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IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE INSTALLING THE SOFTWARE: This licence agreement (Licence) is a legal agreement between you (Licensee or you) and Aconex Limited of 96 Flinders Street, Melbourne VIC 3000 (Licensor or we) for this software product (Software), which includes computer software, the data structures supplied with it, any printed, online or electronic documentation (Documentation).
THIS SOFTWARE WILL ONLY WORK WITH THE MINIMUM HARDWARE AND SOFTWARE CONFIGURATION SPECIFICIED IN THE DOCUMENTATION. BY CLICKING ON THE "ACCEPT" BUTTON BELOW YOU AGREE TO THE TERMS OF THIS LICENCE WHICH WILL BIND YOU AND YOUR EMPLOYEES. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU AND YOU MUST DISCONTINUE INSTALLATION OF THE SOFTWARE NOW BY CLICKING ON THE "REJECT" BUTTON BELOW. IN THIS CASE YOU MUST RETURN THE MEDIUM ON WHICH THE SOFTWARE IS STORED AND ALL ACCOMPANYING DOCUMENTATION TO THE ACONEX OFFICE CLOSEST TO YOU. IF YOU PURCHASED THIS SOFTWARE FROM AN AUTHORISED THIRD-PARTY RETAILER, PLEASE NOTE THAT THE RETAILER HAS THE RIGHT TO ENTER INTO THIS LICENCE ON OUR BEHALF.
1. GRANT AND SCOPE OF LICENCE
1.1 In consideration of the payment of the specified licence fee (which is part of the price the User pays its supplier for this package), the Licensor hereby grants to you a non-exclusive, non-transferable licence to use the Software and the Documentation on the terms of this Licence. Where no licence fee is specified or charged by Aconex, the licence fee is deemed to be one US dollar for the purposes of clause 7.
1.2 You may:
(a) install and use the Software for your internal business purposes only, either (as agreed between the parties):
(i) on one CPU if the Licence is a single-user licence or the Software is for single use; or
(ii) if the Licence is a multi-user or network licence, for the number of concurrent users agreed between you and us;
(b) only transfer the Software from one computer to another with Aconex’s written consent and provided it is used on only one computer at any one time;
(c) make up to 2 copies of the Software for back-up purposes only, provided that this is necessary for the activities permitted by condition 2.1;
(d) receive and use any supplementary software code or update of the Software incorporating "patches" and corrections of errors as may be provided by the Licensor from time to time; and
(e) use any Documentation in support of the use permitted under condition 1.1 and make copies of the Documentation as are reasonably necessary for its lawful use.
2. LICENSEE'S UNDERTAKINGS
2.1 Except as expressly set out in this Licence or as permitted by any local law, you undertake:
(a) not to copy the Software or Documentation except where such copying is incidental to normal use of the Software or where it is necessary for the purpose of back-up or operational security;
(b) not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software or Documentation;
(c) not to make alterations to, or modifications of, the whole or any part of the Software nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs;
(d) not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Software nor attempt to do any such things except to the extent that such actions are permitted by law.
(e) to keep all copies of the Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Software;
(f) to supervise and control use of the Software and ensure that the Software is used by your employees and representatives in accordance with the terms of this Licence;
(g) to replace the current version of the Software with any updated or upgraded version or new release provided by the Licensor under the terms of this Licence immediately on receipt of such version or release;
(h) to include the copyright notice of the Licensor on all entire and partial copies of the Software in any form;
(i) not to provide, or otherwise make available, the Software in any form, in whole or in part (including, but not limited to, program listings, object and source program listings, object code and source code) to any person other than your employees without prior written consent from the Licensor.
2.2 You must permit the Licensor and his representatives, at all reasonable times and on reasonable advance notice, to inspect and have access to any premises, and to the computer equipment located there, at which the Software or the Documentation is being kept or used, and any records kept pursuant to this Licence, for the purpose of ensuring that you are complying with the terms of this Licence.
The Licensor's technical support staff will endeavour, solely on a reasonable endeavours basis, to answer by email any queries which you, as the original registered purchaser, may have regarding the use or application of the Software during the Warranty Period. For email support please email firstname.lastname@example.org.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 You acknowledge that all intellectual property rights in the Software and the Documentation throughout the world belong to the Licensor, that rights in the Software are licensed (not sold) to you, and that you have no rights in, or to, the Software or the Documentation other than the right to use them in accordance with the terms of this Licence.
