End user agreement for SWiSHmax
END USER LICENCE AGREEMENT
IMPORTANT: THIS SOFTWARE END USER LICENCE AGREEMENT ("EULA") IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR, IF PURCHASED OR OTHERWISE ACQUIRED BY OR FOR AN ENTITY, AN ENTITY) AND SWiSHzone.com PTY LTD ABN 52 086 041 812 OF SYDNEY, AUSTRALIA ("SWiSHzone"). READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE SOFTWARE. IT PROVIDES A LICENCE TO USE THE SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS AND LIMITS. BY INSTALLING AND USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, THEN DO NOT INSTALL THE SOFTWARE AND RETURN THE SOFTWARE PROMPTLY TO YOUR PLACE OF PURCHASE FOR A FULL REFUND.
THIS EULA SHALL APPLY ONLY TO THE SOFTWARE SUPPLIED BY SWiSHzone REGARDLESS OF WHETHER OTHER SOFTWARE IS REFERRED TO OR DESCRIBED IN THIS EULA.
"Education Version" means a version of the Software supplied by SWiSHzone on the basis that it is for use by students and faculty of educational institutions, only.
"Not For Resale (NFR) Version" means a version of the Software supplied by SWiSHzone on the basis that it is to be used to review and evaluate the Software, only.
"Software" means only the SWiSHzone software program(s) and third party software programs, in each case, supplied by SWiSHzone herewith, and corresponding documentation, associated media, printed materials, and online or electronic documentation.
"Trial Version" means a version of the Software supplied by SWiSHzone on the basis that it is to be used only to review, demonstrate and evaluate the Software for a limited time period. The Trial Version may have limited features, may lack the ability for the end-user to save the end product, and will cease operating after a predetermined amount of time due to an internal mechanism within the Trial Version.
2. GRANT OF LICENCE
The licences granted in this clause 2 are granted on the terms and conditions set out in this EULA:
(a) Subject to clause 2(b), you may:
(i) install and use the Software on a single computer; or
(ii) install and store the Software on a storage device, such as a network server, used only to install the Software on your other computers over an internal network, provided you have a licence for each separate computer on which the Software is installed and run.
Except as otherwise provided in clause 2(b), a licence for the Software may not be shared, installed or used concurrently on different computers.
(b) Portable or Home Computer Use for Software Requiring Mandatory Product Activation. For Software requiring Mandatory Production Activation, in addition to the single copy of the Software permitted in clause 2(a), the primary user of the computer on which the Software is installed may make a second copy of the Software and install it on either a portable computer or a computer located at his or her home for his or her exclusive use, provided that:
(i) the second copy of the Software on the portable or home computer (i) is not used at the same time as the copy of the Software on the primary computer and (ii) is used by the primary user solely as allowed for such version or edition (such as for educational use only);
(ii) the second copy of the Software is not installed or used after the time such user is no longer the primary user of the primary computer on which the Software is installed; and
(iii) the Software was not licensed under a volume discount.
(c) In the event the Software is distributed along with other SWiSHzone software products as part of a suite of products (collectively, the "Suite"), the licence of the Suite is licensed as a single product and none of the products in the Suite, including the Software, may be separated for installation or use on more than one computer.
(d) You may make copies of the Software in machine-readable form solely for backup purposes. You must reproduce on any such copies all copyright notices and any other proprietary legends on the original copy of the Software. You may not sell or transfer any copy of the Software made for backup purposes.
(e) You agree that SWiSHzone may audit your use of the Software for compliance with this EULA at any time, upon reasonable notice. In the event that such audit reveals any use of the Software by you other than in full compliance with this EULA, you shall reimburse SWiSHzone for all reasonable expenses related to such audit in addition to any other liabilities you may incur as a result of such non-compliance.
(f) Unless otherwise set forth in the documentation relating to such code and/or the Software or in a separate agreement between you and SWiSHzone, you may modify the source code form of those portions of such software programs that are identified as sample code, sample application code, or components (each, a "Sample Application Code") in the accompanying documentation solely for the purposes of designing, developing and testing websites and website applications developed using SWiSHzone software programs; provided, however, you are permitted to copy and distribute the Sample Application Code (modified or unmodified) only if all of the following conditions are met:
(i) you distribute the compiled object Sample Application Code with your application;
(ii) you do not include the Sample Application Code in any product or application designed for website development; and
(iii) you do not use SWiSHzone's name, logos or other SWiSHzone trademarks to market your application.
You agree to indemnify, hold harmless and defend SWiSHzone from and against any loss, damage, claims or lawsuits, including attorney's fees that arise or result from the use or distribution of your application.
(g) Your licence rights under this EULA are non-exclusive.
