This End User License Agreement (the “EULA”) between the customer (“Customer”, “You” or “Your”) and Barrington Group Australia Pty Limited (“Licensor”, “We”, “Us” or “Our”) governs the download, installation, and use of the software and/or program (the “Software”) whether embedded, associated with Smartek Equipment or provided separately to You. The Capitalized terms not defined herein shall have the same meaning as defined in the System Agreement between Customer and Licensor.
PLEASE READ THIS EULA CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE SOFTWARE AND ACCOMPANYING DOCUMENTATION. BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, OR SMARTEK EQUIPMENT YOU ARE INDICATING YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS AND THIS EULA IS DEEMED EFFECTIVE BETWEEN YOU AND US.
1. License Grant.
Except as otherwise specified in the EULA, We grant You a non-exclusive, non-transferable, non-distributable, non-assignable, non-sub-licensable license to install and use the Software solely within Your internal business organization located in the country You are billed (the “Territory”) and in accordance with the terms and conditions of this EULA.
You may allow or authorise Your employees, agents or third parties to use the Software solely for the purpose of providing services to You. You shall be responsible for Your employees, agents or third parties.
2. License Limitations.
You will not, and will not authorise and/or permit anyone or third party to:
(a) use the Software for any purpose other than in connection with providing services to You or in a manner inconsistent with the documentations of the Software;
(b) sublicense, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Software or use the Software in any commercial hosted or service bureau environment;
(c) reverse engineer, decompile, disassemble or attempt to discover the source code for or any trade secrets related to the Software, except and only to the extent that such activity is expressly permitted by applicable law;
(d) adapt, modify, alter, translate or create any derivative works of the Software;
(e) remove, alter or obscure any copyright or proprietary notice and other rights notice on the Software;
(f) disclose the results of any benchmarking testing, comparative or competitive analyses of Software to any third party.
(g) circumvent or attempt to circumvent any methods employed by Us to control access to the components, features or functions of the Software; or
(h) use the Software for any purposes prohibited by law.
You will not copy the Software except that one copy of any separate software component of the Software may be made to the extent that such copying is necessary for Your own backup purposes.
4. Open Source.
The Software may contain open-source components. In the event that this EULA conflicts with the requirements of one or more open-source license with respect to the use of the corresponding open-source components, You agree to be bound by the applicable open-source license terms and conditions.
The Software and documentation are licensed, not sold. All the title, ownership, copyright and all other intellectual property rights in the Software, documentation and all modifications and derivative works thereof are sole and exclusive property of “Barringtons” or its supplier(s) or licensor(s), if any. Any rights not expressly granted in this EULA are reserved to “Barringtons”.
Any Order Document shall be subject to this EULA and will only be binding upon Us when accepted by Us or upon delivery of Software to You.
You will maintain accurate records of the use of Software since beginning of the license term till twenty-four (24) months after its termination. During this period, We or any third-party auditor will audit Your use of the Software to verify Your compliance with this EULA. You will reasonably cooperate Us and any third-party auditor during such audit. If the audit reveals either underpayment of the Software fees payable by You for the period audited, or that You have materially failed to maintain accurate records of Software use, You will promptly reimburse Us for all reasonable costs of the audit.
8. Software Support Services.
We will not provide any support or maintenance services to You unless You separately purchase any Software support services, or it is otherwise specified in any applicable Documentation. Any Software support services will be subject to Our Software support agreement terms and conditions.
NEITHER WE NOR OUR LICENSOR(S) MAKE ANY WARRANTY OR REPRESENTATION OF ANY KIND WHATSOEVER INCLUDING, WITHOUT LIMITATION, SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, LACK OF VIRUSES OR OTHER HARMFUL COMPONENTS AND ACCURACY OF THE INFORMATION WITH REGARDS TO THE SOFTWARE, SERVICES AND RELATED GRAPHICS CONTAINED WITHIN THE SOFTWARE FOR ANY PURPOSE. WE HEREBY DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS WITH REGARD TO THE SOFTWARE, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, TITLE, LEGAL STATUS, AND NON-INFRINGEMENT.
We warrant that each Software will substantially conform to the applicable Documentation for a period of 3 months (the “Warranty Period”) from the date of delivery to You of (i) Smartek Equipment if it is provided as embedded, associated with Smartek Equipment; or (ii) the Software if it is provided separately to You.
We will, at Our own expense, either replace the Software or correct the defects reported by You in writing during the Warranty Period. If We are unable to correct the defect or replace the Software, We will refund to You the amount paid by You for that Software and terminate the license for that Software.
The warranty in this EULA will not apply if the Software: (a) has not been properly installed and used at any time in accordance with the applicable documentation; (b) has been modified or added to by any person other than Our authorized representative, or (c) was provided on a no charge basis.
YOUR SOLE AND EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY FOR ANY BREACH OF WARRANTY IS AS STATED IN THIS SECTION ONLY.
10. Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY LAW IN NO EVENT SHALL LICENSOR, IT’S SUPPLIER(S) OR LICENSOR(S) BE LIABLE FOR ANY, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR ANY LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF REVENUE, LOSS OF GOODWILL OR BUSINESS INTERRUPTION ARISING OUT OF OR IN ANY WAY CONNECTION WITH THE USE, PERFORMANCE OR ACCURACY OF THE SOFTWARE OR WITH THE DELAY OR INABILITY TO USE THE SOFTWARE, OR THE WITH WHICH THE SOFTWARE IS ASSOCIATED, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
In no event, the Licensor, it’s supplier(s) or licensor(s) liability under this EULA will, in either contract, tort, strict liability, or otherwise, exceed the value of insurance held by “Barringtons”. If the Software is provided on a no charge basis, “Barringtons” shall not incur any liability of any kind under this EULA.
