1. End User Licence Agreement
Smarter Business Software Pty Ltd ACN 605 751 246 (Licensor) provides the Software and Documentation to the End User on the terms and conditions contained in this End User Licence Agreement (EULA).
By clicking “I Accept”, the End User warrants that they:
(a) have had the opportunity to read and fully understand the term and conditions contained in this Agreement;
(b) will use the Software and the Documentation on the terms and conditions contained herein;
(c) will maintain a current Licence to use any Dependent Software as required; and
(d) the End User has the authority to enter into this Agreement.
If the End User and Licensor have signed a document substantially in the form of this Agreement, then the terms and conditions contained in that agreement apply to the exclusion of those contained herein.
2. Definitions and interpretation
2.1 Defined terms
In this EULA:
Agreement means the terms and conditions contained in this End User Licence Agreement.
Commencement Date means the date that the Software is downloaded from the Website by the End User.
Dependent Software means any software which an End User must have installed in order for the Software provided by the Licensor to operate.
Documentation means the user manual and or guide and explanatory notes or memoranda provided in either electronic or physical form to the End User that may or may not be supplied with the Software provided by Licensor as updated from time to time via the Website.
End User means the persons authorised to access and use the Software and the Documentation pursuant to the terms of this EULA.
EULA means the terms and conditions contained in this End User Licence Agreement.
Insolvency Event means circumstances in which a Party takes any corporate action or any steps are taken or legal proceedings are started for:
(a) its winding-up, dissolution, or liquidation;
(b) the appointment of a controller, receiver, administrator, official manager, trustee or similar officer of it; or
(c) seeking or being granted protection from its creditors, under any applicable legislation.
Intellectual Property means all industrial and intellectual property rights including, without limitation, patents, copyrights, right to extract information from databases, design rights, trade secrets, rights of confidence, and all forms of protection of a similar nature or having similar effect to any of them which may subsist anywhere in the world (whether or not any of them are registered and including applications and the right to make applications for registration of any of them).
Licence Fee means the amount of money payable by the End User to the Licensor for the right to access the Software for the Term.
Party means a party to this EULA and Parties means both Parties to this EULA.
Software means the software described as ‘Vizulate’, licenced to the End User on the terms and conditions contained in this Agreement.
Term means the period of time nominated on the Website which the Licensor offers to licence the Software to the End User.
Trial means a free trial of the Software that does not require payment of the Licence Fee by an End User.
Trial Period means the period of one (1) calendar month.
Updates means any modifications, new or revised versions of the source code that the Software requires to operate more efficiently or effectively as determined by Licensor at its sole discretion.
Website means the website located at the url www.smarterbusinesssoftware.com.au.
(a) one (1) gender includes the others;
(b) the singular includes the plural and the plural includes the singular;
(c) a person includes a body corporate;
(d) a Party includes the Party’s executors, administrators, successors and permitted assigns;
(e) to an amount of money, to $, $A or dollar is a reference to the currency of Australia;
(f) a statute, regulation or provision of a statute or regulation (a Statutory Provision) includes:
(i) that Statutory Provision as amended or re-enacted from time to time; and
(ii) a statute, regulation or provision enacted in replacement of that Statutory Provision;
(g) including and similar expressions are not words of limitation;
(h) where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning;
(i) headings and the table of contents are for convenience only and do not form part of this Agreement or affect its interpretation;
(j) a provision of this Agreement must not be construed to the disadvantage of a Party merely because that Party was responsible for the preparation of this Agreement or the inclusion of the provision in it.
3.1 Commencement and Term
This Agreement commences on the Commencement Date and continues for the Term unless terminated earlier on the terms and conditions contained herein.
3.2 Grant of rights
(a) The Licensor grants the End User a non-exclusive, non-transferable, limited licence, to use the Software and the Documentation for the Term in exchange for the Licence Fee.
(b) the End User may transfer the Software from one (1) Computer to another, provided that the Software is not used on more Computers than the End User has licences for.
(c) The End User can access and use the Software remotely from another Computer without purchasing an additional licence.
(d) The End User may not copy or duplicate the Software except for archiving, software error verification or to replace defective storage media.
(e) The End User must:
(i) only use the Software for the purpose for which it was created;
(ii) only use the Documentation for the purpose for which it was provided; and
(iii) use and access the Software on the hardware and operating systems for which the Software is intended to be used.
(a) The End User does not acquire any express or implied Intellectual Property rights, in the Software or the Documentation beyond the right to use them for the Term as contained in this Agreement.
(b) The End User retains the Intellectual Property (if any) in the data it enters into the Software.
3.4 Payment of Licence Fee
(a) The End User agrees to pay the Licence Fee in exchange for the right to use the Software for the Term. The amount of the Licence Fee is provided on the Website at the time the End User agrees to be bound by the terms and conditions contained in this Agreement.
(b) The End User must pay the Licence Fee on the commencement of the Term by the manner specified by the Licensor.