(h) Mandatory Product Activation. The licence rights granted under this Agreement may be limited to the first 30 days after you first install the Software unless you supply information required to activate your licensed copy in the manner described during the setup sequence of the Software. You may need to activate the Software through the use of the Internet or telephone; toll or other charges may apply. There are technological measures in this Software that are designed to prevent unlicensed or illegal use of the Software. You agree that SWiSHzone may use those measures and you agree to follow any requirements regarding such technological measures. You may also need to reactivate the Software if you modify your computer hardware or alter the Software. Product activation is based on the exchange of information between your computer and SWiSHzone.
3. LICENCE RESTRICTIONS
(a) Other than as provided in clause 2, you must not make or distribute copies of the Software, or electronically transfer the Software from one computer to another or over a network.
(b) You must not alter, merge, modify, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form.
(c) Unless otherwise provided in this EULA, you must not rent, lease, or sublicense the Software.
(d) Other than with respect to a Trial Version or a Not For Resale Version of the Software, you may permanently transfer all of your rights under this EULA only as part of a sale or transfer, provided: you retain no copies, you transfer all of the Software (including all component parts, the media and printed materials, any upgrades, this EULA, the serial numbers, and, if applicable, all other software products provided together with the Software), and the recipient agrees to the terms of this EULA. If the Software is an upgrade, any transfer must include all prior versions of the Software from which you are upgrading. If the copy of the Software is licensed as part of the whole Suite, the Software shall be transferred only with and as part of the sale or transfer of the whole Suite, and not separately. You may retain no copies of the Software. You may not sell or transfer any Software purchased under a volume discount. You may not sell or transfer any Trial Version or Not For Resale Version of the Software.
(e) Unless otherwise provided in this EULA, you must not modify the Software or create derivative works based upon the Software.
(f) Education Versions may not be used for, or distributed to any party for, any non-educational purpose, including any commercial purpose.
(g) Unless otherwise provided in this EULA, you must not:
(i) in the aggregate, install or use more than one copy of the Trial Version of the Software;
(ii) download the Trial Version of the Software under more than one username;
(iii) alter the contents of a hard drive or computer system to enable the use of the Trial Version of the Software for an aggregate period in excess of the trial period for one licence to such Trial Version;
(iv) disclose the results of software performance benchmarks obtained using the Trial Version to any third party without SWiSHzone's prior written consent; or
(v) use the Trial Version of the Software for a purpose other than the sole purpose of determining whether to purchase a licence to a commercial or education version of the software; provided, however, notwithstanding the foregoing, you are strictly prohibited from installing or using the Trial Version of the Software for any commercial training purpose.
(h) You may only use the Not for Resale Version of the Software to review and evaluate the Software.
(i) You must not export the Software into any country prohibited by the United States Export Administration Act and the regulations under that Act.
(j) You may receive the Software in more than one medium but you must only install or use one medium. Regardless of the number of media you receive, you may use only the medium that is appropriate for the server or computer on which the Software is to be installed.
(k) You may receive the Software in more than one platform but you must only install or use one platform.
(l) You must not use the Software to develop any application having the same primary function as the Software.
(m) If you fail to comply with this EULA, SWiSHzone may terminate the licence and you must destroy all copies of the Software (with all other rights of both parties and all other provisions of this EULA surviving any such termination).
If this copy of the Software is an upgrade from an earlier version of the Software, it is provided to you on a licence exchange basis. You agree by your installation and use of such copy of the Software to voluntarily terminate your earlier EULA and that you will not continue to use the earlier version of the Software or transfer it to another person or entity unless such transfer is pursuant to clause 3.
5. PRIOR SAME VERSION LICENCE
If this copy of the Software is licensed as part of a Suite, and you have a prior licence to the same version of the Software, and the Suite was licensed to you with a discount based, in whole or in part, on your prior licence to the same version, the Software is provided to you on a licence exchange basis. You agree by your installation and use of this copy of the Software to voluntarily terminate your EULA with respect to such prior licence and that you will not continue to install or use such prior licence of the Software or transfer it to another person or entity.
The foregoing licence gives you limited permission to use the Software. SWiSHzone and its suppliers retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Software (as an independent work and as an underlying work serving as a basis for any application you may develop), goodwill in and to the Software and all copies thereof. All rights not specifically granted in this EULA, including Australian and International copyrights, are reserved by SWiSHzone and its suppliers.
7. LIMITED WARRANTY AND DISCLAIMER
(a) Except with respect to any Sample Application Code, Trial Version and Not For Resale Version of the Software, SWiSHzone warrants that, for a period of 90 days from the date of delivery (as evidenced by a copy of your receipt):
(i) when used with a recommended hardware configuration, the Software will perform in substantial conformance with the documentation supplied with the Software; and
(ii) the physical media on which the Software is furnished will be free from defects in materials and workmanship under normal use.
(b) TO THE MAXIMUM EXTENT PERMITTED BY LAW, SWiSHzone PROVIDES NO REMEDIES OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, FOR ANY SAMPLE APPLICATION CODE, TRIAL VERSION AND THE NOT FOR RESALE VERSION OF THE SOFTWARE. ANY SAMPLE APPLICATION CODE, TRIAL VERSION AND THE NOT FOR RESALE VERSION OF THE SOFTWARE ARE PROVIDED "AS IS".
