LICENSED APPLICATION END USER LICENSE AGREEMENT
This End User Licence Agreement (‘EULA‘) is an agreement between you and Airtec Corporation Pty Limited ABN 14 122 444 277, Airtec Connect Pty Limited ABN 53 136 423 875 and its affiliates (‘Airtec‘, ‘we‘, ‘us‘ or ‘our‘). This EULA governs your use of any mobile application offered, supplied by Airtec and any related software (‘Airtec App‘). Airtec agrees to licence the Airtec App to you personally or on behalf of your employer (‘you‘ or ‘your‘) only if you accept all the terms of this EULA. By downloading or using in any way the Airtec App, you accept and agree to be bound by all of the terms of this EULA. If you do not agree with any of the terms of this EULA, do not download, install, or use in any way the Airtec App.
1. The licence
Granting of licence
Airtec grants you a revocable, non-exclusive, non-transferable licence to download, install and use the Airtec App in accordance with the terms of this EULA.
Scope of licence
You agree to only use the Airtec App on an Apple or Android mobile device owned by you or your employer. You agree to only use the Airtec App in connection with products manufactured and/or supplied by Airtec. You agree not to distribute or make the Airtec Available over a network where it could be used by multiple devices at the same time. You agree not to modify, display, adapt, translate, loan, distribute, prepare derivative works from, decompile, reverse-engineer, disassemble or otherwise attempt to derive source code from the Airtec App. You agree not to publish, redistribute, sublicence or sell the Airtec App or any information or material associated with the Airtec App. You agree not to rent, lease or otherwise transfer your rights to the Airtec App. You agree to only use the Airtec App for its intended and lawful purposes.
Intellectual property rights
The Airtec App is licenced, not sold, to you for use pursuant to the terms of this EULA. All rights not expressly granted to you are reserved to Airtec. You acknowledge that Airtec owns all rights, title and interest, including without limitation all intellectual property rights, in and to the Airtec App, portions thereof, or any information or material provided through or in connection with the Airtec App. Your rights to use the Airtec App shall be limited to those expressly granted in this EULA. All rights not expressly granted to you are reserved by Airtec. ‘Intellectual Property Rights’ means any and all:
- current and future registered and unregistered rights in respect of copyright, designs, semiconductor or circuit layouts, trade marks, business names, trade secrets, know-how, confidential information, patents, inventions and discoveries
- applications for grant all patents, plant breeders right, copyright;
- other rights of a similar nature arising (or capable of arising) under statute or at common law in the Commonwealth of Australia or anywhere else in the world; and
- other intellectual property as defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation 1967.
2. No Warranty
The Airtec App is provided by Airtec ‘as is’, with no warranties whatsoever. Airtec expressly disclaims to the fullest extent permitted by law, all express, implied, and statutory warranties, including without limitation the limitation the warranties of merchantability, fitness for a particular purpose, and non-infringement of proprietary rights. Mobile applications are inherently complex, and the software in the Airtec App may not be free of errors. The Airtec App is provided with all faults and the entire risk as to satisfactory quality, performance, accuracy and effort is with you. Airtec disclaims any warranties regarding the security, reliability, timeliness and performance of the software. You understand and agree that you download and use the Airtec App at your own discretion and risk and that you will be solely responsible for any damages to your mobile device or loss of data that results from the download or use of the Airtec App.
3. Limitation of Liability
If under the Australian Consumer Law or any other law any terms which apply to this EULA cannot be legally excluded, restricted or modified then those terms apply only to the extent permitted by law.
All terms, which would otherwise be implied by law or otherwise, are excluded except as stated in this EULA.
To the extent permitted by law, Airtec’s liability for any breach off the EULA, any condition or warranty implied by the provisions of the Australian Consumer Law, and any other express or implied warranty, is limited to and will be completely discharged by any one of the following as determined by Airtec in its absolute discretion:
- the replacement of the Airtec App;
- the repair of the Airtec App;
- the payment of the cost of replacing the Airtec App; or
- the payment of the cost of having the Airtec App repaired.