(a) One (1) month prior to the expiry of the Term:
(i) the Licensor will warn the End User that the Term is about to expire;
(ii) the Licensor will invoice the End User, or ask the End User for payment via whatever reasonable means it determines, prior to the anniversary of the Commencement Date; and
(iii) if the End User fails to renew its Licence after the expiry of the Term, then the End User’s right to use the Software expires and their access will be removed.
4. Requirements for the Software
(a) The End User is responsible for installing the Software and downloading any available Updates further to the instructions provided by the Licensor.
(b) For the Software to operate, End Users must have a current licence to Microsoft Office.
(a) Provided that the Software functions and is fit for purpose, the Licensor has no obligation to provide Updates for the Software.
(b) The Licensor will provide reasonable levels of support for the Software via a self service knowledge base and an email ticket system on the Website.
4.3 Trial use
(a) The Licensor may offer End Users with a Trial of the Software.
(b) Notwithstanding that the End Users do not pay for the Trial, the terms and conditions contained apply to End Users use of the Software during the Trial Period.
(c) The Licensor has the right to determine the End User’s eligibility for a Trial and to withdraw or modify a Trial at any time without prior notice and without obligation to the End User.
(d) At the end of the Trial Period, the End User will be required to pay the Licence Fee in order to continue using the Software.
5. Account and password
5.1 Security of passwords
(a) The End User must keep all usernames and passwords to the Software strictly confidential.
(b) The End User is responsible for:
(i) all activity that occurs via the Software, whether authorised or not; and
(ii) ensuring the accuracy of information entered into the Software.
5.2 Use of accounts
The End User is responsible for ensuring that it is the sole person entitled to use the Software and Documentation and can comply with the terms contained in this Agreement.
6. Privacy Law
7. Specific prohibitions on use of the Software
(a) The End User agrees that it must not:
(i) infringe the Licensor’s or any third Party’s Intellectual Property in the Software or the Documentation;
(ii) use the Software or Documentation in any way that could damage the reputation of the Licensor or the goodwill or other rights enjoyed by the Licensor;
(iii) permit any third Party to obtain access to the Software, or Documentation;
(iv) reproduce, make error corrections to or otherwise modify or adapt the Intellectual Property in the Software, Documentation or create any derivative works based on the Software and Documentation;
(v) de-compile, disassemble, decrypt, or otherwise reverse engineer the Software or permit any third Party to do so;
(vi) transfer, sublicense, rent, lease, lend, license or otherwise transfer or assign the Software; and
(vii) modify or remove any copyright or proprietary notices associated with the Software.
8. No duty of care
8.1 No duty of care
(a) End Users access the Website and download the Software at their own risk and are responsible for compliance with the laws of their jurisdiction in addition to those contained in this Agreement.
(b) The Licensor makes the Software available to use, however the Licensor does not assume a duty of care to the End User. The Licensor makes no representation and provides no warranty regarding the quality, accuracy, completeness, merchantability or fitness for purpose of the content uploaded by Sellers.
(c) Users must make their own investigations to ensure the Software is fit for the purpose which they would like to acquire it if they intend to rely upon it.
9. Warranty disclaimer
The Licensor warrants that the Software will be free of defects for the Term.
9.2 Disclaimer of warranties
(a) To the fullest extent permissible by law, the Software, and the Documentation are provided to the End User without any representations or warranties. The End User agrees to use the Software and the Documentation at its own risk.
(b) Nothing in this EULA excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition implied or imposed by legislation which cannot be lawfully excluded or limited. Such legislation includes the Australian Consumer Law which contains guarantees that protect the purchasers of Goods or services in certain circumstances, each a non-excludable provision (Non-Excludable Provision).
(c) Subject to the Licensor’s obligations under the Non-Excludable Provisions, and to the fullest extent permissible by law, the Licensor expressly disclaims all warranties of any kind with respect to the Software and the Documentation, whether express, implied, statutory, or arising out of the course of performance, course of dealing or usage of trade including any warranties or merchantability, fitness for a particular purpose, satisfactory quality, accuracy, title of non-infringement.
10. Limitation of liability
10.1 Exclusion of liability
(a) Subject to the Licensor’s compliance with the Non-Excludable Provisions and to the fullest extent permissible by law, the Licensor is not liable (whether in contract or tort):
(i) for any actions taken by the End User as a result of accessing information from the Software;
(ii) any malfunction of the Software caused by the End User failing to install Updates as required;
(iii) any malfunction of the Software caused by:
I. the End User failing to follow the procedures and instructions in the Documentation;
II. the use of the Goods or Software with incompatible products;
III. electrical outages, electrical shortages electrical surges or short circuiting;
IV. for anything the End User does to a third Party as a result of using the Software incorrectly;
V. for any inability to use any third Party equipment or access to data;
VI. for loss or corruption of data, loss of business, loss of profits, loss of revenue and anticipated savings, business interruption of the like regardless of whether the loss is direct or indirectly caused by use of the Software or Goods;
VII. for any indirect, incidental, punitive, special, or consequential loss or damage whatsoever, in each case, arising out of the use or inability to use the Software or Documentation, even if the Licensor has been advised of the possibility of such damages or if such damages are foreseeable. Subject to the obligations of the Licensor under the Non-Excludable Provisions and to the fullest extent permissible by law, in no event will the Licensor’s liability for all damages exceed the amounts actually paid by the End User to the Licensor for the Software.