4.2 You acknowledge that you have no right to have access to the Software in source code form or in unlocked coding or with comments.
4.3 The integrity of this Software may be protected by technical protection measures (TPM) so that the intellectual property rights, including copyright, in the Software of the Licensor are not misappropriated. You must not attempt in any way to remove or circumvent any such TPM, nor to apply, manufacture for sale, hire, import, distribute, sell, nor let, offer, advertise or expose for sale or hire, nor have in your possession for private or commercial purposes, any means whose sole intended purpose is to facilitate the unauthorised removal or circumvention of such TPM.
4.4 Notwithstanding anything to the contrary in this Licence, the Licensor and retains the exclusive right to own, use and disclose, in the course of its business, all feedback provided you with respect to the Software.
5. CONFIDENTIALITY OF USERNAME AND PASSWORD
5.1 You are responsible for the confidentiality of the username and password used by your personnel to access the Software and you agree not to give any username or password to any third party.
6.1 The Licensor warrants that:
(a) the medium on which the Software is stored and distributed is (at the time it is supplied), and will be for the period of 90 days after that time (Warranty Period), free from defects in design, material and workmanship under normal use. If a defect in the medium occurs during the Warranty Period, the Licensor will replace it free of charge if you return it to the Licensor with proof of purchase and (so far as you are able) a documented example of such defect or error; and
(b) during the Warranty Period, the Software will, when properly used, perform substantially in accordance with the functions described in the Documentation (provided that the Software is properly used on the computer and with the operating system for which it was designed as referred to in the accompanying documentation), and the Documentation correctly describes the operation of the Software in all material respects.
6.2 You acknowledge that the Software has not been developed to meet your individual requirements and that it is therefore your responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet your requirements.
6.3 You acknowledge that the Software may not be free of bugs or errors and you agree that the existence of any minor errors shall not constitute a breach of this Licence.
6.4 If, within the Warranty Period, you notify the Licensor in writing of any defect or fault in the Software in consequence of which it fails to perform substantially in accordance with the Documentation, and such defect or fault does not result from you having amended the Software or used it in contravention of the terms of this Licence, the Licensor will, at its sole option, repair the Software, replace the Software or refund you the price paid for the Software, provided that you make available all information that may be necessary to assist the Licensor in resolving the defect or fault, including sufficient information to enable the Licensor to recreate the defect or fault.
6.5 The Licensor's obligation under condition 6.4 is subject to compliance by you with the terms of condition 2.1(g)
7. LICENSOR'S LIABILITY
7.1 Nothing in this Licence shall limit or exclude the liability of either party for death or personal injury resulting from negligence, fraud or fraudulent misrepresentation.
7.2 Subject to condition 7.1, the Licensor's liability for losses suffered by you arising out of or in connection with this agreement (including any liability for the acts or omissions of its employees, agents and subcontractors), whether arising in contract, tort (including negligence), misrepresentation or otherwise, shall be limited as follows, even if such losses result from the Licensor's deliberate personal repudiatory breach of this agreement:
(a) loss of income;
(b) loss of business profits or contracts;
(c) business interruption;
(d) loss of the use of money or anticipated savings;
(e) loss of information;
(f) loss of opportunity, goodwill or reputation;
(g) loss of, damage to or corruption of data; or
(h) any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise;
provided that this condition 7.2 shall not prevent claims for loss of or damage to your tangible property that fall within the terms of condition 5 or any other claims for direct financial loss that are not excluded by any of categories (a) to (h) inclusive of this condition 7.2.
7.3 Subject to condition 7.1 and condition 7.2, the Licensor's maximum aggregate liability under or in connection with this Licence, or any collateral contract, whether in contract, tort (including negligence) or otherwise, shall be limited to the licence fee.
7.4 Subject to condition 7.1, condition 7.2 and condition 7.3, the Licensor's liability for infringement of third party intellectual property rights shall be limited to breaches of rights subsisting in Australia, the U.K. and the U.S..
7.5 This Licence sets out the full extent of the Licensor's obligations and liabilities in respect of the supply of the Software and Documentation. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on the Licensor except as specifically stated in this Licence. Any condition, warranty, representation or other term concerning the supply of the Software and Documentation which might otherwise be implied into, or incorporated in, this Licence, or any collateral contract, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law.
