Refrigeration Index Calculator SOFTWARE LICENCE AGREEMENT
USE OF THE REFRIGERATION INDEX CALCULATOR SOFTWARE (SOFTWARE) IS CONDITIONAL UPON YOU AGREEING TO THE TERMS OF THE AGREEMENT SET OUT BELOW (AGREEMENT).
PLEASE READ THE AGREEMENT CAREFULLY BEFORE INSTALLING OR OPERATING THE SOFTWARE AS IT CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS.
If you or your organisation (User) agree to the terms set out in this Agreement, please click on the “I accept” button at the end of these terms and you will then be bound by them. If you do not agree to the terms, please click on the “I do not accept” button at the end of these terms and you will not be allowed to use the Software.
These terms apply to the provision of the Software to the exclusion of any other terms.
1 Commencement of agreement
1.1 This Agreement takes effect from the time any User commences installing the Software by agreeing to these terms through clicking the 'I ACCEPT' button.
2 The software
2.1 Subject to the terms set out below, MLA grants the User a non-exclusive, non-transferable limited licence to:
2.1.1 install the Software on the User's hard disk; and
2.1.2 use the Software,
in accordance with this Agreement, provided that the User is an Eligible Person.
How the Software can be used
2.2 The User must:
2.2.1 use the Software in accordance with the Software information and documentation provided by MLA (Software Documentation);
2.2.2 use reasonable endeavours to ensure that the Software is protected from access, use, damage or destruction; and
2.2.3 not sublicense or otherwise permit any third party to use or access the Software.
2.3 Except to the extent permitted by Division 4A of the Copyright Act 1968 (Cth) or otherwise as expressly permitted by this Agreement, the User must not reproduce, modify, adapt, translate or create derivative works based on the Software.
3 Restrictions on Use
3.1 The User may make one back-up copy of the Software solely for archival, backup and recovery purposes. Such copy will in all respects be subject to the terms of this Agreement.
3.2 The User will not make copies of the Software additional to those expressly permitted under this Agreement.
3.3 The User will not copy any Software Documentation that accompanies the Software.
3.4 The User will not remove, modify or obscure any copyright, trade mark and/or other proprietary notices relating to the Software. All notices must be duplicated as they appear in connection with the Software and all authorised copies.
3.5 The User will not reverse engineer, decompile or disassemble the Software or directly or indirectly allow anyone else to do so.
3.6 The User may not distribute any portions of the Software to any third party or make the Software available to any third party in any way other than in a manner specifically authorised under this Agreement.
3.7 The User will not use the Software in any application or situation where any failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage.
3.8 If the User is notified by or on behalf of MLA of a potential intellectual property infringement regarding the Software (regardless of the source of the intellectual property infringement), the User will immediately discontinue its use of the Software.
4 Updates and upgrades
4.1 MLA may offer updates (a new release of the Software which has been produced primarily to overcome defects in, or to improve the operation of, the Software, without significantly altering the functionality of the Software) to the User at no cost where MLA makes such updates available at no cost to other customers of MLA.
4.2 MLA may:
4.2.1 offer an upgrade (a new version of the Software which has been produced primarily to extend, alter or improve the Software by providing additional functionality or performance enhancement while still retaining the original designated purpose of the Software); and
4.2.2 charge an additional fee for the installation and licensing of any such upgrade.
4.3 The User is not obliged to accept any upgrades offered by MLA.
4.4 If the User has purchased support Services in respect of the Software, MLA is only obliged to provide those Services in respect of the current version of the Software and the two immediately prior versions.
5 MLA's warranties
5.1 While every effort has been made to offer functional and useable Software that is free of bugs and errors, defects can occur and the Software is provided "as is".
5.2 MLA gives no warranty or guarantee, or make any representation regarding the functionality, reliability or performance of the Software nor as to the results or accuracy of results generated by the Software.
5.3 MLA does not warrant or promise that the Software and/or the Software Documentation:
5.3.1 will meet the User's needs;
5.3.2 is error or virus free;
5.3.3 can be used without interruption; or
5.3.4 will be accurate, effective and/or reliable.
5.4 Furthermore, MLA does not warrant or promise that any errors in the Software and/or Software Documentation will be corrected.
5.5 You must rely upon your own investigations as to whether the Software and/or Software Documentation will meet your needs and the environment in which the Software is to be operated.
5.6 To the maximum extent permitted by law, no other representation, warranty, guarantee, condition or other term, express or implied, as to the quality or nature of the Software is given or accepted by MLA and all such representations, warranties, conditions and other terms are excluded.
