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v1.0 - 01.02.2023
DEFINITIONS
Defect: any of the following whether directly or indirectly:
of unmerchantable quality;
inoperative;
not fit for any particular purpose;
non-compliant with:
agreed specifications, or
applicable laws, or
these terms
a material:
fault
defect
unsightliness; or other shortcoming in any aspect including materials, workmanship, engineering, structure, operation, packaging, documentation or specification regardless of cause. 1.2, 1.3
Emergent: EMERGENT STUDIOS DIGITAL PTY LTD [ACN 167741675] and its administrators, executors, heirs, successors and permitted assigns and substitutes.
Force Majeure Event: any event beyond the reasonable control or prevention of the nonperforming party including:
external telecommunications failures;
plague, pestilence, drought, fire, flood, earthquake, bushfire or act of God and any other natural disaster;
riot, act of terrorism, war, civil disorder, rebellion or revolution;
strikes, lockouts and labour disputes (but excluding a facility specific strike of any other type of industrial action by the Personnel of a party claiming force majeure); and
epidemics, quarantine restrictions, outbreak of disease or any travel restrictions or bans (including bans on non-essential travel) issued by the World Health Organisation or any governmental authority.
Harmful Code: any computer program, virus, unsolicited email, bomb, trojan horse, trap doors, back doors, easter eggs, worms, time bombs, cancelbots or other malware or other code (including source and object code) that is harmful, destructive, disabling or which assists in or enables theft, unauthorized access to or alteration of data or the Software or which may impair, deny or otherwise adversely affect the use of the Software.
IP Rights: each of:
all present and future intellectual property rights of any nature whatsoever conferred by statute, common law, equity or otherwise including without limitation: copyright; designs (including registered designs); patents; moral rights; trade marks; trade secrets; circuit layouts; business names; domain names; inventions; and all other intellectual property as defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation of July 1967, whether or not registered or registrable;
all other rights of a like nature to the above rights; and
any present and future common law and statutory rights and remedies including choses in action relating to the above rights, throughout the world unless otherwise stated.
Modify: add-to, alter, adapt, change, convert, compile, de-compile, delete-from, disassemble, edit, enhance, improve, modify, reproduce, re-arrange, reverse-engineer, tamper with, transpose or translate.
Software: means the DOCOpack Plugin supplied by Emergent from time to time including:
plugins, add-ons and other functionality;
new versions and modifications of same;
Terms: these software user terms.
Subscription: User's right to use the Software subject to these Terms.
Subscription Fees: the fees required to be paid by User from time to time, if any.
Transfer: transfer, sell, assign, novate, sub-licence, Encumber, declare a trust over, or otherwise dispose or Deal With any legal or equitable interest in the subject matter.
User: any user of Software from time to time.
ACCEPTANCE
By downloading, installing or continuing to use the Software, User acknowledges and agrees that User:
has had sufficient chance to read and understand these Terms;
to be bound by these Terms as varied from time to time; and
that the Software is in beta phase.
These Terms:
govern User downloading, installing, accessing and use of the Software.
comprise a binding contractual agreement between User and Emergent; and
are in addition to any other terms and conditions applicable to User with respect to User's use of the Software;
commence on the earlier of the date User:
download;
install;
access or
use,
any part of the Software.
User must:
use the Software only in accordance with:
any Software manual or help archive;
Emergent' reasonable directions relating to use of the Software; and
comply with the hardware requirements (if any) as specified by Emergent, from timeto time.
comply with the hardware requirements (if any) as specified by Emergent, from time to time.
At the end of the Subscription term, User must:
cease and desist using the Software; and
ensure that all of User' instance of the Software has been deleted or permanently removed from the hardware or server on which it has been stored.
