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END USER LICENCE AGREEMENT - THAT IS DISPLAYED DURING INSTALLATION
For Timetabling Solutions Version 10 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 Licence 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.
1. DEFINITIONS
You and Timetabling Solutions. When we say you or your, we mean both you and any entity or school you are authorised to represent.
When we say Timetabling Solutions, we, our or us, we are talking about the Timetabling Solutions entity you contract with and pay fees to based on the edition of the Timetabling Solutions product you are using.
People invited to use Timetabling Solutions. An invited User is a person other than the person or entity that purchased the Licence who has been invited to use our software or services. If you are an invited User, you must also accept these terms to use our software or services.
User means a person with a First name, Last name, and Email address associated with a school on the Timetabling Solutions Management Portal that allows them to Sign in and Activate Version 10.
Activate means full access to the software installed on that machine. When the software is not activated, you can open data files, view, print and export but will not be able to save changes.
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 Licence 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, blueprints, patent applications, know-how, source codes, manuals and research.
Software means "Timetabling Solutions Version 10", “V10” and, where the context permits, includes software updates, additional modules, user guides, instructional manuals, supplements and related materials we may provide to you to the extent that they are not subject to a separate Licence agreement.
Tax Invoice means the document provided to you by Timetabling Solutions that details the price, any tax that has been applied a description of the item and if purchasing software, the Licence Term to use the software and the site name that is being Licenced.
Licence means a named site licence under this Licence Agreement to use the Software. Your Licence(s) name will be listed on your Tax Invoice and expire at the end of the term outlined in your Tax Invoice.
Licence Fee means the fee payable by you for the Licence.
Licensor means Timetabling Solutions Pty Ltd. As trustee for the TTS Business trust.
ABN: 14 982 024 114
Level 3, 49-51 Malop St
GEELONG, VIC, AUSTRALIA 3220
Phone: +61 3 5228 3700
Email: support@timetabling.com.au
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 Licence Agreement.
Payment Method means valid and current credit card information, bank account information or other valid payment information in a form accepted by Timetabling Solutions.
Upgrades and Updates mean new versions or new releases of the Software, which may include enhancement.
2. APPLICATION OF THE TERMS & CONDITIONS OF THIS LICENCE AGREEMENT
2.1. The Licensor grants to you a Licence to use the Software in accordance with the terms and conditions of this Licence Agreement.
2.2. Where you have bought this Software as an upgrade to an earlier version of the Software, this Licence shall supersede any previous Licence.
2.3. This Licence 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 licenced, not sold.
3. FEES AND PAYMENT
3.1 You shall pay all fees in accordance with the applicable Tax Invoice at the time such fees are due and payable
3.2 If you add additional User Accounts during the Initial Term or a Renewal Term, the associated Fees will be pro-rated based on the number of months such new Accounts were active. Fees for User Accounts added during a monthly period will be prorated for the remaining time of the monthly period in which they were purchased.
3.3 You are responsible for maintaining complete and accurate billing and contact information for the Services.
3.4 You understand that Timetabling Solutions does not collect nor store any payment and/or credit card information from you and that Credit Card payments are facilitated separately by Chargent, eWay, or any other third-party payment or service facility used by Timetabling Solutions.
3.5 You understand that any and all Payment Methods supplied by you for any Fee transaction is transmitted directly to the Payment Service used by Timetabling Solutions, which processes, stores, and otherwise uses such information in order to facilitate payments of the Fees. If you use the eWay Payment Service to pay the Fees, you acknowledge and agree that you will be subject to eWay's Services Agreement, located at https://www.eway.com.au/legal/.
3.6 You agree that once you make payment of any Fees, you will not seek to cancel, chargeback, or otherwise seeks a refund on any basis that is fraudulent, misleading or untrue. If you breach the foregoing provision, you agree to reimburse Timetabling Solutions for any fees charged to it by the Payment Service resulting from your fraudulent, misleading, or untrue cancelation, chargeback, or refund request.
3.7 In addition to any other rights granted to Timetabling Solutions herein, Timetabling Solutions reserves the right to suspend or terminate this Agreement and your access to the Service if you fail to pay any Fees when due, regardless of the reason for such nonpayment. You agree that Timetabling Solutions shall not be liable to you, any User, or to any other third party for any liabilities, claims or expenses arising from or relating to suspension of the Service resulting from your nonpayment. Timetabling Solutions reserves the right to impose a reconnection fee in the event your Account is suspended and you thereafter request reinstated access to the Service.
4. PRODUCTS & SERVICES PROVIDED UNDER THE LICENCE
4.1. The grant of the Licence is subject to payment by you of the Licence Fee. Your Licence(s) expire at the end of the term outlined in your Tax Invoice.
4.2. Payment of the Licence Fee shall entitle you to:
4.2.1. A downloadable version of the Software. The version(s) of the Software available at your renewal date may be different from the version(s) available when you first purchased your Licence(s) from Timetabling Solutions.
