ABE Services Pty Ltd
End User Licence and Data Management Service Agreement
1. Your agreement with us
(a) This end user licence and data management services agreement ("agreement") constitutes a valid and binding agreement between ABE Services Pty Limited (together with its affiliates, successors and assigns) ("we" or "us") and you ("you" or "your" or "yourself") for:
(i) the use of our software known as CDMS Software (the "CDMS Software"); and
(ii) the provision of compliance data management services including, without limitation:
(a) functionality for the management and collation of on-the-job compliance information and construction data related to product or service compliance;
(b) functionality for the preparation of Inspection and Test Plans ("ITP"s);
(c) templates for Inspection and Test Plans, checklists and the like;
(d) reporting formats;
(e) functionality for downloading ITPs and the like to Personal Digital Assistants;
(f) functionality for uploading of recorded compliance from Personal Digital Assistants;
(g) functionality for viewing and printing compliance data management reports; and
(h) functionality for providing information extracts.
(b) By installing and using the CDMS Software or using the Services, you agree to be bound by the terms of this agreement. If you do not agree to the terms of this agreement, do not install or use the CDMS Software.
(c) This agreement begins when you commence a download of the CDMS Software onto your personal computer or when you (or your delegate) log on to use the Services for the first time, whichever is the earliest.
2. Licence Grant
(a) Subject to the terms of this agreement, we grant you a limited, non-exclusive, personal, non-sublicensable, non-assignable licence for:
(i) You and your delegate(s) to handle administration and set up for the Checkers and Other Users;
(ii) Checkers to download, install and use the CDMS Software, including any online or enclosed documentation, and any future programming fixes, updates and upgrades that may be provided to you onto the Checker's computer(s) and/or PDAs for your and the Checker's sole use; and
(iii) other users authorised by you at your discretion ("Other Users") to download and use data and information entered by Checkers using the CDMS Software, to the extent of the then current availability of the CDMS Software.
(b) In order to use the CDMS Software you are required to subscribe to the Services and register yourself, your Checkers and Other Users as CDMS Software user(s) (via www.abeservices.com.au) and
(c) You acknowledge and agree that we have no obligation to make available to you any subsequent versions of the CDMS Software.
(d) We reserve the right to modify the CDMS Software with or without notice.
(e) "Checkers" means those persons who you have authorised and registered as being suitably qualified and experienced to access and use the Services.
3. Data Management Services
We will provide you with the Services, which are more fully described on our website at CDMS Services. We reserve the right to change the scope of the Services but not before we publish a notice of those changes on our website.
4. Charges and Payment
(a) You agree to pay the charges for use of the CDMS Software and for provision of the Services at the rates shown on our web site screen entitled "Charges" (the "Charges").
(b) We may alter the Charges but will publish a notice of fee changes on-line 28 days before such increases will take effect.
(c) You agree to pay us by way of direct debit from your credit card using a trusted e-commerce vendor. You expressly authorise the debit of your credit card of amounts equal to the Charges payable.
(d) If the e-commerce vendor is unable to debit your card for the Charges, we may, at our option, immediately suspend your account and access to the Services.
(e) If in our opinion credit card payment is no longer appropriate or feasible, we may alter the payment method at our sole discretion.
(f) All payments made to us for the use of the CDMS Software and for provision of the Services are non-refundable. If you terminate this agreement, we will not refund any Charges which you may have already paid.
(g) We do not keep or store any of your credit card information.
(h) "In Debt Accounts" are those that are unpaid after the due date, or those whose charges are refused by your credit card company, or direct cheque account debits that are refused by your financial institution. We may block access to the Services if your account is an In Debt Account. Your In Debt Account will continue to accrue charges while it remains outstanding and we will grant you access to the Services only when you have paid all outstanding amounts, in cleared funds, in full.
5. Licence Restrictions
(a) You must not:
(i) remove any proprietary notices from any Services, data or information, or from the CDMS Software or any copy thereof;
(ii) cause, permit or authorize the modification, creation of derivative works, translation, copying of the CDMS Software or the Services;
(iii) sell, sub-licence, assign, rent, lease, act as a service bureau, or grant rights in the CDMS Software or Services, to any other entity without our prior written consent;
(iv) use the CDMS Software or the Services for any internal purposes for the benefit of any third party or charge any person for the use of the CDMS Software;
(v) use the CDMS Software or the Services to, or in any way that would violate any applicable law, regulation or ordinance;
(vi) collect any information or communication about the Services or users of the CDMS Software or Services by monitoring, interdicting or intercepting any process of the CDMS Software or the Services;
(vii) use any type of bot, spider virus, clock, timer, counter, worm, software lock, drop dead device, packet-sniffer, Trojan-horse routing, trap door, time bomb or any other codes or instructions that are designed to be used to provide a means of surreptitious or unauthorized access or that are designed to distort, delete, damage or disassemble the CDMS Software or the Services;
(viii) attempt to decompile, reverse engineer or hack the CDMS Software or to violate or attempt to overcome any encryption and/or other technical protection or security methods implemented by us with respect to the CDMS Software and/or data transmitted, processed or stored by us or other users of the CDMS Software;
(ix) use any automatic or manual device or process to interfere or attempt to interfere with the proper working of the CDMS Software or Services. We reserve the right to investigate occurrences which may involve such violations, and may involve, and cooperate with, law enforcement authorities in prosecuting users who have participated in such violations; and
(x) use the CDMS Software or the Services in breach of any law.
