IMPORTANT-READ CAREFULLY: This End User License Agreement and Subscription Agreement (“the Agreement”) is a legal contract between you (either an individual person or a single legal entity, who will be referred to in this Agreement as “You”) and Avalias Pty Ltd for the Avalias software product that accompanies this Agreement, including any associated media, printed materials and electronic documentation (the “Software Product”). The Software Product also includes any software updates, add-on components, web services and/or supplements that Avalias may provide to You or make available to You after the date You obtain Your initial copy of the Software Product to the extent that such items are not accompanied by a separate license agreement or terms of use. By installing, copying, downloading, accessing or otherwise using the Software Product, You agree to be bound by the terms of this Agreement. If You do not agree to the terms of this Agreement, do not install, access or use the Software Product.
IMPORTANT NOTE: This Software Product may be used to reproduce, modify, publish and distribute materials. The Software Product is licensed to You under the condition that you reproduce, modify, publish or distribute materials for which You own the copyright, materials that are not copyrighted or materials which You are authorised or legally permitted to reproduce, modify, publish or distribute.
The Software Product is protected by intellectual property laws and treaties. The Software Product is licensed, not sold. The Software Product license remains valid only for the period for which annual subscription and maintenance fees have been prepaid.
This Section of the Agreement describes Your general rights to install and use the Software Product. The license rights described in this Section are subject to all other terms and conditions of this Agreement.
A. Installation and Use. The Software Product contains activation systems to guard against illegal copying. When you purchase a subscription to the software, Avalias will provide you with Software License Files that are valid for the supplied computer/s only. You may install and use the Software Product on the computer for which the Software Licenses have been issued only. The Server software may be installed on one (1) computer only. A Client Access License may be installed on one (1) computer only, and is valid for use only by Your employees. The Software is supported for approved hardware and software configurations only. You may have to reactivate the Software Product if you want to reinstall the Software Product, or if hardware configuration changes. Avalias may need to verify your identity to issue or reissue Software License Files. Avalias reserve the right to cease to provide technical support for older versions of the Software Product. This includes the ability to reinstall the Software Product and request new Software License Files for older versions of the Software Product. If the Software Product is no longer supported and a Software License File needs to be replaced for any reason, You will need to upgrade to a supported version of the software to have the Software License File replaced by Avalias. New subscriptions become active immediately on receipt of payment. Subscription renewals require payment prior to the expiry date to continue the subscription uninterrupted. Subscriptions can be activated through the software, either online or manually by phone or email.
B. Evaluation and Trial use. If you have been provided with a Trial License or Evaluation License, you may only use the Software Product for the duration of the Trial Period or Evaluation Period (as defined in the Software License File) bound by the conditions outlined in this Agreement. You are strictly prohibited from installing or using a Trial License of the Software for any commercial purpose, including but not limited to competitive research. If you have been provided with an Evaluation License, the conditions of this agreement together with the conditions of the Evaluation Agreement will apply.
C. Remote Installation. A system administrator may remotely install the Software Product on Devices within a private network, provided that the entity for whose benefit the network is operated accepts this Agreement for each such remote installation and is responsible for use of the Software Product within the permitted scope of this Agreement.
D. Permitted Uses and Restrictions. The Software Product is licensed for server use. If a Server Edition subscription has been purchased, and additional Client Access Licenses are obtained from Avalias, you may then install a copy of the Server Software on a storage Device, such as a network server, and allow individuals within Your business or enterprise to access and use the Software Product from other Devices over a private network; provided that You acquire and dedicate a license for the storage Device upon which the Software Product is installed and each separate Device from which the Software Product is accessed and used. A license or subscription for the Software Product may not be shared or used concurrently on different Devices without additional licenses or subscriptions. The Software Product is not licensed for use outside of your company or organisation, or to provide the Software Product to any other organisation for non-commercial use or commercial gain. You may not rent, lease, lend, redistribute or sublicense the Software Product.
E. Reproduction and Distribution. You may not reproduce or distribute copies of the Software and must retain all copyright and trademark notices on the existing copy that is accompanied by a copy of this Agreement, and provided You comply with the following distribution requirements. (1) You may not distribute or relicense or lease or provide services using the Software or use it for commercial gain, (2) The Software must retain Avalias’ name, logo or trademarks, (3) You indemnify, hold harmless, and defend Avalias from and against any claims or lawsuits, including attorneys’ fees, that arise from or result from the unauthorized use or distribution of the Software, (4) You do not remove or obscure any copyright, trademark or patent notices that appear on the Software as delivered to You, and (5) You otherwise comply with the terms of this Agreement.
F. Reservation of Rights. All rights not expressly granted are reserved by Avalias.
A. Limitations on Reverse Engineering, Decompilation, and Disassembly. You may not reverse engineer, decompile, or disassemble the Software Product, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
B. Separation of Component Parts. The Software Product is licensed as a single product. Its component parts may not be separated for use on more than one Device unless expressly permitted by this Agreement.
C. Trademarks. This Agreement does not grant You any rights in connection with any trademarks or service marks of Avalias.
D. No rental, leasing or commercial hosting. Except to the extent expressly permitted by this Agreement, You may not rent, lease, lend or provide commercial hosting services to third parties with the Software Product.
E. Support Services. If Avalias provides support or maintenance for the Software, Avalias reserves the right to charge You for such support/maintenance on an annual subscription, contract or Pay Per Incident basis. Your use of any support services is governed by the policies and programs described in the product “Help”, product “ReadMe”, or in other Avalias-provided materials. Any supplemental software code provided to You as part of any support services are considered part of the Software and subject to the terms and conditions of this Agreement. You acknowledge and agree that Licensor may use technical information You provide to Licensor as part of the support services for its business purposes, including for product support and development. Licensor will not utilize such technical information in a form that personally identifies You.
