1.1 By installing or using the McQuillen Interactive Pty. Ltd. (the "Company") product SimpleDiagrams (the "Software") you indicate your agreement to the terms of this End User License Agreement (the "Agreement").
1.2 USE OF THE SOFTWARE IS SUBJECT TO YOUR ACCEPTANCE OF THE TERMS SET FORTH BELOW. IF YOU DO NOT ACCEPT THESE TERMS YOU ARE NOT AUTHORIZED TO USE THE SOFTWARE.
1.3 Except to the extent expressly licensed herein, all rights are reserved to Company and its suppliers.
2.1 In this Agreement, the following definitions apply:
(a) “corporate entity” means any incorporated or unincorporated entity of legal personhood and, for the absence of doubt, excludes natural persons;
(b) “individual” means a natural person;
(c) “library shapes” means the graphic shapes that come either packaged with the software or are made available as plugins ; and
(d) “use” means storing, loading, installing or executing the Software.
3. LICENSE GRANT
3.1 Grant of Licence
The Company grants you a nonexclusive, royaltyfree, worldwide right and license to use the executable version of the Software (License Grant).
You may make copies or adaptations of the Software:
(a) for archival purposes; or
(b) when copying or adaptation is an essential step in the authorized use of the Software, provided that:
(c) the copy is unmodified from the original distribution; and
(d) the copy retains all of the original Software's proprietary notices including all copyright notices.
3.3 Prohibited activities
You must not:
(a) modify the Software or disable any licensing or control features of the Software;
(b) copy any written materials accompanying the Software; or
(c) rent or lease your rights to the Software or documentation' or otherwise sublicense or transfer the Software or any portion thereof in any way.
3.4 Individual licensee
If you are an individual and this Agreement is for a single license, you may install the Software on up to three computers provided:
(a) not more than one of those computers is in use simultaneously; and
(b) those computers are solely for your own use.
3.5 Multi-user (site) licensesIf this Agreement is for a multiuser (site) license:
(a) each license you purchase is for one user;
(b) each user can install the Software on three of their own machines; and
(c) you may use this software in a networked environment on computers other than the computer on which the software is installed provided that you have purchased licenses for each user that will use the software.
3.6 Exploitation of library shapes
(a) The License Grant does not give you the right to sell, distribute, or commercially exploit the library shapes included with the Software.
(b) For the absence of doubt, you may use the library shapes as a tool in the daytoday activities of your organization, including demonstration, marketing and sales activities.
3.7 Trial version
(a) The Company may make a trial version of the Software available from time to time for which a license fee is not payable.
(b) All of the functionality of the Software may not be available to you in the "Trial" version.
(c) You must not at any time attempt to activate by any means any feature in the “Trial” version which has been intentionally disabled by the Company.
4. LICENSE FEE
4.1 Payment of license fee
You must pay a one time license fee to the Company in order to use the "Full" version of the Software, whether by new installation, upgrade of a “Trial” version of the Software, or otherwise. The amount of the license fee from time to time will be subject to the number of seats which you license, and will appear in the terms and conditions of the SimpleDiagrams web site.
4.2 No refunds
The license fee is nonrefundable.
4.3 Tax excluded
The license fee does not include any sales or other tax that your jurisdiction may impose on the license fee (excluding GST), for which you (and not the Company) will be responsible.
In this clause 5:
(a) The expressions Consideration, GST, Input Tax Credit, Recipient, Supply, Tax Invoice and Taxable Supply have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 199 (GST Act); and
(b) Supplier means any party treated by the GST Act as making a supply under this agreement.
5.2 Payments inclusive of GST
All fees or other sums payable or consideration to be provided under or in accordance with this agreement are inclusive of GST unless expressly stated otherwise.
5.3 Payment of GST
If GST is imposed on any Supply made under or in accordance with this agreement, the Recipient of the Taxable Supply must pay to the Supplier an additional amount equal to the GST payable on or for the Taxable Supply, subject to the Recipient receiving a valid Tax Invoice in respect of the Supply at or before the time of payment.
5.4 Method of payment
Payment of an additional amount payable under clause 5.3 must be made at the same time and in the same way as payment for the Taxable Supply is required to be made in accordance with this agreement.
5.5 Reimbursable expenses
If this agreement requires a party (the First Party) to pay for, reimburse, set off or contribute to any expense, loss or outgoing (Reimbursable Expense) suffered or incurred by the other party (the Other Party), the amount required to be paid, reimbursed, set off or contributed by the First Party will be the sum of:
(a) The amount of the Reimbursable Expense net of Input Tax Credits (if any) to which the Other Party is entitled in respect of the Reimbursable Expense (Net Amount); and
(b) If the Other Party’s recovery from the First Party is a Taxable Supply, any GST payable in respect of that Supply,
such that after the Other Party meets the GST liability, it retains the Net Amount.
6. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS
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 Software (whether in binary or source form);
(b) any documentation to the Software;
(c) the “SimpleDiagrams” trade mark and any other trade marks in relation to the Software;
(d) the library shape graphics contained there; and
(e) any other related materials in which copyright, trade mark, patent, design, trade secret, or other intellectual property rights exist anywhere in the world, whether such rights are registered, unregistered or registrable,
and your license confers neither title to nor ownership in the Software and is not a sale of any rights in the Software.
6.2 Free and open source components
Some parts of the Software may be licensed under a free and open source license, the terms of which are provided as an annexure to this agreement. Nothing in this agreement restricts your rights under those licenses with respect to those components to which such a license applies.
6.3 EnforcementThe Company’s third party suppliers may protect their rights in the event of any violation of this License Agreement as if such suppliers were parties to this License Agreement.
No license is given to you under any patent or patent application of Company.
7. NO DISASSEMBLY, RECOMPILATION OR DECRYPTION
7.1 No disassembly or decryption
To the extent permitted by law, you must not disassemble or decompile the Software without the Company's prior written consent.
7.2 Company to be informed of disassembly or decompilation
Where you are permitted by law to disassemble, decompile, or otherwise revert the binary form of the Software to source code by any means, you must provide the Company with reasonably detailed information regarding any disassembly or decompilation.
7.3 Decryption prohibited
You must not decrypt the Software unless decryption is an essential step in the authorized use of the Software.
7.4 Use of source code
If you have obtained a source code version of this program, you acknowledge and agree that:
(a) source code is provided exclusively as an educational service;
(b) the Company provides no guarantee as to the integrity of the source code after the source code has left the Company’s control; and
(c) all responsibility for all use of source code is yours alone and that Company expressly excludes any responsibility or liability for any use of source code by you.
8. NO WARRANTIES
8.1 WARRANTIES EXCLUDED
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY EXPRESSLY:
(a) DISCLAIMS ANY WARRANTY FOR THE SOFTWARE;
(b) PROVIDES THE SOFTWARE AND ANY RELATED DOCUMENTATION "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF:
(ii) FITNESS FOR A PARTICULAR PURPOSE; AND
(iii) THE WARRANTY OF NONINFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS; AND
(c) DOES NOT WARRANT THAT THE SOFTWARE WILL BE ERRORFREE, COMPLETE OR CORRECT.
FOR THE ABSENCE OF DOUBT, THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE REMAINS WITH YOU.
8.3 WARRANTIES AT LAW
WHERE A WARRANTY OR GUARANTEE IS IMPLIED INTO THIS AGREEMENT BY LAW, SUCH WARRANTY OR GUARANTEE IS IMPLIED TO THE MINIMUM EXTENT NECESSARY TO GIVE EFFECT TO THAT LAW.
9. NO LIABILITY FOR DAMAGES
9.1 LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER THE COMPANY NOR ITS OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS OR SUPPLIERS SHALL BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF OR RELATING TO THE USE OR INABILITY TO USE THIS SOFTWARE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 MAXIMUM LIABILITY OF COMPANY
THE COMPANY'S LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE LICENSE FEE, IF ANY, PAID BY YOU DIRECTLY TO THE COMPANY FOR USE OF THE SOFTWARE OR ANY LICENSE FEE RECEIVED BY THE COMPANY FOR THE USE OF THE SOFTWARE IF PURCHASED THROUGH AN AUTHORIZED THIRD PARTY.
10 CUSTOMER REMEDIES
YOUR EXCLUSIVE REMEDY (INCLUDING FOR WARRANTIES IMPLIED UNDER THE COMPETITION AND CONSUMER ACT 2010 (CTH)) SHALL BE, AT COMPANY OPTION, REPLACEMENT OF THE SOFTWARE OR REFUND OF PART OR ALL OF THE LICENSE FEE, IF ANY, PAID BY YOU TO THE COMPANY OR THE COMPANY’S AUTHORISED AGENT OR RESELLER FOR THE SOFTWARE.
THE COMPANY UNDERTAKES NO OBLIGATION TO MAINTAIN ANY PORTION OF THE SOFTWARE.
You agree to hold harmless, indemnify and defend the Company, its officers, employees, contractors, agents and suppliers against any loss (including consequential loss), damage, fine, or expense (including legal fees on an indemnity basis) arising out of or related to any act or omission of you, your officers, employees, contractors, or agents including, but not limited to:
(a) breach of this agreement or any other use or misuse of the Software contrary to the Company’s proprietary rights;
(b) breach of any applicable law in any relevant jurisdiction; or
(c) infringement of third party intellectual property rights.
13. TERM AND TERMINATION
This Agreement shall continue until terminated as provided herein.