You may not bring any claim after twelve (12) months from the cause of action arose.
We will defend You against any third-party claim that the Software infringes any IP right under the laws of the Territory for the license (“Infringement Claim”) and indemnify from the resulting costs and damages finally awarded by a court of competent jurisdiction or agreed pursuant to settlement; provided that You: (i) promptly notify Us in writing of such Infringement Claim; (ii) allow Us sole control over the defense for the claim, any settlement and negotiations; and (iii) reasonably cooperate in response to Our requests for assistance. You may not settle or compromise any Infringement Claim without Our prior written consent.
For any Software being subject to any Infringement Claim, We will: (a) procure the rights necessary to make continued use of the affected Software; (b) replace or modify the affected Software to make it non-infringing; or (c) terminate the license to the affected Software and discontinue the related support services, with refund calculated on pro-rata depreciation basis.
We will have no obligation with respect to any claim if You: (a) combine the Software with non-Licensor products or any open-source software or freeware technology; (b) use the Software for a purpose or in a manner not designed; (c) use of any older version of the Software when use of a newer version would have avoided the infringement; (d) modify the Software without Licensor’s express written approval; or (e) use any Software provided on a no charge or trial basis.
YOUR SOLE AND EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY FOR ANY INFRINGEMENT CLAIMS IS AS STATED IN THIS SECTION ONLY.
12. Term and Termination.
This EULA is effective until terminated. We may may, in addition to any other remedies available to Us, terminate this EULA immediately if you breach any of your obligations under this EULA.
Upon termination, You will destroy the Software, keys and its copies in Your possession or control and certify such destruction in writing to Us. Any provision will survive any termination of this EULA if by its nature and context it is intended to survive.
“Confidential Information” means all non-public (i) information provided by the disclosing party (the “Discloser”) to the receiving party (the “Recipient”) which are marked as “confidential”, “Proprietary” or the like; or (ii) information which are disclosed in such circumstances that a reasonable person should presume it to be confidential or proprietary.
Receipient may not use Confidential Information of Discloser, except for the purpose of this EULA. Recipient will not disclose to any third party the Confidential Information of Discloser, except only to the employees or contractors of Recipient on a need-to-know basis and subject to a duty of confidentiality no less restrictive than Recipient’s duty hereunder. Recipient will protect Confidential Information from unauthorized use, access, or disclosure with same degree of care as Recipient protects its own confidential or proprietary information of a similar nature.
Recipient obligations with respect to any Confidential Information will terminate if it: (a) was already known to Recipient at the time of disclosure; (b) was disclosed to Recipient by a third party without any confidentiality restrictions; (c) is, or has become, generally available to the public through no fault of Recipient; or (d) was independently developed by Recipient without any reference to, or use of, Discloser’s Confidential Information.
Recipient will be allowed to disclose Confidential Information to the extent it is compelled by any law, regulation or order of a court, provided that the Recipient promptly notifies the Discloser in writing and cooperates with Discloser, at Discloser’s request and expense, to limit the scope of such required disclosure.
14. Data Privacy.
You agree and acknowledge that We may process technical and related information about Your use of the Software including, but not limited to, IP address, hardware identification, and non-personally identifiable Software usage statistics or reports to facilitate the provisioning of updates, support, invoicing or online services and may transfer such information within Licensor group of companies from time to time. To the extent that this information constitutes personal data, each party shall comply at all times with its obligations under applicable data protection legislation.
15. Governing Law.
The performance of the parties to this EULA, and the relationship between the parties, is subject to the applicable laws of the New South Wales. Licensor reserves the right to initiate court proceedings against You at any other court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods as well as conflict of laws provisions are explicitly excluded.
You shall not assign, transfer or delegate any right or obligation herein or this EULA without any prior written approval from Us. Any unapproved attempt of assignment, transfer or delegation by You will be void. We may assign, transfer or subcontract any or all rights or obligations herein and this EULA without any restriction. This EULA will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.
Any notice delivered by Us to You under this EULA will be delivered via mail, email or fax. If You want to reach-out to Us, please send Your correspondence to:
Name: Barrington Group Australia Pty Ltd
Address: Suite B1, 4 Columbia Circuit
Norwest NSW 2153
Attention of: Glenn Lynch
- (a) This EULA constitutes the entire agreement between You and Us concerning the license relating to the Software, and supersedes and replaces any prior agreement, written or oral; (b) This EULA may only be amended by written amendment signed by Our authorised representative; (c) If any part of this EULA is held invalid or unenforceable, the remaining portions will remain in full force and effect; (d) A waiver by either party of any term or condition of this EULA or any failure to enforce any right herein, in any instance, will not waive such term or condition or any subsequent right thereof; (e) You agree that the Software will not be shipped, transferred, exported or re-exported into any country or used in any manner prohibited by any applicable export laws or regulations and this EULA shall automatically terminate upon failure by You to comply with such export laws or regulations; (f) The headings are for convenience and are not to be used in interpreting any provision in this EULA; and (g) This EULA shall not be enforced by any person or entity who is not a party to this EULA, except Our licensors are third party beneficiaries of this EULA and shall have the right to enforce the terms and conditions herein.