EULA.rtf

END USER LICENSE AGREEMENT

BY INSTALLING THIS SOFTWARE YOU ACCEPT THE TERMS OF THE SOFTWARE LICENCE AGREEMENT BELOW.

PLEASE READ THIS SOFTWARE LICENCE AGREEMENT CAREFULLY. PERMISSION TO USE THIS SOFTWARE IS CONDITIONAL ON YOU AGREEING TO THE TERMS OF THIS LICENCE. IF YOU USE THIS SOFTWARE YOU ARE AGREEING TO THE TERMS OF THIS LICENCE.

BY INSTALLING THIS SOFTWARE YOU ACCEPT THESE TERMS. ACCEPTANCE SHALL BIND YOU AND (IF APPLICABLE) YOUR EMPLOYEES TO THE TERMS OF THIS LICENCE.

BY PROCEEDING WITH INSTALLATION YOU CONFIRM THAT YOU HAVE READ ALL OF THE TERMS OF THIS AGREEMENT.

IF YOU DO NOT WISH TO ACCEPT THESE TERMS, PLEASE DO NOT PROCEED WITH INSTALLATION AND REMOVE THE INSTALLER FILES FROM YOUR COMPUTER. 

BACKGROUND TO THE LICENCE:

A.              A reference in this Licence to the “Software” means the software product identified above and a reference to the “Documentation” includes any documentation provided by TweakBit to use the software.

B.              You wish to use the Software.

C.              TweakBit Pty Ltd (“TweakBit”) grants you a non-transferable non-exclusive licence to use the Software on the terms and conditions of this Licence.

PROVISIONS OF THE LICENCE:

1.              LICENCE

1.1              In consideration of the payment by you of the applicable fee indicated on TweakBit’ web site (unless the software is free of charge which will also be indicated) in respect of the Software (the “Fee”) TweakBit grants to you a non-exclusive and non-transferable licence to:

(a)              install and use the Software and Documentation for your own personal or internal business purposes subject to the terms of this Licence;

(b)              make one copy of the Software and Documentation for backup and disaster recovery purposes only; and

(c)              use the Software and Documentation strictly in accordance with the provisions of this Licence and any documentation provided by TweakBit for that purpose.

TweakBit reserves all rights not expressly granted to you in this Licence.

1.2              The Software licensed to you may either be used by a single person personally on one or more computers. Only you can use this copy of the software. In order for someone else to use a copy of this software they must obtain their own individual and separate license.

1.3              You undertake:

(a)              to supervise and control the use of the Software in accordance with the terms of this Licence;

(b)               to ensure that (if applicable) your employees, sub-contractors and other agents who have authorised access to the Software are made aware of the terms of, and comply with, this Licence;

(c)               to not provide or otherwise make available the Software in any form to any person other than as permitted in this Licence; and

(d)               to ensure that any permitted copy of the Software and Documentation bears notice of TweakBit’ ownership of copyright.

2.              LICENCE FEES

2.1              The Licence and Fee (if any) are exclusive of taxes, duties and charges imposed or levied in Australia in connection with the supply and installation of the Software. Without limiting the foregoing, you shall be liable for any subsequent taxes, duties or charges in respect of the Software.

3.              GOODS AND SERVICES TAX
 

3.1              All amounts payable or other consideration provided in respect of supplies made in relation to this Licence are exclusive of GST (if any).  Where a supply is a taxable supply, all amounts payable or other consideration provided must be increased by the amount of GST payable in relation to the supply.

3.2              All GST must be paid at the time any payment to which it relates is payable (provided a tax invoice has been issued for the supply).  Where any GST payable is not referable to an actual payment, then it must be paid within ten (10) days of a tax invoice being issued by the party making the supply.

4.              MODIFICATIONS

4.1              You must not modify or alter the Software or merge all or any part of the Software with any other software without TweakBit’ written permission.  If the Software is modified or altered:

(a)              the costs associated with the modifications or alterations will be borne solely by you; and

(b)              you will fully indemnify TweakBit against all liability, cost and expenses (including legal costs) which may be incurred by TweakBit if such modifications or alterations infringe any intellectual property rights of a third person or otherwise cause TweakBit to suffer loss, damages or expense.

4.2              The Software as modified or altered remains the property of TweakBit in all respects, whether modified by you, TweakBit or a third party and whether or not authorised pursuant to this Licence. You must assign to TweakBit all intellectual property rights arising out of any modifications to the Software.

4.3              This Licence applies to the Software as modified or altered.

4.4              Other than as required by law. you may not reverse engineer, reverse assemble or reverse compile or directly or indirectly allow or cause a third party to reverse engineer, reverse assemble or reverse compile the whole or any party of the Software.

5.              SECURITY

5.1              You are responsible for the use, supervision, management and control of the Software and Documentation.

5.2              You must use reasonable endeavours to ensure that the Software is protected at all times from misuse, damage, destruction or any form of unauthorised use.

5.3              You must keep accurate records of use, copying, modification and disclosure of the Software.

6.              UPDATES AND NEW RELEASES

6.1              TweakBit may in its sole discretion notify you from time to time of any update or new release of the Software which provides functions equal to or better than the Software.

6.2              Where an update or new release is provided by TweakBit:

(a)              you must immediately install the update or new release and TweakBit is not liable for, and will (notwithstanding any other provision of this Licence) not accept any liability for any previous version or release; and

(b)              you may be required to enter into a new licence for the new update or release and this Licence (and any previous licence for the Software) will be terminated immediately upon your acceptance of those terms.  In the event that no new licence is supplied, this Licence will continue to apply in all respects to the update or new release which shall be deemed to be the Software for the purpose of this Licence.

