End User Licensing Agreement (EULA)

digitAll Pty Ltd (ABN 55 083 570 585)

End User Licensing Agreement (EULA)

(Software Terms and Conditions)

Be sure to carefully read and understand all of the rights and restrictions set forth in this End User Licensing Agreement (“EULA”). This EULA is a binding legal agreement between the customer and digitAll Pty Ltd (ABN 55 083 570 585) (hereinafter “digitAll”) for the materials licensed by digitAll to the customer under this EULA, including (without limitation) any computer software and associated media (hereinafter the “Software”) and any printed materials and “online” or electronic documentation (hereinafter the “Documentation”). By installing, accessing and/or using the Software or Documentation, the customer agrees to be bound by the terms of this EULA. If the customer does not agree to the terms of this EULA, it should not install, attempt to use, or continue to use the Software or Documentation. This EULA is effective as of the date the customer installs, accesses and/or uses the Software and Documentation.

Definitions

The term ‘perpetual license’ is used to describe a license that is offered on a perpetual basis to a customer at a finite sale price as stipulated in a Customer Product Sales Agreement.

The term ‘periodic license’ is used to describe a license that is provided to the customer for a limited and specified term as stipulated in a Customer Services Agreement.

In the event of any conflict between this EULA and any Customer Product Sales Agreement or any Customer Services Agreement, the terms of this EULA will take precedence.

  1. Grant of License

The Software and Documentation are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software and Documentation are licensed, not sold.

Subject to the terms of this EULA and full payment of all licence fees in accordance with the customer’s Customer Product Sales Agreement or Customer Services Agreement (as applicable), digitAll hereby grants:

    1. Customers who have purchased a perpetual Software license under a Customer Product Sales Agreement, a non-exclusive, non-transferable, non-sublicensable, perpetual license to:

      1. install only one copy of the Software per license, on a single computer or server; and

      2. use the installed copy of the Software in accordance with the Documentation for the customer’s internal purposes only, and subject to any express usage restriction as set out in the Customer Product Sales Agreement.

    2. Customers who have purchased or leased a periodic software license under a Customer Services Agreement, a non-exclusive, non-transferable, non-sublicensable license for the limited and specified term as stipulated in a Customer Services Agreement to:

      1. install only one copy of the Software per license, on a single computer or server; and

      2. use the installed copy of the Software in accordance with the Documentation for the customer’s internal purposes only, and subject to any express usage restriction as set out in the Customer Services Agreement.

    3. All rights not expressly granted herein are reserved to digitAll.

    4. The customer acknowledges that the Software and Documentation are valuable trade secrets of digitAll. The customer must not:

      1. modify, adapt, alter, translate, make copies of, or create derivative works from, the Software or Documentation;

      2. sell, rent, lease, loan, transfer, sublicense, or otherwise convey the Software or Documentation to any third party without digitAll’s prior express written consent;

      3. transmit or communicate the Software over a network; or

      4. remove, alter or obscure any proprietary rights notices of digitAll on or within copies of the Software or Documentation.

  1. Price and Payment

In consideration for the licence granted to the customer in clause 1, the customer will pay digitAll the nonrefundable licence fees for the Software and Documentation as stipulated in the Customer Product Sales Agreement or Customer Services Agreement, and the associated purchase order in accordance with the payment terms therein.

  1. Delivery and Acceptance

digitAll will deliver the Software and Documentation to the customer by the date and in the manner specified in the Customer Product Sales Agreement, Customer Services Agreement or purchase form, as applicable. The Software and Documentation will be deemed irrevocably accepted upon delivery.

  1. Support Services

digitAll may provide the customer with support services related to the Software (“Support Services”), at its discretion. The terms of any Support Services including their costs will be stipulated in a Customer Services Agreement. Support Services, if any, are governed by the terms and conditions made known to the customer by digitAll, including the terms of the Customer Services Agreement. This EULA does not contain any obligation on digitAll to provide any Support Services.

  1. Replacement, Modification and/or Upgrades

digitAll may, from time to time, and for a fee, replace, modify or upgrade the Software. When accepted by the customer, any such replacement or modified Software code or upgrade to the Software will be considered part of the Software and subject to the terms of this EULA.

  1. Termination

    1. The customer may terminate this EULA at any time by destroying all its copies of the Software and Documentation and immediately notifying digitAll of this act.