FORBIDDEN CONDUCT
User must not:
Modify or authorise, permit or allow any person to Modify the Software;
reproduce, duplicate or copy the App save as may be permitted by these Terms of Use;
license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Software;
use any part of the Software for commercial purposes;
access the Software without authority;
interfere with, damage or disrupt:
the Software; or
any equipment or network on which the Software is stored;
create internet "links" to the Software or "frame" or "mirror" any Software on any other server or wireless or internet-based device;
build a competitive product or service to the Software;
build a product using similar ideas, features, functions or graphics of the Software;
copy any ideas, text, features, functions or graphics of the Software;
use the Software to send spam or otherwise duplicative or unsolicited messages;
launch an automated program or script, including, but not limited to, Harmful Code, web spiders, web crawlers, web robots, web ants, web indexers, bots or any program which may make multiple server requests per second or unduly burdens or hinders the operation and/or performance of the Software; or
use the Software in a way or for a purpose that:
constitutes a breach of the Law;
is fraudulent, criminal or unlawful;
is obscene, indecent, pornographic, vulgar, profane, racist, sexist, discriminatory, offensive, derogatory, harmful, harassing, threatening, embarrassing, malicious, abusive, hateful, menacing, defamatory, untrue, annoying, political or violates a third party's privacy;
constitutes impersonation of any third party or misrepresents a relationship with any third party;v
is contrary to any direction given by the [OWNER] with respect to the Software;
involves User's use, delivery or transmission of Harmful Code; or
tends to harm the Software in any way.
USER ACCOUNTS AND INFORMATION
User warrants and continues to warrant that:
all information provided by User to the Software including as to date of birth, identification and place of residence is true and correct;
User's use of the Software does not constitute a breach of the law to the User's knowledge;
User's use of the Software will be in compliance with these Terms; and
User has full legal right, authority and capacity to enter into these Terms.
User must promptly provide to Emergent all reasonable:
further information; and
proof of information;
upon request.
User must:
not authorise, permit or allow any third party to use User's Software account;
take all reasonable steps to keep User's user identification code, password or any other piece of information provided to User as part of the Software; and
must treat such information provided by the Software as confidential, and User must not disclose it to any third party.
LINKED PARTIES AND ADVERTISING
User acknowledge and agree that the Software may contain or the Owner may provide to User:
links to sites on the world wide web owned and operated by third parties and which are not under Emergent's control (Linked Sites);
information with respect to third party businesses; and
third party advertising and marketing, (individually and collectively, Linked Parties)
In relation to Linked Parties:
Emergent provides the links and information to Linked Parties as a convenience to User;
the existence of a link to Linked Party does not imply any endorsement by Emergent of:
such Linked Party; or
products being offered by the Linked Party (Linked Products);
is not responsible for the material contained on Linked Sites; and
Emergent gives no warranty, guarantee or representation with respect to the accuracy, reliability or timeliness of the information contained on Linked Sites.
User should seek User's own independent financial and legal advice before deciding to acquire any products from a Linked Party.
Emergent reserves the right to charge User a higher fee (as notified from time to time) for a version of the Software that does not contain or refer to Linked Parties, Linked Sites and/or Linked Products.
DELAYS AND INTERRUPTION
Emergent may suspend the operation of, and/or User's access to, the Software without notice in Emergent's discretion if:
if the User:
fails to pay the Subscription Fees;
breaches these terms; or
is reasonably suspected by Emergent to have breached these terms.
reasonably required to maintain and upgrade the Software;
continuation of provision of the Software:
would constitute a breach of the Law; or
is practically impossible due to Force Majeure Event; or
at any time for any reason with 30 days' notice to User.
Emergent terminate a User's access to, the Software without notice in Emergent's discretion if the User:
breaches clause 3.1; and
fails to rectify a breach of a clause other than clause 3.1 within 7 days after receiving notice from Emergent reasonably specifying such breach.
Emergent may:
discontinue;
Modify or update; and
impose restrictions on the length and manner of User usage of any part of, the Software at any time without notice.
If Emergent exercises Emergent's rights under clause 6.3 such act is deemed to be the giving of a notice for the purposes of clause 12.9.
INTELLECTUAL PROPERTY
All ownership right, title and interest including all IP Rights in the Software vests at all times in Emergent.
User acknowledges and agrees that the Software:
is proprietary to Emergent; and
comprises works of original authorship, including compiled information containing Emergent's selection, arrangement, coordination and expression of such information or pre-existing material it has gathered or assembled, confidential and trade secret information, and information that has been created, developed and maintained by Emergent at considerable expense of time and money, such that misappropriation or unauthorised use by User or others for commercial gain would unfairly (and may irreparably) harm Emergent.
Nothing in these Terms affects ownership of third party software incorporated in the Software.