(b) To the fullest extent permitted by law, the liability of the Licensor for a breach of a Non-Excludable Provision is limited to:
(i) in the case of the supply of Software:
I. replacement of the Software;
II. supply of equivalent Software;
III. repair of the Software;
IV. payment of the cost of replacing the Software or of acquiring equivalent Software; or
V. the payment of the cost of having the Software repaired.
(c) Notwithstanding this clause 10 or anything else contained in this EULA, neither Party's liability for death or personal injury resulting from its own negligence is to be limited.
10.2 Limitation of liability
Any loss or damage which is or may be suffered by the End User in connection with the use of the Software is expressly disclaimed by the Licensor. The Licensor limits its liability for breach of a warranty under this EULA, or for a breach of a condition or warranty it cannot lawfully exclude to the extent permitted by law, and is fair and reasonable for the Licensor to do so, to:
(a) resupplying the Software for a further Term;
(b) the price of the Software licensed to the End User; or
(c) paying the Licence Fee to the End User for one (1) year, whichever is the lesser.
(a) The End User indemnifies, defends and holds harmless the Licensor in respect of all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal fees on a full indemnity basis), in connection with any of the following:
(i) any breach of a provision of this EULA;
(ii) the End User’s negligent acts or omissions; or
(iii) use of the Software, including any third Party claims made in connection with, or arising out of, the End User’s use of the Software, and Documentation.
12.1 Termination by the Licensor
The Licensor may terminate this EULA without notice if:
(a) it no longer has the right to provide the Software to the End User for any reason whatsoever;
(b) the End User commits a breach a material term of this Agreement which is not capable of being remedied, after first notifying the End User of such breach;
(c) it is notified, after having made reasonable inquiries, that the End User:
(i) is reverse engineering or otherwise creating derivative works based on the Intellectual Property contained in the Software;
(ii) is attempting to circumvent any technological protection measure which limits the End User’s ability to utilise multiple copies of the Software;
(iii) the End User’s Trial has expired and the End User has not paid a Licence Fee.
12.2 Termination for non-payment
The payment of the Licence Fee is an essential term of this Agreement. The Licensor may terminate this Agreement by providing the End User with thirty (7) days notice, after the expiry of the Term if the End User does not pay the Licence Fee entitling it to use the Software for a further Term.
12.3 Termination for Insolvency
This Agreement will automatically terminate if either Party is the subject of an Insolvency Event.
12.4 Actions upon termination or expiry of the Term
(a) On termination of this EULA for whatever reason:
(i) the End User must stop using the Software within seven (7) days;
(ii) the End User must remove the Software and Documentation from all of its electronic devices;
(iii) the End User must return or destroy all copies of the Documentation;
(iv) the End User agrees that the balance of any prepaid Software Licence Fee is forfeited.
13. Notices and other communications
(a) For all correspondence including Notices in relation to this EULA please contact the Licensor as follows:
Smarter Business Software Pty Ltd ACN 605 751 246
Level 1, 200 Creek Street
BRISBANE QLD 4000
Telephone: 07 3233 6430
(b) If required, the Licensor will contact the End User via the contact details it has retained in its records. If the Licensor has multiple contact details for the End User, it will use the most recent contact details to provide notice to the End User.
14. Miscellaneous provisions
The Licensor may assign this the terms and conditions contained in this Agreement by notifying the End User of the assignment. The End User cannot assign the terms and conditions contained in this EULA without the express consent of the Licensor. Such consent will not be unreasonably withheld.
14.2 Entire agreement
This EULA and any documents incorporated by way of reference amount to the entire agreement between the Parties in connection with its subject matter and supersedes all previous or understandings between the Parties.
14.3 Governing law and jurisdiction
The laws of Queensland and Australia govern this Agreement. The Parties submit to the non-exclusive jurisdiction of the Supreme Court of Queensland and the Federal Court of Australia.
14.4 Goods and Services Tax
(a) Words defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in this clause, unless the context makes it clear that a different meaning is intended.
(b) For the purposes of this EULA where the expression “GST inclusive” is used in relation to an amount payable or other consideration to be provided for a supply under this EULA, the amount or consideration will not be increased on account of any GST payable on that supply.
(c) Any consideration to be paid or provided for a supply made under or in connection with this EULA, unless specifically described in this EULA as “GST inclusive”, does not include an amount on account of GST.
The non-exercise of or delay in exercising a right of a Party does not operate as a waiver of that right, nor does a single exercise of a right preclude another exercise of it or the exercise of other rights. A right may only be waived by notice, signed by the Party (or its authorised representative) to be bound by the waiver.
Part or all of a provision of this EULA that is illegal or unenforceable may be severed from this EULA and the remaining parts of the provision or provisions of this EULA continue in force.
The following clauses survive termination or expiration of this Agreement 3.3, 7, 9, 12.4, and 14.7.