F. Audit Rights Avalias may audit the number of copies of the Software Product in use or possession by You.
G. Termination. Without prejudice to any other rights, Avalias may terminate this Agreement if You fail to comply with the terms and conditions of this Agreement. In such event, You must destroy all copies of the Software Product and all of its component parts.
All title and intellectual property rights in and to the Software Product (including but not limited to any images, photographs, animations, video, audio, music, text, and other features incorporated into the Software Product), the accompanying printed materials, and any copies of the Software Product are owned by Avalias. All title and intellectual property rights in and to the content that is not contained in the Software Product, but may be accessed through use of the Software Product, is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants You no rights to use such content. If this Software Product contains documentation that is provided only in electronic form, you may print one copy of such electronic documentation. You may not copy the printed materials accompanying the Software Product.
All Software Product provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995 is provided with the commercial license rights and restrictions described elsewhere herein.
You acknowledge that the Software Product is subject to U.S. export jurisdiction. You agree to comply with all applicable international and national laws that apply to the Software Product, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments.
If you acquired this Software Product in the United States, this Agreement is governed by the laws of the State of Delaware. If you acquired this Software Product in Australia, unless expressly prohibited by local law, this Agreement is governed by the laws in force in the state of New South Wales Australia; and, in respect of any dispute which may arise hereunder, you consent to the jurisdiction of Australian law. If this Software Product was acquired outside the United States or Australia, then local law may apply. Should you have any questions about this Agreement, or if you wish to contact Avalias for any reason, please contact the Avalias subsidiary serving your country, or write to: Avalias Customer Service Director/Suite 247, 813 Pacific Highway Chatswood, NSW 2067 Australia.
Avalias warrants that the Software Product will perform substantially in accordance with the accompanying materials for a period of ninety (90) days from the date of receipt. If an implied warranty or condition is created by your state/jurisdiction and federal or state/provincial law prohibits disclaimer of it, you also have an implied warranty or condition, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THIS LIMITED WARRANTY (NINETY DAYS). AS TO ANY DEFECTS DISCOVERED AFTER THE NINETY (90) DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. Some states/jurisdictions do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to you. Any supplements or updates to the SOFTWARE PRODUCT, including without limitation, any (if any) service packs or hot fixes provided to you after the expiration of the ninety (90) day Limited Warranty period are not covered by any warranty or condition, express, implied or statutory.
LIMITATION ON REMEDIES; NO CONSEQUENTIAL OR OTHER DAMAGES. Your exclusive remedy for any breach of this Limited Warranty is as set forth below. Except for any refund elected by Avalias, YOU ARE NOT ENTITLED TO ANY DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES, if the Software Product does not meet Avalias’ Warranty, and, to the maximum extent allowed by applicable law, even if any remedy fails of its essential purpose. The terms of Section 9 below (“Exclusion of Incidental, Consequential and Certain Other Damages”) are also incorporated into this Limited Warranty. Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. This Limited Warranty gives you specific legal rights. You may have others which vary from state/jurisdiction to state/jurisdiction.
YOUR EXCLUSIVE REMEDY. Avalias’ and its suppliers’ entire liability and your exclusive remedy shall be, at Avalias’ option from time to time exercised subject to applicable law, (a) return of the price paid (if any) for the Software Product, or (b) repair or replacement of the Software Product, that does not meet this Limited Warranty and that is returned to Avalias with a copy of your receipt. You will receive the remedy elected by Avalias without charge, except that you are responsible for any expenses you may incur (e.g. cost of shipping the Software Product to Avalias). This Limited Warranty is void if failure of the Software Product has resulted from accident, abuse, misapplication, abnormal use or a virus. Any replacement Software Product will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. Outside the United States or Australia, neither these remedies nor any product support services offered by Avalias are available without proof of purchase from an authorised international source. To exercise your remedy, contact: Avalias, Attn. Avalias Customer Service Director/Suite 247, 813 Pacific Highway Chatswood, NSW 2067 Australia, or the Avalias subsidiary or agent serving your country.
The Limited Warranty that appears above is the only express warranty made to you and is provided in lieu of any other express warranties (if any) created by any documentation or packaging. Except for the Limited Warranty and to the maximum extent permitted by applicable law, Avalias and its suppliers provide the Software Product and support services (if any) AS IS AND WITH ALL FAULTS, and hereby disclaim all other warranties and conditions, either express, implied or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence, all with regard to the Software Product, and the provision of or failure to provide support services. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE PRODUCT
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL AVALIAS OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF DATA, LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF AVALIAS OR ANY SUPPLIER, AND EVEN IF AVALIAS OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of Avalias and any of its suppliers under any provision of this Agreement and your exclusive remedy for all of the foregoing (except for any remedy of repair or replacement elected by Avalias with respect to any breach of the Limited Warranty) shall be limited to the greater of the amount actually paid by you for the SOFTWARE Product or U.S. fifty dollars ($50.00). The foregoing limitations, exclusions and disclaimers (including Sections 7, 8 and 9 above) shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
This Agreement (including any addendum or amendment to this Agreement which is included with the Software Product) is the entire agreement between you and Avalias relating to the Software Product and the support services (if any) and unless a supplementary Maintenance Agreement is signed by both parties in which case this will form part of the agreement, they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software Product or any other subject matter covered by this Agreement. To the extent the terms of any Avalias policies or programs for support services conflict with the terms of this Agreement, the terms of this Agreement shall control.