Subject to:
compliance with these terms; and
User paying any applicable Subscription Fees, Emergent grants to User a temporary, non-exclusive, worldwide, royalty-free, irrevocable licence to use the Software for design and production of 2-dimensional and/or 3-dimensonal images, drawings, plans, model and other visual representations.
User must not:
authorise, permit or allow any third party use the Software;
distribute, rent, lease, or license out the Software to any person;
Modify the Software; or
authorise, permit or allow any person to Modify the Software.
allow the Software to be combined with or incorporated into other software except as expressly permitted by Emergent or
release the Software on any public communication network including the Internet.
User is liable for any conduct by any unauthorised third party's use of the Software:
with User's knowledge or consent; or
due to User's failure to reasonable secure login and/or password information.
WARRANTIES
To the extent permitted by law, Emergent, disclaims all conditions, right, liability or warranty (express and implied) including, but not limited to warranties of:
being Defect-free;
merchantability;
compatibility with any particular hardware or software;
completeness, accuracy, quality, reliability, timeliness or otherwise of any information;
usefulness and functionality including in the absence of third party software;
quiet enjoyment;
fitness for a particular purpose;
quiet enjoyment;
title;
unauthorised third party access to and damaging of User's data, software, websites, computers or networks;
User acting, or failing to act, on any information contained on or referred to in the Software or Linked Sites;
and
(x) Linked Sites, Linked Parties and Linked Products.
the lawfulness of the Software or the services provided under or with respect to the Software; and
non-infringement of IP Rights, with respect to the Software.
User agrees and acknowledges that:
use of Software, Linked Sites and Linked Products is at User's own risk including in relation to any information or products contained in the Software; and
Software is provided "as is" and "as-available," with all Defects;
User has made User's own enquiries and obtained User's own advice (including financial advice) before using the Software or entering into any transaction on the basis of or in reliance upon the Software. and
no oral or written information or advice given by Emergent creates any other warranties or in any way increases the scope of Emergent's obligations to User.
Emergent is not obliged to rectify any Defect.
LIABILITY AND DAMAGES
Emergent is not liable for any loss or damage caused by:
Emergent suspension of provision of the Software;
Defects in the Software;
viruses, worms, trojan horses, or other undesirable data or software;
User acting, or failing to act, on any information contained on or referred to in the Software and/or any Linked Site;
User using or acquiring, or User's inability to use or acquire:
any product contained or referred to in the Software; or
any Linked Product;
acts of unauthorised third parties to obtain access to and damage Emergent's or User's data, websites, computers, or networks;
any Defect in or unavailability of third party services and content that may be accessed from or relied upon as part of the Software;
any error in any information given to Emergent by User; or
User acting unlawfully, wilfully or negligently.
Emergent is not liable to User in respect of a third party alleging that the Software infringes the IP Rights of such third party if:
User does not notify Emergent of the other person's claim or of infringement of copyright within seven days after becoming aware of the claim;
Emergent's ability to defend the claim has been prejudiced by User's non-compliance with any of its obligations under these Terms;
User does not give Emergent reasonable assistance in defending the claim;
the claim has arisen because of the use of the Software in combination with equipment, materials or computer programs not supplied or approved by Emergent; or
User does not permit Emergent to have control of the defence of the claim and all related settlement negotiations.
Emergent's liability whether at common law, in equity, pursuant to statute or otherwise is limited to:
the re-provision of the Software; or
refund of the Subscription Fee (pro rata) paid by User.
A party is not liable to another party in respect of claims for direct or indirect loss of profit, loss of business opportunity or goodwill, loss of production, economic loss, loss of revenue, indirect, special or punitive damages, third party claims or any indirect or consequential liabilities or losses in connection with or arising out of these Terms.
Nothing in these Terms excludes, restricts or modifies any condition, warranty, right or liability implied in these Terms or protected by law to the extent that such exclusion, restriction or modification would render these Terms or any provision of these Terms void, illegal or unenforceable.
PRIVACY POLICY
has read and understood; and
agrees to comply with the Emergent Privacy Policy as amended from time to time.
NOTICES
To be valid and effective as a notice for the purposes of this agreement, any notice given by one party to another party:
must be in written English;
must be served:
personally; or
by email,
to the other party's usual address as given from time to time;
For the purposes of clause 11.1, a notice is deemed to be served:
if served personally, on the date it is received by the other party; and
if served by email, at the time of receipt as calculated in accordance with section 14 of the Electronic Transactions Act 1999 (Cth).
