Conditions Of Use
OPEN WINDOWS SOFTWARE PTY LIMITED (ACN 605 191 375)
End User License AgreementThese are the terms on which Open Windows Software Pty Limited (ACN 605 191 375) of 635 Glenferrie Road, Hawthorn, Victoria, 3122, Australia (referred to as we, our and us in the Agreement) licenses you (referred to as you and your in the Agreement) to use the Portal. By accessing or using the Portal, you are agreeing to the following terms. If you do not agree with the following terms, do not access or use the Portal.
1. DefinitionsIP means:
- patents, trade marks, services marks, design rights (whether registered or unregistered and including any applications for these rights);
- copyright (including future copyright) throughout the world in all literary works, artistic works, computer software, and any other works or subject matter in which copyright subsists and may in the future subsist;
- trade or business names;
- know-how, confidential information and trade secrets; and
- moral rights, and any other similar rights or obligations whether registrable or not in any country.
2.1 In consideration of you complying with this Agreement, we authorise you to access and use the Portal. This authorisation continues until terminated in accordance with this Agreement.
2.2 In the event that we make available to you an enhancement, extension or modification to the Portal, add-on component, other web service and/or supplement (whether in conjunction with providing support or otherwise), the terms of this Agreement will apply.
3. No warranties
3.1 The Portal has not been developed to meet your individual requirements and is supplied on an “as is” basis. A failure of any part or the whole of the Portal to be suitable for your requirements will not give rise to any right or claim against us.
3.2 You acknowledge that online services in general are not free of errors or defects and agree that the existence of any errors or defects in the Portal will not constitute a breach of this Agreement.
4. Intellectual Property (IP)
4.1 You acknowledge that you obtain no IP in the Portal. As between us, all IP in the Portal vests in us.
4.2 You must not (except to the extent permitted by any law that cannot be excluded):
- copy, modify, enhance or reproduce the Portal, in whole or in part;
- reverse-engineer, reverse-translate, disassemble, de-compile, or otherwise attempt to derive source code to the Portal;
- incorporate, embed, combine, merge or bundle the Portal with any other hardware or software (except to the extent strictly necessary to use it in accordance with its intended purpose and these terms);
- use the Portal other than for your internal business purposes; and
- directly or indirectly permit any third party to access the Portal, to obtain a sub-license of the Portal or otherwise to do any of the above without our express written consent.
5.1 We may terminate this Agreement immediately by notice if you breach this Agreement and fail to remedy the breach within 14 days of becoming aware of the breach.
5.2 On termination of this Agreement, you must immediately cease accessing or using the Portal.
6. LIMITATION OF LIABILITY AND INDEMNITY
6.1 NOTHING IN THIS AGREEMENT EXCLUDES, RESTRICTS OR MODIFIES ANY CONSUMER GUARANTEE, RIGHT OR REMEDY CONFERRED ON YOU BY THE AUSTRALIAN CONSUMER LAW, SCHEDULE 2 OF THE COMPETITION AND CONSUMER ACT 2010 (CTH), OR ANY OTHER APPLICABLE LAW, THAT CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED BY AGREEMENT.
6.2 TO THE EXTENT PERMITTED BY LAW (INCLUDING THE AUSTRALIAN CONSUMER LAW, SCHEDULE 2 OF THE COMPETITION AND CONSUMER ACT 2010 (CTH)):
- IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY LOST PROFITS, LOST SAVINGS, DELETION OR CORRUPTION OF ELECTRONICALLY STORED INFORMATION, LOST DATA, OR OTHER SPECIAL, DIRECT, INDIRECT, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PORTAL OR OTHER PRODUCTS OR SERVICES FURNISHED OR TO BE FURNISHED UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
- OUR AGGREGATE LIABILITY UPON ANY CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PORTAL OR OTHER PRODUCTS OR SERVICES FURNISHED OR TO BE FURNISHED BY US UNDER THIS AGREEMENT WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO TEN THOUSAND AUSTRALIAN DOLLARS.
6.3 YOU ACKNOWLEDGE THAT WE HAVE SET OUR PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE WARRANTIES, DISCLAIMERS AND LIMITATION OF LIABILITY SET OUT IN THIS AGREEMENT, AND THAT THESE FORM AN ESSENTIAL BASIS OF THE BARGAIN REACHED BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY SPECIFIED IN CLAUSE 6 WILL SURVIVE AND APPLY EVEN IF ANY CLAUSE IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE. NOTWITHSTANDING THIS, NOTHING CONTAINED IN THIS AGREEMENT WILL LIMIT OUR LIABILITY FOR OUR OWN WILLFUL OR WANTON CONDUCT.