    2. digitAll will have the right to terminate this EULA immediately upon written notice to the customer if the customer:

      1. materially breaches this EULA and fails to remedy such breach within 10 days after receipt of written notice from digitAll requesting the customer to remedy the breach; or

      2. goes into liquidation, has a receiver, receiver and manager, administrator or similar person appointed, enters into a scheme of arrangement with creditors or is unable to pay debts as and when they fall due.

    3. The customer’s right to use the Software and Documentation will immediately terminate in the event that digitAll terminates this EULA in accordance with clause 6(b). Upon termination, the customer is required to remove the Software from his/her computer and destroy any copies of the Software and Documentation in his/her possession.

  2. Copyright

The Software and Documentation provided under this EULA is licensed, not sold. digitAll (or its suppliers) retains all right, title and interest (including all copyright and other intellectual property rights) in and to the Software and Documentation (including but not limited to any algorithms, rules, information, inventions (whether patentable or not), data, formats and processes incorporated or embedded into the Software or Documentation), all accompanying printed materials and any copies of the Software. This EULA grants the customer no rights to use the Software and Documentation other than for the express purposes defined in this EULA. The customer must not reverse engineer, de-compile, disassemble, alter, duplicate or attempt to derive the source code for the Software.

  1. Export Restrictions

Where export regulations or laws apply, and to the extent they are applicable, the customer must not export, ship, transmit or re-export software in violation of those applicable laws or regulations.

  1. No Waiver

No waiver of any right under this EULA will be deemed effective unless contained in writing signed by a duly authorized representative of the party against whom the waiver is to be asserted, and no waiver of any past or present right arising from any breach or failure to perform will be deemed to be a waiver of any future rights arising out of this EULA. The failure of either party to enforce at any time, any of the provisions of this EULA will in no way be construed to be a waiver of such provision, nor in any way affect the validity of this EULA or any part thereof, or the right of the other party thereafter to enforce each and every provision.

  1. Warranties, disclaimers, and exclusive remedies

    1. digitAll and its suppliers provide the Software and Documentation “as is”. digitAll makes no warranty that the Software or Documentation will meet the customer’s requirements or that the Software or Documentation will be uninterrupted, timely or error free. To the maximum extent permitted by applicable law, digitAll and its suppliers exclude all representation, guarantees and warranties with respect to the Software, Documentation and any other services or materials provided under this EULA, whether express or implied, including warranties of merchantability, fitness for any particular purpose, title, non-infringement of third party rights, quiet enjoyment and accuracy.

    2. If any term, guarantee or similar right is imposed or implied into this EULA by any applicable law, and digitAll’s liability for breach of such term, guarantee or right cannot be excluded, digitAll’s liability is limited (where permissible by law), at digitAll’s option:

      1. in the case of goods, to the replacement or repair of the relevant goods, payment of the cost of replacing the goods or having them repaired; or

      2. in the case of services, to the resupply of the services or payment of the cost of having the services resupplied.

    3. In no event will digitAll or its suppliers be liable for any consequential, incidental, direct, indirect, special, punitive or other damages whatsoever (including, but not limited to):

      1. Loss of revenue

      2. Loss of profit

      3. Loss of use

      4. Loss of production

      5. Loss or denial of opportunity or bargain

      6. Loss of access to markets or custom

      7. Loss of goodwill

      8. Loss of reputation

      9. Damage to credit rating

      10. Loss of savings or anticipated savings

      11. Increased operating costs

      12. Increased financing costs

      13. Loss or corruption of data

      14. Any third party losses of the types referred to above,

arising out of or in any way related to the use of or inability to use the Software or Documentation. The above exclusions apply whether based on contract, tort, negligence, strict liability or otherwise, even if digitAll or any supplier has been advised of the possibility of such damages.

  1. Indemnity

    1. In using the Software and Documentation, the customer must:

      1. comply with all applicable laws, rules and regulations, including local, state, national and international laws, rules and regulations;

      2. not use the Software or Documentation to infringe any third party’s copyright, patent, trade mark, trade secret or other proprietary rights or rights of publicity or privacy; and

      3. not transmit any unlawful, harassing, libelous, defamatory, racist, indecent, abusive, violent, threatening, intimidating, harmful, vulgar, obscene, offensive or otherwise objectionable material of any kind or nature.

    2. The Customer must use commercially reasonable efforts to monitor its employees and consultants who access the Software and Documentation and agrees it is responsible for all actions and inactions of its employees, consultants and others who gain access to its Software and Documentation.

