End User License Agreement
This Software End User License Agreement ("Agreement") is a legal agreement between you (both the individual installing the Software Program and any single legal entity for which the individual is acting) as a valid owner of a Marderc’s component drive product ("You" or "Your") and Marderc Pty Ltd ("Marderc").
PLEASE READ THIS AGREEMENT CAREFULLY. BY TAKING ANY STEP TO SET UP OR INSTALL THE PROGRAM MEANS THAT YOU ACCEPT ALL OF THE TERMS OF THIS LICENSE AGREEMENT. PERMISSION TO DOWNLOAD AND/OR USE THE PROGRAM IS EXPRESSLY CONDITIONED ON YOUR FOLLOWING THESE TERMS. WRITTEN OR ELECTRONIC APPROVAL IS NOT REQUIRED TO MAKE THIS AGREEMENT VALID AND ENFORCEABLE. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO USE OR DOWNLOAD THE PROGRAM AND MUST STOP INSTALLING IT OR UNINSTALL IT, AS APPLICABLE.
Marderc reserves the right to amend the terms of this Agreement at any time and will post a notice on its website giving notice of that change for a period of 30 days. Following Marderc's posting of the amendment notice on Marderc's website, Your subsequent access to or use of the Program and Documentation will constitute an acceptance of those amendments.
1.1 "Documentation" means written documentation, specifications and help content made generally available by Marderc to aid in installing and using the Program.
1.2 "Intellectual Property Rights" means all copyright, patents, design rights, trademarks and service marks and applications for any of the foregoing, together with all trade secrets, know-how, database rights, rights to confidentiality, intellectual and industrial property rights and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration in all parts of the world.
1.3 "Marderc Product" means the Marderc component drive products with which the Program will operate.
1.4 "Program" means all or any part of Marderc's software for Marderc Product for the purpose licensed to You by Marderc under this Agreement.
2. PROGRAM LICENSE
2.1 Limited License. Subject to your compliance with this Agreement and this Agreement's restrictions, Marderc grants to You a limited, non-exclusive, non-transferable, royalty-free license (without the right to sub-license):
(a) to install a single copy of the Program on the equipment containing the Marderc Product, solely to upgrade the Marderc Product as described in the Documentation ("Authorized Use");
(b) to use the Documentation in support of Your Authorized Use; and
(c) to make one copy of the Program solely for backup purposes, provided that all titles and trademark, copyright and restricted rights notices are reproduced on the copy.
2.2 Restrictions. You will not copy or use the Program or Documentation except as expressly permitted by this Agreement. You will not transfer, sub-license, rent, lease or lend the Program, or use it for third-party training, commercial time-sharing or service bureau use. You will not Yourself, and will not allow any third party, directly or indirectly to modify, reverse engineer, adapt, sub-license, translate, sell, disassemble or decompile any portion of the Program or the Documentation nor make any products derived from them, except to the extent expressly permitted by applicable Australian law. You will not use the Program on multiple processors without Marderc's prior written consent.
2.3 Ownership. Marderc or its licensor retains all right, title and interest in and to all Intellectual Property Rights in the Program and Documentation, and any derivative works thereof. You acknowledge that You do not acquire any Intellectual Property Rights, express or implied, in the Program and Documentation beyond the limited license set forth in this Agreement.
2.4 Intellectual Property Infringement. If You become aware of any infringement or suspected infringement by any third party of any Intellectual Property Rights in the Program or Documentation, You must immediately notify Marderc and must, at the request of Marderc, take such action as Marderc may reasonably deem appropriate to protect its Intellectual Property Rights. If You become aware of any actual or potential claim which may be made against Marderc or You, alleging that the Program or Documentation infringes any third party's Intellectual Property Rights, You must immediately notify Marderc of that claim, and do all reasonable things or take any necessary action, at the request of Marderc, to defend that claim.
2.5 No Support. Marderc has no obligation to provide support, maintenance, upgrades, modifications or new releases ("Upgrades") for the Program or Documentation under this Agreement. However if Upgrades are provided by Marderc, the use of such Upgrades is governed by this Agreement and is subject to the license and restrictions in this clause 2, unless different terms accompany the relevant Upgrades in which case those terms will apply.
