END USER LICENSE AGREEMENT
Kajeeva Pty Ltd trading as Beakon (ACN 139045604)
THIS AGREEMENT made BETWEEN Kajeeva Pty Ltd trading as Beakon (ACN 139045604) of 904 2-14 Kings Cross Rd, Potts Point NSW 2011, Sydney, New South Wales, 2011 (“Licensor”) – and You (“Licensee”) (the “Parties”)
1. Definitions and interpretation
In this Agreement (including the recitals) unless the context otherwise requires: Agreement means this agreement and its schedule;
Product means Beakon as detailed in Schedule 1; Terms means the terms and conditions of this Agreement.
In this Agreement unless the context otherwise requires:
(a) headings are for convenience only and do not affect its interpretation and construction;
(b) the singular includes the plural and vice versa;
(c) words importing a gender include other genders;
(d) where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;
(e) a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, re-enactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;
(f) “includes” is not a word of limitation;
(g) a reference to any thing is a reference to the whole and each part of it;
(h) a reference to a group of persons is a reference to all of them collectively and to each of them individually; and
(i) a reference to a document includes all amendments or supplements to, or replacements or novation of, that document.
2.1. This Agreement is between you and the Licensor, and governs the Products made available to you.
(a) selecting the ‘Accept’ option;
(b) payment of the license fee for the Product at the point of purchasing the licence for the Product; or
(c) upon downloading, installing or using the Product (whichever comes first), you are granted a revocable, non-transferable, non-exclusive and limited licence (“Licence”) strictly in accordance with the Terms of this Agreement.
2.3. If you do not agree to the Terms of this Agreement, you must not install, use, or copy the Product.
3. License grant
3.1. This Agreement entitles you to
(a) install and use the Product on a single computer; or
(b) install and make an archival copy of the Product on a storage medium other than a hard drive, and may only be used for the reinstallation of the Product.
3.2. This Agreement does not permit the installation of the Product
(a) on more than one computer at any given time;
(b) on a system that allows shared use of applications;
(c) on a multi-user network; or
(d) on any configuration or system of computers that allow multiple users unless you have a license for each separate computer on which the product is installed and run.
4.1. Limitations on transfer
You may not assign your rights and obligations under this Agreement, or redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer your rights to the Products.
4.2. Limitations on use
You may not:
(a) share the Licence, or contents of the Product, with others;
(b) copy, install or use the Product on any system with more than one computer; or
(c) permit the use, copying or installation of the Product by more than one user or on more than one computer unless you hold multiple, validly, licensed copies. You may not:
(d) decompile, “reverse engineer”, disassemble, or otherwise attempt to derive the source code for the Product;
(e) broadcast, transmit or otherwise display in a public forum or any venue not restricted to you, the Product or any part of the product
(f) post the Product or part of the Product on any website; or
(g) use the Product for commercial purposes.
4.3. Limitations on derived works
You may not modify the Product, create derivative works based upon the Product, or use the Product to develop any product having the same primary function as the Product.
4.4. Limitations on alteration
You may not:
(a) modify the Product or create any derivative work of the Product or its accompanying documentation. Derivative works include but are not limited to translations; or
(b) alter any files or libraries in any portion of the Product.
4.5. Limitations on copying
You may not copy any part of the product except to the extent that the licensed use inherently demands the creation of a temporary copy stored in the computer memory and not permanently affixed on storage medium.
Kajeeva Pty Ltd trading as Beakon or its subsidiaries, affiliates, and suppliers retain all rights, title and interest, including all copyright and intellectual property rights, in and to, the Product and all copies thereof.
6. Warranties and exclusions
6.1. Provisions of the Competition and Consumer Act 2010 and other laws in force from time to time in Australia may imply guarantees, warranties, conditions, and impose obligations on Kajeeva Pty Ltd trading as Beakon and its subsidiaries, affiliates, and suppliers (“Implied Terms”). If these Implied Terms apply, Kajeeva Pty Ltd trading as Beakon’s liability will be limited at its option to resupply, repair or replacement of the Product or the cost of such resupply, repair or replacement, to the extent permitted by law.
6.2. Unless otherwise explicitly agreed to in writing by Kajeeva Pty Ltd trading as Beakon, subject to the Implied Terms, all representations, guarantees, conditions and warranties of any nature are expressly excluded.
6.3. Nothing in this clause excludes, restricts or modifies your rights under an Implied Term.
7.Exclusion of damages
Subject to any Implied Term, Kajeeva Pty Ltd trading as Beakon, its directors, officers, employees, or agents will not be liable to you or any other party for indirect, consequential, special, incidental, punitive or exemplary damages of any kind (including lost of revenues or profits or loss of business) arising in connection with these Terms, the Product, any software for the Product or any support services for the Product, whether based on contract, tort, statute, or any other legal theory.
8. Limitation of liability and remedies
To the extent that the applicable jurisdiction limits Kajeeva Pty Ltd trading as Beakon’s ability to disclaim any implied warranties, this disclaimer shall be effective to the maximum extent permitted.
9. Licensee indemnity
You will indemnify Kajeeva Pty Ltd trading as Beakon, its directors, officers, employees, agents and contractors in full against any liability, loss, damages, costs and expenses as a result of or in connection with your use of the Product, including but not limited to, any modification by you of the Product which causes the Product to infringe the intellectual property rights of a third party.
10. Variation of Terms
Kajeeva Pty Ltd trading as Beakon reserves the right to amend these Terms from time to time without notice to you and you will be subject to the Terms in force at the time you purchase
the Licence for the Product or download the Product whichever is applicable.
Without prejudice to any other rights, Kajeeva Pty Ltd trading as Beakon may terminate this Agreement immediately and without further notice if you fail to comply with the Terms of this Agreement. In such event, you must destroy all copies of the Product.
12. General provisions
12.1. Any provision of, or the application of any provision of this Agreement, which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.
12.2. Any provision of, or the application of any provision of this Agreement which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
12.3. The failure, delay, relaxation or indulgence on the part of a part in exercising, in part or whole, any power, right or remedy conferred upon that party by these Terms shall not operate as a waiver of that power, right, or remedy.
12.4. This Agreement contains the entire Agreement between the Parties and supersedes any previous understandings, commitments or agreements, oral or written.
12.5. If a clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this Agreement.
12.6. This Agreement shall be governed by and construed in accordance with the laws of New South Wales.
SCHEDULE 1 PRODUCT Name of Product: Beakon
Details of Product: Online
Details of Product: Online work, health, safety, risk, and compliance software