    3. digitAll will defend the customer from any third party claim, suit or proceeding alleging that the Software, unmodified and as originally delivered by digitAll, when used as permitted under this EULA and in accordance with the licence granted under this EULA, infringes any third-party Australian patent issued as at the date digitAll and the customer enter this EULA (“Claim”). digitAll will pay for such defence and for all settlement amounts agreed to by digitAll and the litigating parties or damages awarded by a court of competent jurisdiction up to the maximum total of the aggregate fees paid to digitAll by the customer.

    4. In order for digitAll to indemnify the customer under this clause 11, the customer must:

      1. notify digitAll promptly in writing of any Claim and no later than 30 days after the customer receives notice of the Claim;

      2. give digitAll sole control of the defense and settlement of any Claim; and

      3. give digitAll all information, authority and assistance digitAll reasonably needs to defend or settle the Claim.

    5. If digitAll believes or it is determined that the Software has infringed a third party’s intellectual property rights, digitAll may choose to either modify the Software to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for the continued use of the Software. If these alternatives are not commercially reasonable, digitAll may terminate the license for, and require return of, the Software and will refund any unused, prepaid fees the customer may have paid for the Software.

    6. digitAll will have no obligations under this clause 11 in relation to any Claims that arise from or in connection with:

      1. any use of the Software outside the scope of use identified in the Documentation;

      2. any modifications to the Software by any person other than digitAll;

      3. any information, design, specification, instruction, software, data, or material not furnished by digitAll;

      4. the customer’s actions prior to the commencement of this EULA;

      5. any combination of the Software with any hardware, software, or other materials other than the hardware and software platform specified by digitAll for the Software; or

      6. the use of any version of the Software other than the latest version made available to the customer by digitAll.

    7. This clause 11 states the customer’s sole and exclusive remedy, and digitAll’s entire liability, for infringement of third-party intellectual property rights arising from or related to the Software.

    8. If as a result of any breach of this EULA the customer or any of the customer’s employees or agents or any third party receive any profits or other rights or benefits, those profits, rights or other benefits belong to digitAll and are to be held on trust for digitAll by the customer or are payable by the customer to digitAll as if held on trust by the customer’s employees or agents or third party.

  2. Modifications and end of EULA

    1. digitAll may amend this EULA at any time by sending notification of such changes to the customer’s nominated email address.

    2. The customer will evidence its acceptance of any modified terms of this EULA if the customer continues to use the Software or Documentation after such amended terms have been sent. If the customer does not agree with any such amended terms it must notify digitAll within 30 days after receipt of such amended terms from digitAll and at the end of that 30 day period, the former version of this EULA will be deemed terminated (unless digitAll agrees to waive such amended terms to which the customer objects).

    3. digitAll reserves the right to modify the Software and Documentation for any reason or no reason by providing notice to the customer. digitAll will not be liable to the customer or any third party in the event that digitAll exercises its right to revise the terms of this EULA or to modify the Software and Documentation.

  3. Fees, taxes, and expenses
    The Customer must pay any sales, value-added, goods or services, or other similar taxes imposed by applicable law that digitAll must pay arising from any payment due to digitAll under this EULA or the provision of services to the customer, except for taxes in Australia based on digitAll’s declared Australian income. The customer must reimburse digitAll for all reasonable expenses related to providing any services (including installation services) under this EULA. Fees quoted in the Customer Product Agreement and/or Customer Services Agreement are exclusive of taxes, tariffs and expenses.

  4. Audit

    1. The customer must maintain complete and accurate written records of its use of the Software and Documentation and its other activities conducted under this EULA. digitAll will have the right to inspect the customer’s records in order to verify that the customer has:

      1. paid digitAll all amounts owed under this EULA;

      2. complied with any Software and Documentation usage restrictions; and

      3. otherwise complied with the terms of this EULA.

    2. digitAll will conduct its audit during normal business hours and will provide the customer at least 10 business days’ prior written notice. digitAll will use all reasonable endeavours to minimize any disruption to the customer’s normal business while conducting the audit. The audit will be conducted at digitAll’s expense, unless the audit reveals that the customer has underpaid digitAll by 5% or more or materially failed to comply with this EULA, in which case the customer will reimburse digitAll for all reasonable costs and expenses incurred by digitAll in conducting the audit. digitAll will conduct an audit no more than once in any consecutive period of 12 months, unless the audit shows that the customer has underpaid digitAll by 5% or more or that the customer has materially failed to comply with this EULA, in which case digitAll will have the right to conduct an additional audit within the same 12 month period.