(c) EXCEPT AS SET FORTH IN THE FOREGOING LIMITED WARRANTY WITH RESPECT TO SOFTWARE OTHER THAN ANY SAMPLE APPLICATION CODE, TRIAL VERSION AND NOT FOR RESALE VERSION AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, SWiSHzone AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OF NON-INFRINGEMENT AND TITLE OR QUIET ENJOYMENT. SWISHZONE DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. IF YOU ARE A UNITED STATES CUSTOMER, NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UCC WILL BE CONFERRED ON YOU UNLESS EXPRESSLY GRANTED HEREIN. THE SOFTWARE IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. SWISHZONE SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.
(d) IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO 90 DAYS FROM THE DATE OF DELIVERY.
(e) No oral or written information or advice given by SWiSHzone, its dealers, distributors, agents or employees shall create a warranty or in any way increase the scope of ANY warranty provided in the EULA.
(f) (USA only) SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
(g) (Australia only) Where any legislation implies in this EULA any term, and that legislation avoids or prohibits provisions in a contract excluding or modifying such a term, such term shall be deemed to be included in this EULA. However, the liability of SWiSHzone for any breach of such term shall be limited as set out in clauses 7(d) above and 8 below.
8. Exclusive Remedy
Your exclusive remedy under the preceding is to return the Software to the place you acquired it, with a copy of your receipt and a description of the problem. Provided that any non-compliance with the above warranty is reported in writing to SWiSHzone no more than ninety (90) days following delivery to you, SWiSHzone will use reasonable commercial efforts to supply you with a replacement copy of the Software that substantially conforms to the documentation, provide a replacement for defective media, or refund to you your purchase price for the Software, at its option. SWiSHzone shall have no responsibility if the Software has been altered in any way, if the media has been damaged by misuse, accident, abuse, modification or misapplication, or if the failure arises out of use of the Software with other than a recommended hardware configuration. Any such misuse, accident, abuse, modification or misapplication of the Software will void the warranty above. THIS REMEDY IS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU FOR BREACH OF EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SOFTWARE AND RELATED DOCUMENTATION.
9. LIMITATION OF LIABILITY
(a) TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER SWiSHzone NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF SWiSHzone OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
(b) SWiSHzone's TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE GREATER OF AUD100 OR THE AMOUNT PAID BY YOU FOR THE SOFTWARE THAT CAUSED SUCH DAMAGE.
(c) (USA only) SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
(d) THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS EULA.
10. BASIS OF BARGAIN
The Limited Warranty and Disclaimer, Exclusive Remedies and Limited Liability set forth above are fundamental elements of the basis of the agreement between SWiSHzone and you. SWiSHzone would not be able to provide the Software on an economic basis without such limitations. Such Limited Warranty and Disclaimer, Exclusive Remedies and Limited Liability inure to the benefit of SWiSHzone's licensors.
11. U.S. GOVERNMENT RESTRICTED RIGHTS LEGEND
This Software and the documentation are provided with "RESTRICTED RIGHTS" applicable to private and public licences alike. Without limiting the foregoing, use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in this EULA and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013 (c)(1)(ii)(OCT 1988), FAR 12.212(a)(1995), FAR 52.227-19, or FAR 52.227-14, as applicable. Manufacturer: SWiSHzone, The Basement, 33 Ewell St., Balmain, NSW, 2041, Australia.
12. (Outside of the USA) Consumer End Users Only
The limitations or exclusions of warranties and liability contained in this EULA do not affect or prejudice the statutory rights of a consumer, i.e., a person acquiring goods otherwise than in the course of a business.
The limitations or exclusions of warranties, remedies or liability contained in this EULA shall apply to you only to the extent such limitations or exclusions are permitted under the laws of the jurisdiction where you are located.
This EULA shall be governed by the internal laws of the State of New South Wales, Australia, without giving effect to principles of conflict of laws. You hereby consent to the exclusive jurisdiction and venue of the state courts exercising jurisdiction in that State to resolve any disputes arising under this EULA. In each case this EULA shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods.
This EULA contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Software licensed hereunder shall be of no effect. The failure or delay of SWiSHzone to exercise any of its rights under this EULA or upon any breach of this EULA shall not be deemed a waiver of those rights or of the breach.
No SWiSHzone dealer, agent or employee is authorised to make any amendment to this EULA.
If any provision of this EULA shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this EULA will remain in full force and effect.
All questions concerning this EULA shall be directed to: SWiSHzone, The Basement, 33 Ewell St., Balmain, NSW, 2041, Australia.
SWiSHzone and other trademarks contained in the Software are trademarks or registered trademarks of SWiSHzone or are otherwise enforceable in Australia and the United States and/or other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. This EULA does not authorise you to use SWiSHzone's or its licensors' names or any of their respective trademarks.