Outright Purchase Software Agreement 2017-R0
IMPORTANT – YOU SHOULD READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SOFTWARE. BY (i) PROCEEDING WITH AN ORDER FOR SOFTWARE, AND/OR INSTALLATION OR UPGRADE OF THE SOFTWARE, AFTER RECEIVING A COPY OF THIS DOCUMENT; OR (ii) CLICKING "I Accept the Terms of the Licence Agreement," DURING INSTALLATION OF THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO ABIDE BY ITS TERMS AND CONDITIONS.
This is a software licence agreement ('Licence Agreement') between you ('you' or 'Licensee') and CyTrack Intelligence Systems Pty Ltd ('CyTrack') for use of the software provided by CyTrack ('Software'). This is not an agreement for sale of the Software. This is a licence agreement only. Please read the terms and conditions of this Licence Agreement before using the Software. By verifying and/or using the Software, you are agreeing to be legally bound by this Licence Agreement and the terms and conditions set out below.
By entering into this Licence Agreement, you also agree to be bound by CyTrack's Terms and Conditions. You may also order additional support services, which will be subject to CyTrack's Support Services Terms and Conditions.
Collection and delivery
- CyTrack will make available a download, disc or other media containing files for installing the Software on your hardware ('Software Media'). You may, at your option, collect the Software Media from CyTrack's premises, or arrange freight on your own behalf. Alternatively, freight will be arranged on your behalf by CyTrack and charged to you at the applicable rate.
- In consideration of the Licencee's payment of the relevant fees to CyTrack, CyTrack grants the Licensee a limited, non-exclusive, non-transferable licence to use the Software, program copies, documentation, and related materials (collectively, the 'Licenced Material') solely in accordance with the terms and conditions set out in this Licence Agreement. It does not give the Licensee the right to own the Licenced Material.
- You acknowledge and agree that as between the parties, CyTrack retains the title to its Licenced Material, and all intellectual or industrial property rights therein, whether or not made or authorised by CyTrack. All rights not expressly granted to the Licensee are reserved and retained by CyTrack.
- CyTrack may make available updates, modifications, enhancements or new releases to the Software from time to time ('Software Updates'). CyTrack may, in its absolute discretion, provide specific Software Updates to the Licensee from time to time. Otherwise, the Licensee must purchase a subscription in accordance with clause 10 to receive Software Updates. Any Software Updates provided by CyTrack to the Licensee form part of the 'Licensed Material' and 'Software'.
Bundled software licence information
- The Licensee might also receive Software produced by other companies as part of a 'bundle' of utility Software ('Bundled Software'). This Software might have been included in the CyTrack product to enhance productivity. Bundled Software is provided under licence from the original manufacturer. In the absence of a discrete licence from the manufacturer to the customer, the Licensee is permitted to use the Bundled Software under the same terms as this licence from CyTrack. The Licensee agrees to be legally bound by the provisions of this licence for use of any and all Bundled Software included with the Software that does not have its own licence included in its packaging. Under the provisions of this Licence Agreement, 'Bundled Software' is included in the terms 'Licenced Material' and 'Software'.
- This Software is designed to be used on a computer system and/or network. You may only:
- use the Software in the format specified in your purchase documents;
- access the version of the Software provided by CyTrack under this Licence Agreement on one (1) network.
- You must not:
- copy, resell, distribute or transfer all or any part of the Software or Licenced Material except as permitted under the Copyright Act 1968 (Cth) ('Copyright Act');
- provide access to the Software or Licenced Material to any person other than your personnel who reasonably require access to the Software and Licenced Material;
- sub-license or sub-contract any of its rights under this Licence Agreement without the written consent of CyTrack, which may by withheld in its absolute discretion;
- attempt circumvent usage limits or quotas or avoid incurring fees;
- merge all or any part of any software contained in or provided in connection with the Software with any other software without CyTrack's prior written permission;
- commercially exploit the Software;
- make any part of the Software available to any third party;
- distribute or transmit any part of the Software by any means.
- link to, frame or mirror any part of the Software without CyTrack's written consent;
- attempt to disassemble, decompile or otherwise reverse engineer or reverse compile the Software, except as permitted under the Copyright Act;
- alter, customise, modify, tamper with or create derivative works of the Software or Licenced Material;
- remove, obliterate or alter any proprietary notice on the Software or Licenced Material; or
- use or encourage, promote, facilitate or instruct others to use Software or any other software provided in connection with Software for any illegal, harmful or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful or offensive.
- You may make one (1) copy of the Software solely for system back-up, emergency start-up, disaster recovery and security purposes. Such copy must be externally labelled as Licenced Material, and must contain all proprietary notices.
- The Licensee shall notify CyTrack immediately if the Licensee becomes aware of any unauthorised use of the whole or part of the Software by any person. Multiple copies of the Software in excess of the licenced number of users is a violation of this licence, whether on a single or multiple networks.
- You may order a subscription to receive Software Updates on payment of the relevant fee subject to CyTrack's Support Services Terms and Conditions.
- You may order support services subject to CyTrack's Support Services Terms and Conditions.
- This Licence Agreement applies to any other services provided by CyTrack in connection with the Software, including deployment, installation, configuration or other services.
Effective date and termination
- The licence is effective on the date the Licensee acquires the Licenced Material, and will remain in force until terminated in accordance with its terms.
- This Licence Agreement will automatically terminate if and when the Licensee has destroyed all Licenced Material provided by CyTrack.