  5. Confidential Information

    1. By virtue of this EULA, the parties may have access to information that is confidential to one another. Confidential information will include (without limitation) the Software and Documentation, technical information, the terms and pricing under this EULA, and all information clearly identified by a party as confidential (“Confidential Information”).

    2. A party’s Confidential Information will not include information that:

      1. is or becomes a part of the public knowledge or literature through no act or omission of the other party;

      2. was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party;

      3. is lawfully disclosed to the other party by a third party without restriction on disclosure; or

      4. is independently developed by the other party.

    3. The parties will hold each other’s Confidential Information in confidence during the term of this EULA and for a period of five (5) years after termination of this EULA. The parties agree, unless required by law, not to make each other’s Confidential Information available in any form to any third party for any purpose other than the implementation of this EULA. Such disclosures will only occur to employees or agents who are required to protect it against unauthorised disclosure. Notwithstanding the terms of this clause 15, the customer acknowledges and agrees that digitAll may use the customer’s Confidential Information for digitAll’s business purposes, including for software support and development. In using such Confidential Information, digitAll will not personally identify the customer except to the extent necessary in the provision of services to the customer.

  6. Jurisdiction

This EULA shall be governed by and construed in accordance with the laws of Victoria, Australia. Each party irrevocably and unconditionally submits to the non?exclusive jurisdiction of the courts exercising jurisdiction in Victoria, Australia and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.

  1. Severability

If any term of this EULA is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this EULA will remain in full force and effect.

  1. Entire Agreement

This EULA constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this EULA by any representations or promises not specifically stated herein.

  1. Force Majeure

Neither digitAll nor the customer shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. digitAll and the customer must both use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 90 days, either of digitAll or the customer may terminate this EULA by providing the other party with 30 days written notice. This clause does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or the customer’s obligation to pay all fees due and payable under this EULA, or under any Customer Product Sales Agreement or Customer Services Agreement.

  1. Dispute resolution and escalation

    1. If a difference or dispute (together called a “Dispute”) between the parties arises out of or relates to this EULA, or the breach, termination, validity or subject matter of it, or as to any claim in tort, in equity or pursuant to any domestic or international statute or law, then any party may give the other party a written notice of the Dispute adequately identifying and providing details of the Dispute (“Notice of Dispute”).

    2. Within ten  days after receiving a Notice of Dispute, the customer and digitAll will confer at least once to resolve the Dispute or to agree on methods of doing so.  All aspects of every such conference in respect of a Dispute, except the fact of its occurrence, will be confidential.

    3. If the Dispute is not resolved within the following 5 days (or such further period as the customer and digitAll may agree is appropriate), the parties agree to endeavour in good faith to settle the Dispute by mediation administered by the Australian Commercial Disputes Centre (“ACDC”) before having recourse to arbitration or litigation.

    4. The mediation will be conducted in accordance with ACDC Mediation Guidelines which set out the procedures to be adopted, the process of selection of the mediator and the costs involved, and the terms of those Guidelines are incorporated in this EULA.

    5. The mediation is to be conducted in Melbourne, Australia or such other place as agreed by the parties in dispute.

    6. If the mediation is not completed within 2 months of the date of the appointment of the mediator, or such other period as the parties in dispute may agree, the parties may exercise any other rights they may have.

    7. The costs and expenses of the mediation and any venue for the mediation must be shared equally between the parties in dispute or as otherwise agreed in writing.

    8. Nothing in this clause shall act as a waiver or preclude a party to a dispute seeking to enforce or protect its rights by way of an application to the courts for an injunctive remedy during or after the Dispute resolution process provided for in this clause.

  2. General provisions

This EULA shall not be assigned or otherwise transferred (by operation of law or otherwise) by the customer without the prior written consent of digitAll which will not be unreasonably withheld. It shall extend to and be binding upon the successors, legal representatives and valid assigns of the parties. digitAll is entitled to assign this EULA by providing written notice to the customer. digitAll may sub-contract its obligations under this EULA to any third party.

By accessing this software on the Internet or by installing the software on the customer’s computer or network system, the customer agrees to the terms of this EULA.

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