8.1 The Licensor may terminate this Licence immediately by written notice to you if:
(a) You commit a material or persistent breach of this Licence which you fail to remedy (if remediable) within 14 days after the service on you of written notice requiring you to do so; or
(b) You become insolvent or unable to pay your debts (within the meaning of section 123 of the Insolvency Act 1986), enter into liquidation, whether voluntary or compulsory (other than for reasons of bona fide amalgamation or reconstruction), pass a resolution for its winding-up, have a receiver or administrator manager, trustee, liquidator or similar officer appointed over the whole or any part of your assets, make any composition or arrangement with your creditors or take or suffer any similar action in consequence of your debt, or become unable to pay your debts (within the meaning of section 123 of the Insolvency Act 1986).
8.2 Upon termination for any reason:
(a) all rights granted to you under this Licence shall cease;
(b) you must cease all activities authorised by this Licence;
(c) you must immediately pay to the Licensor any sums due to the Licensor under this Licence; and
(d) you must immediately delete or remove the Software from all computer equipment in your possession and immediately destroy or return to the Licensor (at the Licensor's option) all copies of the Software then in your possession, custody or control and, in the case of destruction, certify to the Licensor that you have done so.
9. TRANSFER OF RIGHTS AND OBLIGATIONS
9.1 This Licence is binding on you and us and on our respective successors and assigns.
9.2 You may not transfer, assign, charge or otherwise dispose of this Licence, or any of your rights or obligations arising under it, without our prior written consent.
9.3 The Licensor may transfer, assign, charge, sub-contract or otherwise dispose of this Licence, or any of his rights or obligations arising under it, at any time during the term of the Licence.
All notices given by you to the Licensor must be sent by email to email@example.com. The Licensor may give notice to you at either the e-mail or postal address you provided to it when purchasing the Software. Notice will be deemed received and properly served 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
11. EVENTS OUTSIDE OF LICENSOR'S CONTROL
11.1 The Licensor will not be liable or responsible for any failure to perform, or delay in performance of, any of his obligations under this Licence that is caused by an event outside his reasonable control (Force Majeure Event).
11.2 A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:
(a) strikes, lock-outs or other industrial action;
(b) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
(c) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
(d) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
(e) impossibility of the use of public or private telecommunications networks;
(f) the acts, decrees, legislation, regulations or restrictions of any government.
11.3 The Licensor's performance under this Licence is deemed to be suspended for the period that the Force Majeure Event continues, and he will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under this Licence may be performed despite the Force Majeure Event.
12.1 If the Licensor fails, at any time during the term of this Licence, to insist on strict performance of any of your obligations under this Licence, or if the Licensor fails to exercise any of the rights or remedies to which he is entitled under this Licence, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
12.2 A waiver by the Licensor of any default shall not constitute a waiver of any subsequent default.
12.3 No waiver by the Licensor of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.
If any of the terms of this Licence are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
14. ENTIRE AGREEMENT
14.1 This Licence and any document expressly referred to in it represents the entire agreement between us in relation to the licensing of the Software and Documentation and supersedes any prior agreement, understanding or arrangement between us, whether oral or in writing.
14.2 We each acknowledge that, in entering into this Licence, neither of us has relied on any representation, undertaking or promise given by the other or implied from anything said or written in negotiations between us before entering into this Licence except as expressly stated in this Licence.
14.3 Neither of us shall have any remedy in respect of any untrue statement made by the other, whether orally or in writing, prior to the date we entered into this Licence (unless such untrue statement was made fraudulently) and the other party's only remedy shall be for breach of contract as provided in this Licence.
15. UNITED STATES EXPORT CONTROLS
15.1 The Software uses software and technology that may be subject to United States export controls. You agree that you will not, directly or indirectly, export or re-export, or knowingly permit the export or re-export of, the Software or any technical information about the Software to any country for which such export or re-export is restricted by any applicable U.S. regulation or statue, without the prior written consent, if required, of the government entity that has jurisdiction over such export or re-export. Licensor make no representation that the Software is appropriate or available for use in locations other than Australia, the U.K. and the U.S.. If you use the Software from outside of the U.S., you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. A failure to comply with this condition will be regarded as a material breach incapable of remedy.
16. LAW AND JURISDICTION
This Licence, its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Victoria, Australia and submitted to the non-exclusive jurisdiction of the courts in Victoria, Australia.
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