END USER LICENSE AGREEMENT
For Timetabling Solutions desktop software
PLEASE READ THIS LICENCE CAREFULLY
The terms and conditions and the relationship between you (either an individual person or a legal entity) and Timetabling Solutions Pty Ltd (Licensor) shall be governed by this Licence Agreement. By installing, copying, downloading, accessing or otherwise using the software supplied with this License you agree to be bound by the terms and conditions of this Licence Agreement. If you do not agree to the terms of this Licence Agreement, do not install access or use the Software. You must return the Software to your place of purchase for a full refund.
Activation Codes means a four digit code provided by Timetabling Solutions that allows full access to the software installed on that machine.
Confidential Information means any information and materials, in any form and including information relating to Intellectual Property Rights, which comes into the possession of either party which belongs to or relates to or is about the other party pursuant to or as a result of or in performance of this License Agreement, including without limitation, data, know how, drawings, designs, inventions, techniques, processes, analysis, strategies, research and development data, production know how and in the case of the Licensor, including the Software.
Installation Support means assistance given by Timetabling Solutions for successful installation and ongoing performance of the software.
Intellectual Property Rights means all intellectual property rights conferred under statute, common law and equity including without limitation any Confidential Information, copyright, moral rights, patent and trademarks, and includes any right to apply for registration of those intellectual property rights, and any rights to processes, formulae, designs, reports, drawings, specifications, software, blue prints, patent applications, know how, source codes, manuals and research.
License means a license under this License Agreement to use the Software.
License Fee means the fee payable by you for the License.
Licensor means Timetabling Solutions Pty Ltd. As trustee for the TTS Business trust.
ABN: 14 982 024 114
Moral Right means a right of attribution of authorship; a right not to have authorship falsely attributed; a right of integrity of authorship; or a right of a similar nature which is conferred by statute, and which exists or comes to exist anywhere in the world in a deliverable form comprised within this License Agreement.
Software means “Version 9", "Version 10" and, where the context permits, includes software updates, additional modules, user guides, instructional manuals, supplements and related materials may provide to you to the extent that they are not subject to a separate license agreement.
Upgrades and Updates means new versions or new releases of the Software and which may include enhancement.
2. APPLICATION OF THE TERMS & CONDITIONS OF THIS LICENSE AGREEMENT
2.1. The Licensor grants to you a License to use the Software in accordance with the terms and conditions of this License Agreement.
2.2. Where you have bought this Software as an upgrade to an earlier version of the Software, this License shall supersede any previous license.
2.3. This License Agreement contains the entire agreement between the Licensor and you in relation to the Software and supersedes any prior agreements and understandings, whether written or oral.
2.4. The Licensor reserves all rights not expressly granted to you. The Software is licensed, not sold.
3. PRODUCTS & SERVICES PROVIDED UNDER THE LICENSE
3.1. The grant of the Licence is subject to payment by you of the Licence Fee
3.2. Payment of the License Fee shall entitle you to:
3.2.1. A downloadable version of the Software;
3.2.2. All version upgrades of the Software (via internet download) produced during the 12 months from the date of purchase of the License;
3.2.3. Updates released for the Software (via internet download) for a period of 12 months from the date of purchase of the License or until the product is marked as Retired.
3.2.4. Activation Codes; and
3.2.5. Installation Support;
4. PRODUCTS AND SERVICES NOT PROVIDED UNDER THE LICENSE
Payment of the License Fee does not entitle you to receive special versions of the Software created for other customers or particular market segments even though they may contain similar features and functions as the Software.
5. UPGRADES & UPDATES
5.1. Upgrades and Updates will be developed and released by the Licensor at its sole discretion unless otherwise agreed.
5.2. The Licensor does not warrant that:
5.2.1. It will develop or release any upgrades and updates; or
5.2.2. Any upgrade or update will be provided to you or made available to you within any specified time period following the release of such upgrade and update.
6. USE OF SOFTWARE
6.1. You must not use or rely upon the Software for any purpose or in any manner for which the Software is not warranted or licenced.