6.4 YOU MUST INDEMNIFY US IN RESPECT OF ALL LOSS, DAMAGES AND EXPENSES AND ALL CLAIMS AND DEMANDS MADE BY A THIRD PARTY ARISING OUT OF ANY OF THE FOLLOWING:
- YOUR BREACH OF THIS AGREEMENT; AND
- ANY NEGLIGENT, WILLFUL OR FRAUDULENT CONDUCT BY YOU, YOUR EMPLOYEES, REPRESENTATIVES OR AGENTS.
6.5 EXCEPT AS IMPOSED BY THE AUSTRALIAN CONSUMER LAW, SCHEDULE 2 OF THE COMPETITION AND CONSUMER ACT 2010 (CTH) OR ANY OTHER APPLICABLE LAW THAT CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED BY AGREEMENT AND SUBJECT TO CLAUSE 6.5:
- WE MAKE NO WARRANTY OR REPRESENTATION TO YOU AS TO THE PERFORMANCE OR OPERATION OF THE PORTAL OR ANY OTHER PRODUCTS OR SERVICES; AND
- WE MAKE NO OTHER WARRANTY EXPRESS OR IMPLIED WITH RESPECT TO US, THE PORTAL OR OTHER PRODUCTS OR SERVICES PROVIDED BY US AND ANY CONDITION OR WARRANTY WHICH WOULD OTHERWISE BE IMPLIED IN THIS AGREEMENT IS HEREBY EXCLUDED.
6.6 TO THE FULLEST EXTENT PERMITTED BY LAW, OUR LIABILITY FOR ANY BREACH OF A NON-EXCLUDABLE GUARANTEE REFERRED TO IN THIS CLAUSE 6 WILL BE LIMITED, AT OUR OPTION, TO ONE OR MORE OF THE FOLLOWING:
IF THE BREACH RELATES TO GOODS:
- THE REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS;
- THE REPAIR OF SUCH GOODS;
- THE PAYMENT OF THE COST OF REPLACING THE GOODS OR OF ACQUIRING EQUIVALENT GOODS; OR
- THE PAYMENT OF THE COST OF HAVING THE GOODS REPAIRED; AND
IF THE BREACH RELATES TO SERVICES:
- THE SUPPLYING OF THE SERVICES AGAIN; OR
- THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.
6.7 DESPITE ANY OTHER PROVISION IN THIS AGREEMENT, WE DO NOT EXCLUDE LIABILITY FOR DEATH OR PERSONAL INJURY OR PHYSICAL DAMAGE TO PROPERTY TO THE EXTENT THAT THE SAME ARISES DIRECTLY FROM OUR NEGLIGENCE OR THE NEGLIGENCE OF OUR EMPLOYEES.
7.1 Entire agreement
- Subject to clauses 7.1(b), (c) and (d) below, this Agreement constitutes the entire agreement between the parties as to its subject matter and supersedes all prior communications in connection with that subject matter. The parties acknowledge that, except as expressly stated in this Agreement, they have not relied on any representation, warranty or undertaking of any kind made by or on behalf of the other party in relation to this Agreement.
If you access or use the Portal or any other website operated by us, then you are also subject to our terms and conditions of website use that are currently set out at: http://www.openwindows.com.au/terms_of_use. You agree that, by this access or use, you have agreed to the terms and conditions of website use. For your information and without limiting the application to you of the entirety of the terms and conditions of website use, applicable terms and conditions include the following provisions as currently set out at: http://www.openwindows.com.au/terms_of_use
- Section 2 – Changes to the Website
- Section 3 – Accounts
- Section 4 – Passwords
- Section 5 – Changes to our offerings
- Section 6 – Content
- Section 7 – Access and communication
- Section 11 – Links
- Section 13 – Website licence and use
- Section 14 – Prohibited users
- Section 15 – Termination of your access to the Website
7.2 This Agreement may only be amended in writing that has been either signed or expressly agreed upon by both parties.
7.3 Each party warrants that it has the authority, power and capability to enter into and to perform its obligations under this Agreement and that its obligations under this Agreement are binding and enforceable.
7.4 Neither party will be liable for any failure to perform its obligations under this Agreement (other than an obligation to pay money) if the party is prevented from doing so by any cause beyond its reasonable control.
7.5 Each term of this Agreement must be interpreted in such manner as to be effective and valid under applicable law. If any term of this Agreement is held to be prohibited by or invalid under applicable law, that term is ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement.
7.6 A term of this Agreement may not be waived except in writing signed by the party granting the waiver. The waiver by a party of a breach by another party of any term of this Agreement does not operate as a waiver of another or continuing breach by that party of that term or any other term of this Agreement.
7.7 You must not assign or novate any of your rights or obligations under this Agreement without our prior written consent (which we may withhold in our absolute discretion). We may assign or novate any of our rights or obligations under this Agreement to any person by notice to you.
7.8 This Agreement is governed by the laws applicable in the State of Victoria, Australia. The parties submit to the non-exclusive jurisdiction of the courts of that State.
7.9 No term of this Agreement is to be construed to the disadvantage of a party because that party was responsible for its preparation.