End User Licence Agreement
IMPORTANT READ CAREFULLY: This End User License Agreement (EULA) is a legal agreement between you (You) and Liveware Solutions Pty Limited ACN 118 516 519 (Liveware) concerning the Software and any Associated Materials.
YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING, COPYING, PAYING FOR OR OTHERWISE USING THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT INSTALL, COPY, OR USE THE SOFTWARE FOR ANY PURPOSE.
YOU ACKNOWLEDGE THAT THE SOFTWARE IS LICENSED AND NOT SOLD TO YOU AND OTHER THAN THOSE RIGHTS GRANTED TO YOU UNDER THIS EULA, LIVEWARE RESERVES ALL RIGHTS AND INTELLECTUAL PROPERTY RIGHTS IN THE SOFTWARE AND ASSOCIATED MATERIALS.
In this EULA, unless the context otherwise requires, capitalised words have the meanings given in the dictionary in clause 14.
2 Software Licence
2.1 Liveware grants to You a non-transferable, non-exclusive licence to install and use the Software and the Associated Materials subject to the terms of this EULA.
2.2 Subject to clause 2.3, the Licence allows You to:
(a) install and use the Software for Your internal business purposes only; and
2.3 The Licence prohibits You from:
(a) copying or reproducing the Software or the Associated Materials other than for back-up or disaster recovery purposes;
(b) modifying, maintaining, disassembling, or changing the Software in any way;
(c) reverse engineering, decompiling, deriving or attempting to derive source code from the Software;
(d) developing or attempting to develop a software product which is substantially similar to, or provides the same functionality as, the Software;
(e) selling, renting, leasing, sub-licensing or transferring Your rights to access or use the Software and the Associated Materials to any third party without Liveware’s prior written consent;
(f) allowing any third party to access or use the Software or the Associated Materials without Liveware’s prior written consent; and
(g) removing, obscuring or altering any copyright or other proprietary rights notice or trademarks affixed to, or contained within, the Software or the Associated Materials.
3 Updates and supplements
3.1 Liveware may release updates or supplements to the Software and the Associated Materials from time to time. Your right to access those updates or supplements may be subject to You or Your employer (if relevant) paying Liveware’s then subscription fee for the Software.
3.2 This EULA applies to updates or supplements to the Software and the Associated Materials that Liveware makes available to You, unless Liveware provides different terms along with the relevant update or supplement.
3.3 You acknowledge and agree that any obligation Liveware may have to support or offer support for an earlier version of the Software or the Associated Materials may cease after the release of an upgrade or supplement to the Software.
4 Third party software
4.1 The Software may contain third party software which is made available by Liveware to you subject to certain additional notices, terms or conditions required by the software owner and described in the Software. By agreeing to be bound by this EULA, you are also accepting those additional notices, terms or conditions, if any, set out in the Software.
5 Your acknowledgements
5.1 You acknowledge that Liveware:
(a) makes the Software and the Associated Materials available to You on an “as is” basis; and
(b) does not warrant that the Software or the Associated Materials is error-free or will operate without interruption.
5.2 You acknowledge and agree that You must not:
(a) reproduce or distribute to any third party a licence or activation code for the Software without the prior written consent of Liveware; and
(b) must not access or use the Software or the Associated Materials for any purposes other than the purposes expressly permitted by this EULA.
6 Intellectual Property Rights
6.1 You acknowledge that:
(a) Liveware owns or is the licensee of all rights and Intellectual Property Rights (including copyright) in and to the Software and all Associated Materials; and
(b) other than the Licence, nothing in this EULA confers on you any rights or Intellectual Property Rights in or to the Software or any Associated Materials.
6.2 You acknowledge that:
(a) the trademarks appearing in the Software or the Associated Materials are the registered or unregistered trademarks of Liveware or a third party (Trademark Owner);
(b) this EULA does not authorise you to copy or use the trademarks of any Trademark Owner.
7.1 Subject to clauses 9 and 10, Liveware warrants that:
(a) it has all rights necessary to grant the Licence to you in accordance with this EULA;
(b) during the Warranty Period, the Software will perform substantially in accordance with the Specifications when used with a hardware configuration approved by Liveware.
8 Implied warranties
8.1 To the extent permitted by Law, all other express or implied warranties, representations, terms and conditions other than those expressly contained in this EULA are excluded.
8.2 Where Law implies into this EULA any condition or warranty which cannot be excluded, then the liability of Liveware for any breach of such implied condition or warranty is limited, at Liveware’s absolute discretion, to one or more of the following:
(a) in the case of goods, any one or more of the following:
(1) the replacement of the goods or the supply of the equivalent goods;
(2) the repair of the goods;
(3) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(4) the payment of the cost of having the goods repaired; or
(b) in the case of services:
(1) the supplying of the services again; or
(2) the payment of the cost of having the services supplied again.
8.3 If applicable Law requires any product warranties with respect to the Software, all such warranties are limited in duration to the Warranty Period.