7.              WARRANTIES

7.1              TweakBit warrants that:

(a)              it has authority to grant the rights granted in this Licence; and

(b)              the Software will operate in conformity with the Documentation in all material respects.

7.2              TWEAKBIT WILL NOT BE LIABLE UNDER THIS CLAUSE TO THE EXTENT THAT A DEFECT IS CAUSED BY YOUR USE OF THE SOFTWARE OTHER THAN IN ACCORDANCE WITH THIS LICENCE, INCLUDING THE FAILURE BY YOU OR A THIRD PARTY TO MAINTAIN THE OPERATING ENVIRONMENT DESIGNATED IN THE DOCUMENTATION OR TO OTHERWISE USE THE SOFTWARE IN ACCORDANCE WITH ANY SPECIFICATIONS ISSUED BY TWEAKBIT.

7.3              YOU ACKNOWLEDGE THAT THE SOFTWARE IS DISTRIBUTED AS IS AND TWEAKBIT IN NO WAY GUARANTEES THAT IT WILL OPERATE UNINTERRUPTED OR BE ERROR FREE.  YOU ACKNOWLEDGE THAT THE EXISTENCE OF ANY ERRORS DOES NOT CONSTITUTE A BREACH OF THIS LICENCE.

7.4              YOU FURTHER ACKNOWLEDGE THAT GOOD DATA PROCESSING PROCEDURES DICTATE THAT ANY SOFTWARE BE THOROUGHLY TESTED WITH NON-CRITICAL DATA BEFORE RELYING ON IT. YOU ASSUME THE ENTIRE RISK OF USING THE SOFTWARE AND DOCUMENTATION. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS LICENSE.

7.5              YOU ACKNOWLEDGE THAT YOU HAVE EXERCISED YOUR INDEPENDENT JUDGEMENT IN LICENSING THE SOFTWARE AND HAVE NOT RELIED ON ANY REPRESENTATION MADE BY TWEAKBIT WHICH HAS NOT BEEN STATED EXPRESSLY IN THIS LICENCE OR UPON ANY DESCRIPTIONS OR ILLUSTRATIONS OR SPECIFICATIONS CONTAINED IN ANY DOCUMENT INCLUDING PUBLICITY MATERIAL PRODUCED BY TWEAKBIT.

7.6              OTHER THAN IMPLIED BY LAW (INCLUDING BUT NOT LIMITED TO THE AUSTRALIAN CONSUMER LAW), THE WARRANTIES IN THIS CLAUSE REPRESENT ALL OF THE WARRANTIES GIVEN BY TWEAKBIT AND NO TERM OR WARRANTY WILL BE IMPLIED.

8.              CONFIDENTIALITY

8.1              A party may not, without the prior written approval of the other party, disclose the other party’s Confidential Information (as defined below). A party will not be in breach of this Licence in circumstances where it is legally compelled to disclose the other party’s Confidential Information.

8.2              Each party must take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this Licence, do not disclose the other party’s Confidential Information.

8.3              A party may disclose the other party’s Confidential Information:

(a)              to its related companies, solicitors, auditors, insurers and accountants who require information for the purpose of this Licence; or

(b)              if required to disclose the information by law  or the rules of any Stock Exchange.

8.4              This clause will survive the termination of this Licence.

8.5              Software uses Google Analytics to collect information to improve the products and features users use most often and to help solve problems. Google Analytics collects software usage data only. This information is collected ONLY during software execution and does not include any personally identifiable details.

8.6              Software may use a script from HSDG to collect anonymized usage data. More details on how this data is collected and used are available in our Privacy Policy.

8.7              See Privacy Policy for more information on how we handle the data we collect. By accepting this EULA and using our software products you confirm that you have also read and accepted the Privacy Policy, which forms part of this License Agreement.

9.              INTELLECTUAL PROPERTY RIGHTS

              You acknowledge that the Software and Documentation are the subject of intellectual property rights including copyright (the “Rights”). You shall not during or any time after the termination of this Licence permit any act (including without limitation copying the Software except as permitted in this Licence) which infringes those Rights. For the avoidance of doubt this Licence does not give you any right to use any trademarks of TweakBit associated with the Software or Documentation. You will fully indemnify TweakBit against all liability, cost and expenses (including legal costs) which may be incurred by TweakBit as a result of your breach of the provisions of this clause 10.

10.              LIABILITY

10.1              SUBJECT TO CLAUSE 10.2, TWEAKBIT’ TOTAL LIABILITY TO YOU IN RESPECT OF ALL CLAIMS ARISING OUT OF OR IN ANY WAY RELATING TO THIS LICENCE OR THE SOFTWARE INCLUDING CLAIMS UNDER ANY INDEMNITY OR FOR NEGLIGENCE SHALL BE STRICTLY LIMITED TO THE FEE PAID UNDER THIS LICENCE.

10.2              ANY DAMAGES RESULTING FROM A BREACH OF THIS LICENCE BY EITHER PARTY IS LIMITED TO ACTUAL DAMAGES INCURRED BY THE PARTY CLAIMING DAMAGES.  NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL LOSS OR DAMAGE INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION, LOST PROFITS OR FOR PUNITIVE OR EXEMPLARY DAMAGES EVEN IF TWEAKBIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.3              IF ANY CONDITION OR WARRANTY IS IMPLIED INTO THIS AGREEMENT BY LAW AND CANNOT BE EXCLUDED, THE LIABILITY OF TWEAKBIT FOR BREACH OF THE CONDITION OR WARRANTY IS LIMITED TO ONE OR MORE OF THE FOLLOWING AT TWEAKBIT’ OPTION:

                       (I)   IN THE CASE OF GOODS;

(1)              ...