6.2. Subject to sub-clauses 6.3, 6.4 and 6.5 you are not entitled to install the Software on more than one computer.
6.3. If the Software is to be installed on more than one computer, you must obtain an additional License for each additional computer or have a current Software Maintenance Agreement that has not expired.
6.4. If the Software is to be transferred onto a different computer, you must obtain an Activation Code which shall entitle you to transfer the Software onto that computer.
6.5. The Software may contain a General Access module. If so, you may install the module on your school’s network and allow an unlimited number of individuals within your school to access and use the module from computers connected to that network.
You must keep confidential, maintain proper and secure custody of, and not use or reproduce in any form any Confidential Information of the Licensor without the written consent of the Licensor or as required by law.
8. INTELLECTUAL PROPERTY AND CONFIDENTIALITY
8.1. In entering into this License Agreement you agree that the Licensor retains exclusive ownership of the Intellectual Property Rights relating to the Software and to the Confidential Information.
8.2. The Licensor acknowledges that you have the right to use the Intellectual Property Rights relating to the Software and the Confidential Information for the purposes of exercising your entitlements under this License Agreement.
8.3. You must not:
8.3.1. copy, reproduce, translate, adapt, vary, separate, modify or create any derivative work based on the Software;
8.3.2. reverse engineer, decompile, disassemble, reconfigure or otherwise attempt to discover the source code of the Software; or
8.3.3. sell, market, lease, license, rent, lend or otherwise dispose of or distribute
the Software or provide any permission whatsoever to third parties.
8.4. All questions, comments, suggestions and other communications provided by you regarding the content of the Software, including documents and instructional manuals, shall be deemed to be non-confidential and the Licensor:
8.4.1. shall have no obligation of any kind with respect to any such communication, and shall be free to reproduce, use, disclose and distribute such communication or otherwise without limitation; and
8.4.2. shall be free to use any ideas, concepts, techniques, or know-how contained in any such communication for any purpose, including but not limited to development, manufacturing and marketing products that incorporate such information.
You must install your copy of the Software in the manner described in the installation instructions provided at the time of purchase of the License and in accordance to the minimum system requirements. The Licensor shall not be liable for the consequences of your failure to install your copy of the Software in accordance with the installation instructions.
10. COPY PROTECTION
10.1. The Software may include copy protection technology to prevent unauthorized copying of the Software.
10.2. You shall not make unauthorised copies of the Software or circumvent or attempt to circumvent any copy protection technology included in the Software.
11. TERM OF LICENSE
11.1. The term of the License is perpetual, provided that the License may be terminated by the Licensor if you are in breach of this License Agreement or as otherwise set out in this License Agreement.
11.2. Termination of the License will not prejudice any right which the Licensor may have, or, but for the termination may have had against you for a breach of this License Agreement.
11.3. Upon termination of this License Agreement, you or your representative must destroy the Software, installation instructions, user’s manual and related materials and any copies of them which you possess or return them in the manner directed by the Licensor.
12.1. In entering into this License Agreement, you acknowledge that you have accepted the Software on an “as is” basis after making your own investigations and enquiries and relying on your own skill and judgement.
12.2. Subject to clause 13, the Licensor warrants that the Software will perform substantially in accordance with the accompanying materials for a period of ninety (90) days from the date of delivery. Any updates or upgrades to the Software provided to you or made available to you are not covered by any warranty or condition, whether express, implied or statutory.
12.3. The warranty referred to in clause 12.2 shall be void if the failure of the Software has resulted from accident, abuse, misapplication, abnormal use or a virus.
12.4. Any replacement software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer.
12.5. While the Licensor has endeavoured to make sure that the Software works, the Licensor does not guarantee that the Software will work on all computers and makes no warranty that the Software will be error free or that use will be uninterrupted.
12.6 Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to major failure.
If you experience faults with the software please contact the Licensor:
Timetabling Solutions Pty Ltd
Level 3, 49 Malop St
Geelong, VIC, Australia 3220
Phone: +61 3 5228 3700
Website: http://www.timetabling.com.au/contact/default.aspx (contact us page)
To make a claim for full refund, please contact the Licensor with proof of purchase, such as the tax invoice and or school name.