6 USER warranties
6.1 The User represents and warrants to MLA that it is an Eligible Person.
7 Privacy, intellectual property and confidentiality
7.1 MLA and the User will comply with all applicable privacy and data protection laws and regulations.
7.2 The User will not give any data to MLA containing personal information unless the person to whom the data relates has consented to:
7.2.1 that disclosure; and
7.2.2 the use of that information by MLA is for the purpose for which it was disclosed, to enable MLA to fulfil its obligations under these terms and for the improvement of and development of the Software.
7.3 Nothing in these terms affects the ownership of the User's data (User Data), which MLA acknowledges remains with the User.
7.4 The User grants to MLA a non-exclusive, royalty free licence to use the User Data for the purposes of fulfilling its obligations under these terms.
7.5 MLA acknowledges that the User Data is the User's confidential information and MLA will not disclose or use that information for any purpose other for the purpose for which it was disclosed, to enable MLA to fulfil its obligations under these terms and for the improvement of and development of the Software.
7.6 All intellectual property rights (including copyright) subsisting in and relating to the Software and the Software Documentation provided to the User (IP) remain the sole property of MLA at all times.
7.7 No part of the Software or the IP, including text, graphics, trade marks, other product and service marks and code, may be reproduced or communicated in any form by any means without MLA's prior written permission
7.8 If the User suspects or becomes aware of any infringement or threatened infringement of the IP, it must promptly notify MLA.
Duty to preserve confidentiality
7.9 The Software and the Software Documentation provided to the User include trade secrets and proprietary know-how belonging to MLA and is made available to the User in confidence and solely on the basis of a confidential relationship. The User must not disclose that information to any other person or use it for any purpose other than as contemplated by this Agreement.
7.10 The User's obligation not to disclose MLA's confidential information survives termination of this Agreement.
8.1 To the maximum extent permitted by law, in no circumstances will MLA be liable to the User or any third party for any direct, indirect, consequential, special, exemplary or incidental damages, for any lost profits, savings or goodwill or for loss or corruption of data, whether in contract, tort (including negligence) or otherwise. The entire risk in the result and performance of the Software is assumed by the User.
8.2 MLA's liability for breach of any consumer guarantee, which cannot be excluded, is limited at the option of MLA to:
8.2.1 in the case of services supplied or offered by MLA, resupplying or paying the cost of resupplying the service; or
8.2.2 in the case of goods supplied or offered by MLA, replacing, supplying equivalent, repairing or paying the cost of replacing, supplying equivalent, repairing the goods.
8.3 Notwithstanding any other term in this Agreement, MLA's total aggregate liability under or in any way connected with or arising out of this Agreement whether in contract, tort (including negligence) or otherwise, is limited for any liability incurred during a year, to the sum of amounts paid to MLA in connection with this Agreement, in that year.
9.1 This Agreement is effective until terminated.
9.2 If the user:
9.2.1 fails, within 1 month after receipt of written notice from MLA, to remedy any breach of its obligations under this Agreement which is capable of remedy; or
9.2.2 breaches any provision of this Agreement which is not capable of remedy,
MLA may, by notice, terminate this Agreement.
Effect of termination
9.3 If this Agreement is terminated by MLA, then the User must, at its own expense and at the option of MLA, deliver to MLA or destroy all copies of the Software and any Software Documentation provided to it relating to the Software in the possession or under the control of the User.
10.1 Notices under this Agreement must be given in writing and, in the case of MLA, may be given by posting them on the website located at www.mla.com.au.
10.2 The User may not assign this Agreement, nor any of the rights or obligations under this Agreement, nor sub-license the use (in whole or in part) of the Software and/or Software Documentation without the prior written consent of MLA, which may be given at MLA's absolute discretion.
10.3 This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all previous agreements, arrangements or undertakings between the parties relating to the subject matter of this document and any representations or warranties previously given or made.
Goods and services tax
10.4 Where a party makes a taxable supply (Supplier) to another party (Recipient), the Recipient must pay to the Supplier an additional amount equal to the GST, payable at the same time as the payment for the supply, subject to the Recipient receiving a tax invoice.
10.5 Except to the extent stated otherwise, all MLA fees includes all taxes, duties and other government levies, fees and charges (other than GST) that are imposed in relation to these terms or the Software.
10.6 Terms are used in clauses 10.4 and 10.5 they have the meanings given to them in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Governing law and jurisdiction
10.7 These terms are governed by the law of New South Wales and the parties submit to the non-exclusive jurisdiction of its courts.
10.8 If a clause or part of a clause can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from these terms, but the rest of these terms are not affected.
10.9 In these terms:
10.9.1 a reference to a party includes that party's administrators, successors and permitted assigns;
10.9.2 a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
10.9.3 an expression importing a natural person includes any company, trust, partnership, joint venture, association, body corporate or governmental agency; and
10.9.4 words expressed in the singular include the plural and vice versa.