNLESS SPECIFIED OTHERWISE IN THIS AGREEMENT.
Copyright © 2014 McQuillen Interactive Pty Ltd All rights reserved.