This Click Studios Customer Agreement (the “Agreement”) is between you and Click Studios (SA) Pty Ltd (ABN 68 552 128 552) (“Click Studios”). If you are agreeing to this Agreement not as an individual but on behalf of your company, then “Customer” or “you” means your company, and you are binding your company to this Agreement. Click Studios may modify this Agreement from time to time, subject to the terms in Section 15 (Changes to this Agreement) below.
By clicking on the “I agree” (or similar button) that is presented to you at the time of your Order, or by using or accessing Click Studios products, you indicate your assent to be bound by this Agreement.
This End-User Software License Agreement (the “Agreement”) is made and effective,
BETWEEN: [Click Studios] (the "Licensor")
AND: [You] (the "Licensee")
WHEREAS, Licensor has developed certain computer programs and related documentation and desires to grant Licensee a license to use the Software.
WHEREAS, Licensee wishes to use the Software under the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, Licensee and Licensor hereby agree as follows:
"Computer" means a computer device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.
"Internal Network" means a private, proprietary network resource accessible only by employees and individual contractors (i.e., temporary employees) of a specific corporation or similar business entity. Internal Network does not include portions of the Internet or any other network community open to the public, such as membership or subscription driven groups, associations and similar organizations.
"Permitted Number" means one (1) unless otherwise indicated under a valid license (e.g., volume license) granted by Click Studios.
"Software" means (a) all of the information with which this agreement is provided, including but not limited to (i) Click Studios or third party software files and other computer information; (ii) related explanatory written materials and files ("Documentation"); and (iii) any modified versions and copies of, and upgrades, updates and additions to, such information, provided to you by Click Studios at any time, to the extent not provided under a separate agreement (collectively, "Updates").
Licensor hereby grants to Licensee a perpetual, non-exclusive license to use the Software and Documentation (collectively, the "Software System"), subject to the terms and conditions hereinafter set forth. This License is effective when executed by both parties and the license granted to the Software remains in force until Licensee stops using the Software or until Licensor terminates this License because of Licensee's failure to comply with any of its terms and conditions.
[PER SEAT/USER LICENSING]
Licensor hereby grants to Licensee a nonexclusive license to install the Permitted Number of copies of the Software on the Permitted Number of Computer server(s) only for use of the Software initiated by an individual through commands, data or instructions (e.g., scripts). The total number of users (not the concurrent number of users) permitted to use the Software on such Computer server(s) may not exceed the Permitted Number. No other network installation or access (either directly or through commands, data or instructions) is permitted, including, but not limited to: (i) for enabling web hosted workgroups or services available to the public, (ii) by any individual or entity to use, download, copy or otherwise benefit from the functionality of the Software unless licensed to do so by Click Studios, (iv) as a component of a system, workflow or service accessible by more than the Permitted Number of users.
LICENSEE'S RIGHTS AND OBLIGATIONS
Licensee may either:
A. Make one copy of the Software solely for backup or archival purposes, or
B. Transfer the Software to a single hard disk, provided Licensee keep the original solely for backup or archival purposes.
The Software and Documentation are protected by Australian copyright laws and international treaties. Licensee must treat the Software and Documentation like any other copyrighted material - for example a book. Licensee may not:
A. Copy the Documentation
B. Copy the Software except to make archival or backup copies as provided above
C. Modify or adapt the Software or merge it into another program
D. Reverse engineer, disassemble, decompile or make any attempt to discover the source code of the Software
E. Sublicense, rent, lease or lend any portion of the Software or Documentation.
ENTERPRISE, GLOBAL & HIGH AVAILABILITY LICENSEE RIGHTS
Enterprise, Global and High Availability licenses differ to Per Seat/User Licensing as follows:
A. Enterprise License entitles an unlimited number of users accessing the software from one given production installation
B. Global License Entitles an unlimited number of users accessing the software, from an unlimited number of production installs within the same company structure - no subsidiary companies, partner companies, or alternate government departments are permitted to use this license
C. High Availability License entitles a secondary production install, for Disaster Recovery purposes – either in Active/Passive or Active/Active configuration. If purchased with a Global License, then unlimited installs of the High Availability module are also permitted, but only within the same company structure - no subsidiary companies, partner companies, or alternate government departments are permitted to use this license
3. LIMITED WARRANTY & Disclaimer
The Licensor warrants that the media on which the Software is recorded and the User Documentation provided with it are free from defects in materials and workmanship under normal use for a period of 90 days from the date of your original purchase. Except for the limited warranty described above, the Software is sold 'as is', and you are assuming the entire risk as to its quality and performance. It is your responsibility to verify the results obtained from the use of the Software.
If during the 90-day limited warranty period, you discover physical defects in the media on which the Software was recorded or in the User Documentation, the Licensor will replace them at no charge to you, provided you return the item to be replaced with proof of purchase to the Publisher. THIS IS YOUR SOLE REMEDY. IN NO EVENT WILL THE LICENSOR BE LIABLE TO ANY PERSON FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES, EVEN IF THE PUBLISHER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Some jurisdictions do not allow the exclusion or limitation of implied warranties or of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. This warranty gives you specific legal rights and you may also have other rights that vary from state to state. In the event that any of the above limitations or exclusions is held to be unenforceable, the Licensor's total liability shall not exceed the amount of the License fee you paid.