Except as expressly provided in this EULA and to the extent permitted by law, Airtec is not liable to you for:
- any claim made under, or in connection with, the EULA, in tort, under statute, in equity or otherwise in respect of defects whatsoever in the Airtec App for the loss or damage to you or property arising from or caused from such defects;
- any indirect, special or consequential loss or damage of any nature whatsoever resulting from or caused in any way by the Airtec App where such loss or damage includes any loss of income, profit, business, goodwill or reputation.
You will indemnify and keep indemnified and hold Airtec harmless from and against all liabilities, losses, damages, costs or expenses incurred or suffered by Airtec, and from and against all actions, proceedings, claims or demands made against Airtec, arising from one or more of the following:
- any claim or demand made against Airtec arising from or contributed to by a breach of this EULA or the negligence or other default, act or omission by you;
- any claim or demand made against you in connection with this EULA;
- a breach or default by you under this EULA;
- your failure to comply with any laws, rules, standards, regulations or instructions applicable in relation to the use of the Airtec App;
- any negligence or breach of duty by you in relation to the Airtec App in relation to the Airtec App including, without limitation:
- misuse, faulty installation or updates;
- any other act or omission by you in connection with the Airtec App or this EULA
- Your obligation to indemnity under this clause will be proportionately reduced to the extent that:
- the act or omission of Airtec contributed to; or
- Airtec failed to use reasonable endeavours to prevent or mitigate any actions, proceedings, claims, demands, losses, damage, penalties, costs and expenses which Airtec may suffer, incur, or for which Airtec may become liable.
You agree to indemnify and hold harmless Airtec and its officers from any claim or demand made by any third party due to or arising directly or indirectly out of your conduct or in connection with your use of the Airtec App, any alleged violation of these terms, or any alleged violation of any applicable law or regulation. Airtec reserves the right, at its own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, but doing so shall not exclude your indemnity obligations.
Airtec reserves the right to modify or change this EULA from time to time without notice to you. The latest version of this EULA will always be available on our website. Airtec also reserves the right to change, modify, update, suspend or discontinue, temporarily or permanently, the Airtec App from time to time at its discretion without notice to you. Your election to continue use of the Airtec App, after the date of posting of such modifications to the EULA or to the Airtec App constitutes acceptance of those modifications. If you do not agree with the modifications, do not use the Airtec App.
6. Term and termination
This EULA is effective as soon as you download, install or use the Airtec App and shall continue until it is terminated by Airtec or you, as provided for under this EULA. Airtec may, in its sole discretion, at any time and for whatever reason, suspend or terminate this EULA with or without prior notice. This EULA will terminate immediately, without prior notice from Airtec if you fail to comply with any provision of this EULA. You may also terminate this Agreement by deleting the Airtec App and all copies thereof from your mobile device. Upon termination of this EULA, you must cease all use of the Airtec App and delete all copies of the Airtec App from your mobile device.
Amendment This EULA may not be amended or supplemented except by a written document executed by all parties.
Entire agreement This EULA records the entire agreement between Airtec and you as to its subject matter. Any prior negotiations, agreements, arrangements, representations and understandings related to the subject matter of this EULA are superseded by this EULA.
Governing law The EULA is governed by the laws of South Australia and the Commonwealth of Australia.
Jurisdiction The parties submit to the jurisdiction of the Courts of South Australia and the Commonwealth of Australia. Any proceeding brought in the Federal Court of Australia must be instituted in its South Australian District Registry.
Severance Any provision of this EULA that is invalid, unenforceable or illegal must be read down to the extent necessary to avoid that effect. If that is not possible, that provision must be excluded from this EULA but only to the extent necessary to avoid that effect. All other provisions of this EULA continue to be valid and enforceable.
[For Apple only: Apple as a third party beneficiary You acknowledge and agree that Apple and its subsidiaries are third party beneficiaries of this EULA and that your acceptance of these terms (and this end user licence agreement) gives Apple (and you accept that Apple has) the right to enforce the EULA against you as a third party beneficiary of the agreement.]