4.2.2. All version upgrades of the Software (via internet download) produced during the 12 months from the date of purchase of the Licence. The versions of the Software that Timetabling Solutions supports can be found here (https://timetablingsolutions.freshdesk.com/support/solutions/articles/1000291064-product-lifecycle-statement)
4.2.3. Updates released for the Software (via internet download) for 12 months from the date of purchase of the Licence.
4.2.4. Activation; and
4.2.5. Installation Support
4.2.6. You agree that your decision to use or purchase Software is not contingent on the delivery of any future functionality or features or dependant on any oral or written public comments made by us regarding future functionality or features.
5. PRODUCTS AND SERVICES NOT PROVIDED UNDER THE LICENCE
5.1 Payment of the Licence 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.
6. UPGRADES & UPDATES
6.1. Upgrades and Updates will be developed and released by the Licensor at its sole discretion unless otherwise agreed.
6.2. The Licensor does not warrant that:
6.2.1. It will develop or release any upgrades and updates; or
6.2.2. 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.
7. USE OF SOFTWARE
7.1. 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.
7.2. 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.
8. CONFIDENTIALITY
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.
9. INTELLECTUAL PROPERTY AND CONFIDENTIALITY
9.1. In entering into this Licence Agreement you agree that the Licensor retains exclusive ownership of the Intellectual Property Rights relating to the Software and the Confidential Information.
9.2. The Licensor acknowledges that you have the right to use the Intellectual Property Rights relating to the Software and the Confidential Information to exercise your entitlements under this Licence Agreement.
9.3. You must not:
9.3.1. copy, reproduce, translate, adapt, vary, separate, modify or create any derivative work based on the Software;
9.3.2. reverse engineer, decompile, disassemble, reconfigure or otherwise attempt to discover the source code of the Software; or
9.3.3. sell, market, lease, Licence, rent, lend or otherwise dispose of or distribute the Software or provide any permission whatsoever to third parties.
9.4. 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:
9.4.1. 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
9.4.2. 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.
10. INSTALLATION
You must install your copy of the Software in the manner described in the installation instructions provided at the time of purchase of the Licence and in accordance with 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.
11. COPY PROTECTION
11.1. The Software may include copy protection technology to prevent unauthorised copying of the Software.
11.2. You shall not make unauthorised copies of the Software or circumvent or attempt to circumvent any copy protection technology included in the Software.
12. TERM OF LICENCE
12.1. The term of the Licence is set in your Tax Invoice, provided that the Licence may be terminated by the Licensor if you are in breach of this Licence Agreement or as otherwise set out in this Licence Agreement.
12.2. Termination of the Licence 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 Licence Agreement.
12.3. Upon termination of this Licence 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.
13. WARRANTY
13.1. In entering into this Licence 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.
13.2. 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.
13.3. 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.
13.4. Any replacement software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer.
13.5. 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.
13.6 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 a 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
Email: support@timetabling.com.au
Website: https://www.timetabling.com.au/contact-us/ (contact us page)
To claim a full refund, please contact the Licensor with proof of purchase, such as the tax invoice and or school name.
To claim 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 support@timetabling.com.au
The Licensor will be responsible for repair expenses.
14. LIMITATION OF LIABILITY
14.1. 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.
14.2. 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.
14.3. 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.
14.4. By entering into this Licence Agreement you warrant that you have not relied on any representation made by the Licensor which has not been stated expressly in this Licence Agreement which includes the specifications or upon any other descriptions, drawings, or specifications contained in any document produced by the Licensor.
14.5. The Licensor’s liability to you under this Licence 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:
14.5.1. contravene the legislation; or
14.5.2. result in any part of this clause being deemed void.
14.6. 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 Licence Agreement whether or not such loss or damage was foreseeable or contemplated by any party.
15. INDEMNITY
15.1. You use the Software at your own risk.
15.2. 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.
16. GOODS AND SERVICES TAX
16.1. For the purposes of this clause 15 expressions bear the same meaning as those expressions in the GST Act.
16.2. To the extent that a party makes a taxable supply in connection with this Licence Agreement except where express provision is made to the contrary, and subject to this clause15 the consideration payable by you under this Licence Agreement represents the value of the taxable supply for which payment is to be made.
16.3. Subject to clause 15.4. if a party makes a taxable supply in connection with this Licence 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.
16.4. A party’s right to payment under clause 15.3 is subject to a valid tax invoice being delivered to the party liable to pay for the taxable supply.
16.5. Unless otherwise specified, all amounts stipulated in this Licence Agreement will be exclusive of GST.
17. AMENDMENT
This Licence Agreement may not be amended modified or supplemented except by written agreement by the parties or persons duly authorised on behalf of the parties.
18. WAIVER
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.
19. JURISDICTION
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.
20. 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.