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Software License READ THIS SOFTWARE LICENSE AGREEMENT CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING OPEN SYSTEM CONSULTANTS PTY LTD SUPPLIED SOFTWARE. THIS DOCUMENT CONSTITUTES A LICENSE TO USE THE SOFTWARE ON THE TERMS AND CONDITIONS APPEARING BELOW. BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE YOU ARE CONSENTING TO BE BOUND BY THIS LICENSE. IF YOU ARE NOT THE LICENSEE THEN YOU MUST HAVE AGREEMENT IN WRITING THAT THE LICENSEE WILL ABIDE BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS LICENSE, THEN DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE. The following terms govern your use of the Software except to the extent a particular program (a) is the subject of a separate written agreement with Open System Consultants Pty. Ltd. or (b) includes a separate "click-on" license agreement as part of the installation and/or download process. To the extent of a conflict between the provisions of the foregoing documents, the order of precedence shall be (1) the written agreement, (2) the click-on agreement, and (3) this Software License. This License Agreement is entered into between Open System Consultants Pty. Ltd, the Agent and/or the owner of all rights in respect of the software (herein referred to as "Licensor") of the one part and you, the Licensee on the other. The computer program(s) and related documentation and materials (herein collectively referred to as "the Software") are licensed, not sold, to the Licensee for use only upon the terms of this license, and Licensor reserves any rights not expressly granted to Licensee. Licensor retains ownership of all copies of the Software. GRANT. Licensor hereby grants Licensee a non-exclusive, non-transferable license to use the Software upon payment of the License Fee until the expiry date of the license (if any). If no expiry date is applicable to the license, then the license to use the Software is perpetual. Licensor makes no guarantee of the frequency, value, applicability or content of future updates or modifications to the Software. The Software will only be made available to the Licensee in electronic form for download. The requirement to pay a license fee does not apply to evaluation or beta copies for which Licensor does not charge a license fee. Evaluation and beta licenses expire 30 calendar days from the date of this agreement, unless otherwise agreed to in writing by Licensor. On the date of expiry of the license, Licensee agrees to either purchase the Software at the list price in force at that time or to destroy all copies of the Software in electronic or other form, including any copies on backup tapes or other media. Licensee's use of the Software shall be limited to use on a single hardware chassis, on a single central processing unit, as applicable, or use on such greater number of chassis or central processing units as Licensee may have paid the required License Fee. The Software may only be installed and operated on equipment that is owned and operated by the Licensee. Licensee's use of the Software shall also be limited, as applicable and set forth in Licensee's purchase order or in Open System Consultants Pty. Ltd. product catalog, user documentation, or web site, to a maximum number of (a) seats (i.e. users with access to the installed Software), (b) concurrent users, sessions, ports, and/or issued and outstanding IP addresses, and/or (c) central processing unit cycles or instructions per second. Licensee's use of the Software shall also be limited by any other restrictions set forth in Licensee's purchase order or in Open System Consultants Pty. Ltd. product catalog, user documentation or web site for the Software. Licensee may not: permit other individuals to use the Software except under the terms listed above; translate, reverse engineer, decompile, decrypt, disassemble (except to the extent applicable laws specifically prohibit such restriction), or create derivative works based on the Software; copy the Software (except for back-up purposes); rent, lease, transfer, assign, sub-license or otherwise transfer rights to the Software; or remove any proprietary notices or labels on the Software. TITLE. Title, ownership rights, and intellectual property rights in and to the Software and any derived works shall remain solely with Licensor. Where Licensor acts as the Agent of the Copyright holder, title shall remain solely with the Copyright holder. The Software is protected by the copyright laws of Australia and international copyright treaties. ASSIGNMENT. Neither party shall have the right to assign
or transfer any duties, rights or obligations due hereunder without the
express written consent of the other party, except that the Licensor may
assign the Agreement to its successor or any entity acquiring all or substantially
all of the assets of the Company. DISCLAIMER OF WARRANTY. The Software is provided on an "AS IS" basis, without warranty of any kind, including without limitation the warranties of merchantability, fitness for a particular purpose and non-infringement. The entire risk as to the quality and performance of the Software is borne by you. Should the Software prove defective, you and not Licensor assume the entire cost of any service and repair. This disclaimer of warranty constitutes an essential part of the agreement. SOME STATES DO NOT ALLOW EXCLUSIONS OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTION. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL LICENSOR OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES. IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY DAMAGES IN EXCESS OF LICENSOR'S LIST PRICE FOR A LICENSE TO THE SOFTWARE, EVEN IF LICENSOR SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU. EXPORT RESTRICTIONS. This License Agreement is in addition
expressly made subject to any United States regulations and other restrictions
regarding export or re-export of computer software. Licensee agrees not
to export or re-export any Software or derivative thereof in contradiction
to any such applicable restriction. PROPRIETARY NOTICES. Licensee agrees to maintain and reproduce all copyright and other proprietary notices on all copies, in any form, of the Software in the same form and manner that such copyright and other proprietary notices are included on the Software. Except as expressly authorized in this Agreement, Licensee shall not make any copies or duplicates of any Software without the prior written permission of Licensor. Licensee may make such backup copies of the Software as may be necessary for Licensee's lawful use, provided Licensee affixes to such copies all copyright, confidentiality, and proprietary notices that appear on the original. TERMINATION. This license will terminate automatically if Licensee fails to comply with the limitations described above. On termination, Licensee must destroy all copies of the Software in electronic or other form, including any copies on backup tapes or other media. Upon termination of this License for any reason, Licensee shall have no right to refund of the whole or part of any License Fee paid. MISCELLANEOUS. This Agreement represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. It may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. This Agreement shall be governed by and construed under the laws of the State of Queensland, Australia. The application the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. Open System Consultants Pty. Ltd. |
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