13.2 Termination for breach
The Company may terminate your license immediately without notice to you for your failure to comply with any of the terms set forth in this Agreement.
13.3 Events on termination
Upon termination, you must immediately:
(a) destroy the Software, together with all copies, adaptations and merged portions thereof in any form; and
(b) pay all accrued charges or fees.
If the Software is labelled as an upgrade, you must be properly licensed to use a product identified by the Company as being eligible for the upgrade. A Software labelled as an upgrade replaces and/or supplements the product that formed the basis for your eligibility for the upgrade.
14.2 Agreement applies to upgrades
For the absence of doubt, all upgrades to the Software from time to time are subject to the then-current terms of this Agreement and you may use the resulting upgraded product only in accordance with the terms of this Agreement.
14.3 Single product packages
If the Software is an upgrade of a component of a package of software programs that you licensed as a single product, the Software may be used and transferred only as part of that single product package and may not be separated for use on more than one computer.
15. ASSIGNMENT AND NONASSIGNMENT
15.1 Single Licence
If you are an individual and this Agreement is for a single license, then this license is personal to you but you may assign your rights under this Agreement to a third party who agrees in writing to be bound to this Agreement prior to the assignment and provided that you transfer all copies of the Software, registration keys and/or codes, and related documentation to the third party and destroy any copies not transferred.
15.2 Multi-User Licence
(a) you are an individual and this Agreement is for a multiuser license; or
(b) you are a corporate entity,
you may not assign your rights under this Agreement without the prior written permission of the Company.
(a) If you are a corporate entity that merges with or is acquired by another corporate entity, then your rights under this Agreement shall be deemed to be temporarily assigned to the resulting entity of that merge or acquisition provided that you supply the Company with written notice not later than the date on which any public announcement of that merger or acquisition is made.
(b) Upon receipt of written notice, the Company shall have thirty (30) days to either accept or reject the assignment of rights.
16. EXPORT REQUIREMENTS
You may not export or reexport the Software or any copy or adaptation in violation of any applicable laws or regulations.
17. U.S. GOVERNMENT RESTRICTED RIGHTS
The Software and any accompanying documentation have been developed entirely at private expense. They are delivered and licensed as "commercial computer software." If this Software is acquired under the terms of a DOD or civilian agency contract, use, reproduction or disclosure of the Software by the Government is subject to the restrictions set forth in this License Agreement in accordance with 48 C.F.R. 227.7202 or 48 C.F.R. 12.212, respectively.
18. NO PARTNERSHIP
The Company shall not become or be deemed a partner or a joint venturer with you by reason of the provisions of this license. You are not authorized to take any action on behalf of the Company or to commit the Company in any way.
19. GOVERNING LAW AND FORUM
19.1 Action by you
You acknowledge and agree that in the event that you bring any legal action or claim against the Company under this Agreement or otherwise in relation to the Software:
(a) you must enter into mediation with the Company prior to commencing any 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,
and the costs of the mediation must be born equally by the parties; and
(b) this License Agreement shall be governed and construed in accordance with the laws of the State of Victoria, Australia, and you submit to the exclusive jurisdiction and forum of the courts of in Melbourne, Victoria, and courts competent to hear appeals from those courts.
19.2 Action by Company
In the event that you breach this Agreement or indicate your intention to breach this Agreement in any manner that violates or may violate the Company's intellectual property rights or may cause continuing or irreparable harm to the Company, the Company may seek relief in any court of competent jurisdiction and you submit to the non-exclusive jurisdiction and venue of such court as the Company may determine from time to time.
20. ENTIRE AGREEMENT
Unless otherwise expressly agreed in writing, this License Agreement constitutes the sole and exclusive agreement between you and Company with regard to the Software, and supersedes all prior agreements, whether oral or written, and other communications between the parties relating to the subject matter set forth herein.
21. NO WAIVER
The failure of either party hereto to enforce its rights with respect to a breach hereunder will not constitute a waiver of the right to enforce its rights with respect to the same or any other breach.
If any part of this Agreement is found to be invalid or unenforceable, that part of the Agreement is severed and the remainder of the Agreement continues in force.
23.1 Notices from the Company
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,
and such notice will be deemed to have been given upon the expiration of:
(d) 48 hours after mailing or posting (if sent by first class mail or prepaid post); or (e) 12 hours after sending (if sent by email).
23.2 Notices from you
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.
(a) The Company may amend this License Agreement at any time or from time to time by notifying you as aforesaid.
(b) Your use of the Software after any such notification shall constitute acceptance of any such amendment.
(c) You acknowledge and agree that it is your responsibility to review the Agreement from time to time 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.
If you have any questions regarding this License Agreement or if you wish to request any information from Company, please contact the firm at the email address below. All correspondence must be in English.
Email: email@example.com Copyright © 2009-2014 McQuillen Interactive Pty. Ltd. All rights reserved.