MISCELLANEOUS
RELATIONSHIP OF THE PARTIES
These Terms must not be construed as creating any agency, legal representative, partnership, joint venture or other form of joint enterprise between the parties.
Neither party has authority to contract for or bind the other in any manner whatsoever.
LIABILITY FOR THIRD PARTIES
Unless otherwise stated in these Terms, if a provision of these Terms obliges a party ("First Party") not to do something, then:
the First Party is also deemed to be under an obligation not to permit, procure, knowingly-assist or allow any third party to do that thing; and
the doing of such thing by the First Party's:
Personnel; and/or
Related Party,
is deemed to be act of the First Party for the purposes of these Terms.
NO WAIVER
Failure or omission by a party at any time to enforce or require strict or timely compliance with any provision of these Terms does not affect or impair that provision in any way or the rights of such party to avail itself of the remedies it may have in respect of any breach of any such provision.
A waiver of any right, power or remedy under this document must be in writing signed by the party granting it.
A waiver of any breach by a party shall not be or be deemed a waiver of any continuing or recurring breach.
The failure by a party to exercise a right or power or enforce a remedy under these Terms fully or at a particular time, does not prevent such party from completing the exercise or enforcement later or starting to exercise or enforce it later.
A party is not liable for loss caused by such party exercising, enforcing, delaying in exercising or enforcing, attempting to exercise or enforce or not exercising or enforcing, a right, power or remedy under these Terms.
VARIATION
Emergent may vary these Terms with 30 days' notice to User.
If:
Emergent gives notice under clause 12.9; and
User, acting reasonably, concludes the variation causes material detriment to User,User may:
terminate the relevant Subscription immediately with notice to Emergent; and
is entitled to a pro-rata refund of the Subscription Fees.
Any variation made under clause 12.9 replaces any provision of these Terms to the extent that that provision is inconsistent with a provision of the variation.
UNLAWFULNESS
These Terms must be interpreted so that it complies with the Law.
If any provision of these Terms is invalid, unlawful, void, voidable or unenforceable:
it will be taken to have been severed without affecting any other of the provisions of these Terms;
then such provision must be read down so as to give it as much legal effect as possible; and
the parties agree to do all things necessary to rectify these Terms insofar as it is necessary to give legal effect including:
amending any provision of these Terms; and
executing a new agreement on substantially the same terms.
ASSIGNMENTS AND TRANSFERS
A User may not, and must not purport or attempt to, Transfer such party rights, remedies, powers, duties or Obligations under these Terms except with the prior written consent of each of the other parties.
DURATION OF PROVISIONS
The Surviving Clauses (if any), terms, conditions, covenants, rights, entitlements, duties, warranties, provisions, undertakings, and obligations contained in these Terms do not merge upon the end of these Terms but to the extent that they:
have not been fulfilled and satisfied before;
are capable of having effect after; or
have accrued before (including the right to sue for damages or specific performance),the end of these Terms, remain in full force and effect notwithstanding the end of these Terms for any reason.
WITHOUT PREJUDICE
Unless otherwise stated, the rights, remedies and obligations provided in these Terms are cumulative and do not adversely affect any other rights, remedies or obligations described in these Terms or otherwise provided by law.
GOVERNING LAW
These Terms is governed by the laws of Victoria, Australia, except:
Victoria, Australia's Jurisdiction's choice of law rules; and
to the extent to which they are overridden by Australian Commonwealth laws.
The parties submit to the jurisdiction of the courts of the Jurisdiction.
DEFINED TERMS AND INTERPRETATION
In this document including the background, execution pages, any appendices and/or schedules, except where the context otherwise requires:
these Terms includes any schedules, annexures, appendices and attachments to this document;
a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, this document;
another grammatical form of a defined word or expression has a corresponding meaning;
the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
the singular includes the plural and vice versa, and a gender includes other genders;
a reference to a party is to a party to this document, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes;
a reference to anything includes any part of that thing and a reference to a group of things or persons includes each thing or person in that group;
a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this document or any part of it; and
any discretion (including where a party "may" do anything) is sole, unfettered and absolute unless otherwise stated.