9 Exclusive remedy
SUBJECT TO CLAUSE 8, YOUR EXCLUSIVE REMEDY UNDER THIS EULA IN RELATION TO THE SOFTWARE OR ITS PERFORMANCE IS CONTAINED IN THIS CLAUSE 9.
9.1 Provided that you report in writing any alleged fault or defect in the Software to Liveware within the Warranty Period and subject to clause 9.2, Liveware agrees to take one or more of the following steps (at Liveware’s absolute option):
(a) supplying you with a replacement copy of the Software that substantially conforms to the Specifications;
(b) providing you with a replacement for defective media on which the Software is stored; or
(c) refund to you your purchase price for the Software.
9.2 You acknowledge and agree that Liveware has no responsibility to you if:
(a) the Software has been altered or corrupted in any way by You or any third party;
(b) the alleged fault or defect arises out of use of the Software with a hardware configuration other than as approved by Liveware.
9.3 Any such misuse, abuse, modification or misapplication of the Software will immediately void the warranty referred to in clause 7.1(b) above.
10 Limitation of Liability
10.1 Regardless of any other term of this EULA, Liveware will not be under any liability to you in respect of any indirect or consequential loss or damage (including, without limitation, for loss of business revenue, loss of profits, failure to realise expected profits or savings or loss of data) in connection with your use of the Software or Associated Materials or the arrangements contemplated by this EULA, whether the claim is based on breach of contract, negligence or any other cause of action.
11.1 You indemnify Liveware and its Associates (those indemnified) from and against all Claims suffered or incurred by those indemnified as a result of, or in connection with:
(a) a breach of any term of this EULA (including a warranty contained in this document) by you;
(b) the access to and use of the Software or the Associated Material by you; or
(c) any negligent, wilful or unlawful act or omission by you.
12.1 Without prejudice to any other rights Liveware may have, Liveware may terminate this EULA immediately and without notice to you if you fail to fully comply with the terms and conditions of this EULA.
12.2 Following termination of this EULA for any reason:
(a) the Licence will immediately terminate; and
(b) You must immediately destroy all copies of the Software and Associated Materials in Your possession or control or otherwise return or dispose of such materials in the manner directed by Liveware.
12.3 Termination of this EULA by Liveware will not release you from liability in respect of any prior breach of, or non-performance of, any obligation pursuant to this EULA.
13.1 The contents of this EULA constitute the entire agreement between the parties regarding the matters contemplated by this document and supersede any prior negotiations, representations, understandings or arrangements made between the parties, whether orally or in writing.
13.2 No provision of this EULA can be varied without the prior written consent of Liveware.
13.3 A right or remedy created by this EULA cannot be waived except in writing signed by the party entitled to that right. Delay by a party in exercising a right or remedy does not constitute a waiver of that right or remedy, nor does a waiver (either wholly or in part) by a party of a right operate as a subsequent waiver of the same right or of any other right of the party.
13.4 You must not assign this EULA or otherwise transfer the benefit of this EULA or a right, benefit or remedy under it, without Liveware’s prior written consent.
13.5 You acknowledge and agree that Liveware may sub-contract any of its obligations under this EULA to any third party.
13.6 If any clause or part of any clause in this EULA is in any way unenforceable, invalid or illegal, it is to be read down so as to be enforceable, valid and legal. If this is not possible, the clause (or where possible, the offending part) is to be severed from this EULA without affecting the enforceability, validity or legality of the remaining clauses (or parts of those clauses) which will continue in full force and effect.
13.7 The laws applicable in New South Wales, Australia govern this EULA. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia and any courts competent to hear appeals from those courts.
13.8 Clauses 6, 9, 10, 11, 13 and 14 survive the expiry or termination of this EULA.
Associates means a party’s officers, employees, agents, contractors and subcontractors.
Associated Materials means any user or operation manuals, printed materials or "online" or electronic documentation relating to the Software.
Claim means, in relation to a party, a demand, claim, action, proceeding, judgment, damage loss, cost, expense or liability incurred by or recovered by or against the party, however arising and whether present, unascertained, immediate, future or contingent and whether or not arising in relation to matters which occurred in the past.
Intellectual Property Rights means all trade marks, trade names, domain names, logos, patents, inventions, design rights, copyrights, circuit layout rights, and all similar rights in any part of the world (including know-how) including, where such rights are obtained or enhanced by registration, any registration of such rights and applications and rights to apply for such registrations.
Law means any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in Australia, whether made by a State, Territory, Commonwealth, or a local government, and includes the common law as applicable from time to time.
Licence means the licence referred to in clause 2.1.
Site means the site or location at which you first install the Software for private or commercial use.
Software means the [Liveware Payroll for Dynamics 365].
Specification means the specification for the Software published by Liveware from time to time, a copy of which is available from Liveware on request.
Warranty Period means the period of ninety (90) days commencing on the date of installation of the Software at the Site