- CyTrack may terminate this Licence Agreement immediately on written notice on the happening of one of the following events:
- your unremediable breach or threatened unremediable breach of any of your obligations under this Licence Agreement or CyTrack's Terms and Conditions;
- your unremedied breach or threatened breach of any of your obligations under this Licence Agreement or CyTrack's Terms and Conditions after having been given 30 days written notice to remedy such breach;
- the occurrence of any of the following events with regard to your affairs:
- any step is taken to enter into any scheme of arrangement with creditors,
- any step is taken to appoint a receiver or manager, a liquidator, an administrator or other like person,
- the suspension of debts generally, or
- you are deemed insolvent for the purposes of any provision of the Corporations Act 2001 (Cth) or corresponding applicable laws;
- your merger or takeover by another party.
- Upon termination of this Licence Agreement for any reason, you must immediately cease using the Software and Licenced Materials and destroy or return to CyTrack all copies of the Software and Licenced Materials in your possession or control.
Disclaimer on warranties
- The Licensee expressly acknowledges and agrees that the use of the Licenced Material is at its own risk. The Licenced Material is furnished 'as is' and without warranty of any kind. CyTrack does not warrant that the Licenced Material or its functions will meet the Licensee's requirements or that the operation of the Software will be uninterrupted. The entire risk as to the use of the Software shall be borne by the Licensee.
- CyTrack strongly recommends You regularly backup Your data to an independent storage facility to guard against catastrophic loss of data. CyTrack shall not be responsible for any costs, loss or damage associated with loss of data, recreating data, substitute equipment or programs, claims by third parties or similar costs.
- CyTrack will not be liable, in any respect, for any claim, liability, cost, loss or damage resulting from or arising directly or indirectly from:
- any changes or works of the kind described in clause 23 of the CyTrack Terms and Conditions carried out without CyTrack's prior agreement;
- any changes to the Software made by or on behalf of the Licensee, whether or not carried out with CyTrack's prior agreement;
- any breach by the Licensee of this Agreement, the CyTrack Terms and Conditions or any other agreement with CyTrack; or
- any negligence on the part of the Licensee.
- By using the Software the Licensee agrees to accept all risk associated with its use and agrees to indemnify CyTrack against all and any recourse by any third party. CyTrack and/or its associates, employees and agents will not be held responsible for any loss, whether direct, indirect or consequential, real or imagined, past, present or future, resulting from the use of the Software by the Licensee or by any person or entity related to the Licensee including their customers.
- In no case shall the liability of CyTrack exceed the amount of the purchase price of the Software.
- To the fullest extent permitted by law, CyTrack's excludes:
- any term, condition or warranty that may otherwise be implied by custom, law or statute;
- any liability for loss caused by the negligence of CyTrack; and
- any liability for any loss or damage suffered by a party or any other person that is indirect or consequential, including but not limited to loss of revenue, loss of income, loss of business, loss of profits, loss of goodwill or credit, loss of business reputation, loss of use, loss of time, loss of interest, damage to credit rating or loss or denial of opportunity.
Some countries and states do not allow the exclusion of implied warranties, terms or conditions, so the above exclusions may not apply to you. In that case the following statements apply to the fullest extent permitted by law:
If CyTrack is liable for a breach of a term, condition or warranty described above, its liability is, to the fullest extent permitted by law, limited to any one or more of the following as CyTrack determines in its absolute discretion:
- in relation to goods:
- replacing or repairing the goods;
- supplying an equivalent item of the goods;
- paying the cost of replacing or repairing the goods; or
- paying the cost of acquiring or hiring equivalent goods; and
- in relation to services:
- the re-supply of the services; or
- the payment of the cost of having the services re-supplied.
Privacy opt in/opt out and spamming
- The Licensee acknowledges that CyTrack may collect and store information relating to customer service, Software performance and Licensee preferences. Some of the information CyTrack collects may be personal data. CyTrack warrants that only authorised personnel will have access to such information stored or processed using the Software. CyTrack uses the information it collects for staff training, customer services, upgrading Software, Software revisions and to improve Software quality and delivery.
- CyTrack supports the right to privacy and does not condone the use of spamming as a technique for direct marketing. CyTrack does not use spamming techniques to solicit information. The Licensee may provide written notice to CyTrack opting out of any marketing/customer database. Upon receipt of such written notice, CyTrack will remove the Licensee from the relevant marketing/customer database within 5 business days.
Governing law and severability
- This Licence Agreement shall be governed and construed in accordance with the laws of Australia and the State of Queensland. Furthermore it is understood that this Licence Agreement shall be treated as though it were executed in Queensland and the parties agree that any action relating to this Licence Agreement shall be instituted and prosecuted in the courts of the competent jurisdiction of the State of Queensland.
- If for any reason, a court of competent jurisdiction finds any provision or portion of this Licence Agreement unlawful, void, or for any reason unenforceable, it shall be deleted and shall in no way affect the enforceability of any other provisions of this Licence Agreement.
- Should you have any questions regarding this Licence Agreement, you may call your local office available at www.cytrack.com or write to CyTrack.
- proceeding with an order for Software and/or installation or upgrade of the software, after receiving a copy of this document or a link to this document available on CyTrack's website; or
- clicking "I Accept the Terms of the Licence Agreement," during installation of the Software,
you acknowledge that you have read and understand this Licence Agreement and agree to abide by its terms and conditions.
- Except as expressly stated, this Licence Agreement is the complete and exclusive agreement between us concerning the Software and supersedes all prior agreements, proposals or communications, verbal or written between us relating to the subject matter in this Licence Agreement.
- CyTrack reserves the right to amend, revise or replace this Licence Agreement from time to time by posting a notification via the Software. By:
- continuing to use the Software after receiving such a notification; or
- clicking "I accept the terms of the amended Licence Agreement,"
you acknowledge that you have read and understand the amended Licence Agreement and agree to abide by its terms and conditions. Amendments, revisions and replacements will be effective sixty (60) days after posting the notification, or on a later effective date specified in the notification, unless this Licence Agreement is terminated earlier.