3. WARRANTY DISCLAIMER
TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THE PROGRAM AND DOCUMENTATION ARE PROVIDED WITHOUT ANY REPRESENTATIONS OR WARRANTIES, AND YOU AGREE TO USE THEM AT YOUR SOLE RISK. NOTHING IN THIS AGREEMENT 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 BE EXCLUDED OR LIMITED (EACH A "NON EXCLUDABLE PROVISION"). SUCH LEGISLATION INCLUDES THE AUSTRALIAN CONSUMER LAW WHICH CONTAINS GUARANTEES THAT PROTECT THE PURCHASERS OF GOODS OR SERVICES IN CERTAIN CIRCUMSTANCES. SUBJECT TO Marderc'S OBLIGATIONS UNDER THE NON-EXCLUDABLE PROVISIONS AND TO THE FULLEST EXTENT PERMISSIBLE BY LAW, MARDERC EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE PROGRAM AND DOCUMENTATION, WHETHER EXPRESS, IMPLIED, STATUTORY, OR ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, TITLE OR NON-INFRINGEMENT.
4. DAMAGES AND REMEDIES FOR BREACH
You agree that any breach of this Agreement's restrictions would cause Marderc irreparable harm for which money damages alone would be inadequate. In addition to damages and any other remedies to which Marderc may be entitled, You agree that Marderc may seek injunctive relief to prevent the actual, threatened or continued breach of this Agreement.
This Agreement is effective until terminated. Marderc may terminate this Agreement at any time upon Your breach of any provision. If this Agreement is terminated, Your license to use the Program and the Documentation will immediately terminate and You must stop using the Program, permanently delete it from the equipment where it resides, and destroy all copies of the Program and Documentation in Your possession, confirming to Marderc in writing that You have done so. Sections 2.2, 2.3, 2.4, 3, 4, 5 and 6 will continue in effect after this Agreement's termination. Any termination of this Agreement is without prejudice to any right, action or remedy which has accrued or which may accrue in favour of Marderc.
6. GENERAL TERMS
6.1 Law. This Agreement and all matters arising out of it are governed by the laws of Victoria, Australia, and the parties irrevocably consent to the exclusive jurisdiction and venue in the courts of that State and the Commonwealth of Australia. Application of the United Nations Convention on Contracts for the International Sales of Goods is expressly excluded.
6.2 Limitation of Liability. Subject to the obligations of Marderc under the Non-excludable Provisions and to the fullest extent permissible by law, neither Marderc or its subsidiaries nor Marderc's suppliers will be liable (whether in contract, negligence or anything else) to You or to any third party:
(a) for any inability to use any third party equipment or access to data, for loss or or corruption of data, loss of business, loss of profits, loss of revenue and anticipated savings, business interruption or the like (whether such loss or damage is direct or indirect); or
(b) 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 Program or Documentation , even if Marderc has been advised of the possibility of such damages or if such damages are foreseeable. Subject to the obligations of Marderc under the Non-excludable Provisions and to the fullest extent permissible by law, in no event will Marderc's liability for all damages exceed the amounts actually paid by You to Marderc for the Program.
To the fullest extent permitted by law, the liability of Marderc for a breach of a Non-excludable Condition is limited to:
· (a) in the case of the supply of goods:
· (i) replacement of the goods;
· (ii) supply of equivalent goods;
· (iii) repair of the goods;
· (iv) payment of the cost of replacing the goods or of acquiring equivalent goods; or
· (v) the payment of the cost of having the goods repaired; and
· (b) in the case of the provision of services:
· (i) the supplying of the services again; or
· (ii) payment of the cost of having the services supplied again.
Notwithstanding this clause 6.2 or anything else contained in this Agreement, neither party's liability for death or personal injury resulting from its own negligence shall be limited.
6.3 Indemnity. You indemnify, defend and hold harmless Marderc 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:
(a) any breach of this Agreement by You;
(b) Your negligent acts or omissions; or
(c) Your use of the Program, including any third party claims made in connection with, or arising out of, Your use of the Program and Documentation.
6.4 Severability and Waiver. If any provision of this Agreement is held to be illegal, invalid or otherwise unenforceable for any reason, then where such provision can be read down as to give it a valid and enforceable operation of a partial nature it must be read down to the extent necessary to achieve that result; and in any other case, such provision must be severed from this Agreement in which event the remaining provisions will continue in full force and effect as if the severed provision had not been included. The waiver by either party of any default or breach of this Agreement will not waive any other or subsequent default or breach.
6.5 No Assignment. You must not assign, sell, transfer, delegate or otherwise dispose of this Agreement or any rights or obligations under it, whether voluntarily or involuntarily, by operation of law or otherwise, without Marderc's prior written consent. Any purported assignment, transfer or delegation by You will not be effective. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns. You agree, represent and warrant that You will not export the Program or any underlying technology in contravention of any applicable U.S., Australian or foreign export laws and regulations.
6.6 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements or representations, whether written or oral, concerning its subject matter. This Agreement may not be modified or amended without Marderc's prior and express written consent, and no other act, document, usage or custom will be deemed to amend or modify this Agreement.
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