To make a claim for repair, please contact the Licensor and where possible provide a copy of the data and steps taken to reproduce/demonstrate the fault. This information is best provided via email to email@example.com
The Licensor will be responsible for repair expenses.
13. LIMITATION OF LIABILITY
13.1. The Licensor will not be responsible to you for any defects with the performance, stability and security of the Software or loss or damage that is caused by your computer hardware, servers or operating systems or the ability of any other third party software used as part of the Software to effectively operate in conjunction with such hardware, servers or operating systems.
13.2. The Licensor will not be responsible for any loss or damage caused by incorrect or insufficient data being displayed or used or being entered or imported into or stored in the Software by you or your employees or agents. You will be responsible for regularly testing and auditing of the Software.
13.3. For the purposes of this clause 13 the expression “loss or damage” will include any direct pecuniary losses and any consequential or indirect losses such as loss of anticipated or actual profits, losses relating to hardware, Software or data and loss of goodwill.
13.4. By entering into this License Agreement you warrant that you have not relied on any representation made by the Licensor which has not been stated expressly in this License Agreement which includes the specifications or upon any other descriptions, drawings, or specifications contained in any document produced by the Licensor.
13.5. The Licensor’s liability to you under this License Agreement is limited to refunding the Licence Fee or proportion thereof in respect of which the breach has occurred or to providing the Software again, and the Licensor excludes all statutory liability, implied conditions and warranties and liability for economic, consequential or indirect losses, expenses, damages and costs incurred by you provided that the Licensor does not exclude or restrain the application of any legislation (including the Trade Practices Act) where to do so would:
13.5.1. contravene the legislation; or
13.5.2. result in any part of this clause being deemed void.
13.6. Under no circumstances will the Licensor be liable to you in contract or in tort (including negligence) or otherwise, for any loss or damage (including indirect or consequential loss or damage), howsoever caused, which may be suffered or incurred or which may
arise directly or indirectly out of or in connection with this License Agreement whether
or not such loss or damage was foreseeable or contemplated by any party.
14.1. You use the Software at your own risk.
14.2. You will indemnify the Licensor from and against all actions, claims and demands of any nature and howsoever arising from or relating to the use or functionality of the Software except to the extent that such actions, claims and demands are caused by or contributed to by the wilful or negligent act or omission of the Licensor, its employees or agents or any one or more of them.
15. GOODS AND SERVICES TAX
15.1. For the purposes of this clause 15 expressions bear the same meaning as those expressions in the GST Act.
15.2. To the extent that a party makes a taxable supply in connection with this License Agreement except where express provision is made to the contrary, and subject to this 15 the consideration payable by you under this License Agreement represents the value of the taxable supply for which payment is to be made.
15.3. Subject to clause 15.4. if a party makes a taxable supply in connection with this License Agreement for a consideration which, under clause 15.2 represents its value then the party liable to pay for the taxable supply must also pay, at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the taxable supply.
15.4. A party’s right to payment under clause 15.3 is subject to valid tax invoice being delivered to the party liable to pay for the taxable supply.
15.5. Unless otherwise specified, all amounts stipulated in this License Agreement will be exclusive of GST.
This License Agreement may not be amended modified or supplemented except by written agreement by the parties or persons duly authorised on behalf of the parties.
No waiver by any party of any default in the strict and literal performance of or compliance with any provision condition or requirement in this Licence Agreement will be deemed to be a waiver of strict and literal performance of and compliance with any other provision, condition or requirement of this Licence Agreement nor to be a waiver of or in any way release any party from compliance with any provision condition or requirement in the future nor will any delay or omission of any party to exercise any right under this Licence Agreement in any manner impair the exercise of such right accruing to it thereafter.
This Licence Agreement will be governed by and construed in accordance with the law of the State of Victoria and each of the parties hereby submits to the jurisdiction of the Courts of the State of Victoria.
19. INVALIDITY OF A CLAUSE
Notwithstanding anything to the contrary in this Licence Agreement, if any provision of this Licence Agreement will be invalid and not enforceable in accordance with its terms, all other provisions which are self sustaining and capable of separate enforcement without regard to the invalid provisions will be and continue to be valid and enforceable in accordance with those terms.