Neither party shall be under any liability for any loss or for any failure to perform any obligation hereunder due to causes beyond its control including without limitation industrial disputes of whatever nature, power loss, telecommunications failure, acts of God, or any other cause beyond its reasonable control.
4. Representations and Warranties
Licensor hereby represents and warrants to Licensee that:
A. Licensor is the owner of all right, title and interest, including copyright, in all the Licensed Materials, or has the authority to enter into this Agreement on behalf of the owner.
B. Licensor has not granted any rights or licenses to the Licensed Materials that would conflict with Licensor's obligations under this Agreement.
C. Licensor is fully aware of Licensee's business requirements and intended uses for the Software and the Software shall satisfy such requirements and is fit for such intended uses.
D. Licensor will not enter into any agreement with any third party which would affect Licensee's rights under this Agreement, or bind Licensee to any third party, without Licensee's prior written consent.
E. Licensee's use of the Licensed Materials as authorized by this Agreement will not infringe any existing copyright, trade secret, patent or trademark rights of any third party.
Licensor shall have the right to immediately terminate this License if Licensee fails to perform any obligation required of Licensee under this Agreement or if Licensee becomes bankrupt or insolvent. This License Agreement takes effect upon Licensee's use of the software and remains effective until terminated. Licensee may terminate it at any time by destroying all copies of the Software and Documentation in its possession. It will also automatically terminate if Licensee fails to comply with any term or condition of this License Agreement.
6. Return or Destruction of Software Upon Termination
Upon termination of this License, Licensee shall return to Licensor or destroy the original and all copies of the Software including partial copies and modifications. Licensor shall have a reasonable opportunity to conduct an inspection of Licensee's place of business to assure compliance with this provision.
7. Title to Software
Licensor retains title to and ownership of the Software and all enhancements, modifications and updates of the Software.
8. Modification and Enhancements
Licensee will make no efforts to reverse engineer the Software, or make any modifications or enhancements without Licensor's express written consent.
9. Software Installation and Acceptance
Licensor shall use reasonable efforts to deliver the Licensed Copies of the Software and Documentation to the Licensee in reasonable time. Licensee shall have 90 days from the Delivery Date to perform acceptance testing. Licensee's Acceptance of the Software shall occur at the earlier of Licensee's operational use of the Software, or the expiration of 90 days from the Delivery Date without the provision of notice by Licensee to Licensor of any Error(s). If Licensee provides notice to Licensor of any Error(s) and Licensor verifies the alleged Error(s), the Software shall be accepted upon Licensor's correction of such Error(s).
Licensor shall not refer to the existence of this Agreement in any press release, advertising or materials distributed to prospective customers, without the prior written consent of Licensee.
11. Licensor's Proprietary Notices
Licensee agrees that any copies of the Software or Documentation which it makes pursuant to this Agreement shall bear all copyright, trademark and other proprietary notices included therein by Licensor and, except as expressly authorized herein, Licensee shall not distribute same to any third party without Licensor's prior written consent. Notwithstanding the preceding sentence, Licensee may add its own copyright or other proprietary notice to any copy of the Software or Documentation which contains modifications to which Licensee has ownership rights pursuant to this Agreement.
If any provision of this Agreement is held invalid or otherwise unenforceable, the enforceability of the remaining provisions shall not be impaired thereby.
13. No Waiver
The failure by any party to exercise any right provided for herein shall not be deemed a waiver of any right hereunder.
14. Return Policy
As part of our commitment to customer satisfaction, it is our customary business practice to provide reasonable support during the evaluation phase of Click Studios’ software. If during this evaluation phase our software is deemed not suitable, it can be removed from your systems with no further commitment to purchase software from Click Studios. If after purchase a fault is found which cannot be adequately resolved by Click Studios within reasonable time frame, a full refund for amount purchased can be obtained. We will not accept returns after the 30-day return period. You understand that Click Studios may change this practice in the future in accordance with Section 15 (Changes to this Agreement).
15 Changes to this
We may update or modify this Agreement from time to time, including any referenced policies and other documents. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (by, for example, sending an email to the billing or technical contact you designate in the applicable Order, posting on our blog, or in the Product itself). If we modify the Agreement during your License Term or Subscription Term, the modified version will be effective upon your next renewal of a License Term, Support and Maintenance term, or Subscription Term, as applicable. In this case, if you object to the updated Agreement, as your exclusive remedy, you may choose not to renew, including cancelling any terms set to auto-renew. With respect to No-Charge Products, accepting the updated Agreement is required for you to continue using the No-Charge Products. You may be required to click through the updated Agreement to show your acceptance. If you do not agree to the updated Agreement after it becomes effective, you will no longer have a right to use No-Charge Products. For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.
16. Complete Agreement
This Agreement sets forth the entire understanding of the parties as to its subject matter and may not be modified except in a writing executed by both parties.