(b) When installed on your personal computer or PDA, the CDMS Software periodically communicates with our servers. Without notification to you, you acknowledge and consent to this periodic communication.
6. Proprietary Rights in the Software and the Services
(a) "Intellectual Property Rights" means copyright, neighbouring rights, trade marks, (registered and unregistered), design, all rights in relation to inventions (including patent rights, semi-conductor or circuit layout rights), confidential information (including trade secrets and know-how) and any other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
(b) The CDMS Software and Services contain our proprietary and confidential information, including copyrights, trade secrets and trademarks contained therein. Title to and ownership of the CDMS Software and the Services, including without limitation all Intellectual Property Rights therein and thereto, are and shall remain our exclusive property (and/or that of our suppliers), and except for the limited licence granted to you, we reserve all right, title and interest in and to the CDMS Software and the Services. You shall not take any action to jeopardize, limit or interfere with our ownership of and rights with respect to the CDMS Software or the Services. You acknowledge that any unauthorized copying or unauthorized use of the CDMS Software or the Services is a violation of this agreement and copyright laws and is strictly prohibited.
(c) All modifications or enhancements to the CDMS Software and the Services remain our sole property (and/or that of our third party licensors). You understand that we, in our sole discretion, may, subject to any other agreement entered into by you with us to receive the Services, modify or discontinue or suspend your right to use any of the CDMS Software at any time, and may at any time suspend or terminate any licence hereunder and disable any CDMS Software you may already have accessed or installed without prior notice.
(d) You agree to keep any information you receive relating to our Intellectual Property Rights, the CDMS Software and the Services which is not in the public domain confidential, and you will not allow any related written or electronically recorded material to be copied, including after termination of this agreement.
(e) You will not use information which you acquire from us for any purpose that is not authorised by us in writing.
(a) Subject to clause 7(c) below, the CDMS Software and the Services intended for personal use only and accordingly in no event do we (which term includes our affiliates, parent companies, subsidiaries, officers, directors, employees, agents or service providers) accept any liability under or in relation to this agreement or its subject matter (whether such liability arises due to negligence, breach of contract, misrepresentation or for any other reason) for any loss of or damage to business or reputation, loss of revenue, loss of profits, loss of opportunity, loss of advantage, loss of or loss of use of any software or data, loss of use of any PDA or other equipment, loss of use of the system on which the CDMS Software is used, or indirect, special or consequential loss or damage whatsoever (and for the purposes of this clause the term "loss" includes a partial loss or reduction in value as well as a complete or total loss) arising from your use of the CDMS Software or the Services.
(b) Subject to clause 7(c) below, we exclude all liability to you or any other person claiming through you, for any costs, loss, expenses, liability or damage, regardless of the form of action, whether in contract, tort (including negligence), under statute or otherwise, and whether arising from our (or our agents') performance or non-performance of our obligations under this agreement.
(c) Nothing in this agreement excludes your rights as a consumer arising from the terms implied by the Trade Practices Act 1974 and other legislation including the Fair Trading Acts, including the term that the Services will be rendered with due care and skill, however our liability for breach of those implied terms will be limited to, at our election:
(i) In the case of goods supplied:
A. the replacement of the goods or the supply of equivalent goods;
B. the repair of the goods;
C. the payment of the cost of replacing those goods or of acquiring equivalent goods; or
D. the payment of the cost of having the goods repaired; or
(ii) In the case of services supplied:
A. the supplying of those services again; or
B. the payment of the cost of having those services supplied again.
(d) We are not liable to you or any other person for faults or defects in the Services which are caused by your own conduct or misuse. Our liability to you in contract, tort (including negligence), under statute or otherwise, will be reduced by the extent (if any) to which you caused or contributed to the loss or damage.
(e) This clause will apply even after this agreement has ended.
8. Software Disclaimer/Disclaimer of Warranties
The CDMS Software and the Services are provided "as is" and we do not represent or warrant that the CDMS Software or any of the Services will always be available, accessible, uninterrupted, timely, secure, accurate, complete, error-free, nor do we warrant any connection to or transmission from the internet, or any particular quality of messages sent to or by the CDMS Software.
9. Your Representations and Warranties
(a) You represent and warrant that:
(i) you possess the legal right and ability to enter into this agreement and to comply with its terms;
(ii) you will use the CDMS Software for lawful purposes only and in accordance with this agreement and all applicable laws, regulations and policies; and
(iii) you will only use the CDMS Software on a PDA on which such use is authorized by the PDA’s owner.
(b) If we have reasonable grounds to suspect that your representations, warranties or promises are inaccurate or breached, we may terminate this licence, deny any or all use of the CDMS Software and access to the Services, and pursue any appropriate legal remedies.
You agree to indemnify, hold harmless and defend us and our affiliates, parent companies, subsidiaries, officers, directors, employees, agents and network service providers at your expense, against any and all third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys' fees and other dispute resolution expenses) incurred by us arising out of or relating to your (a) violation or breach of any term of this agreement or any policy or guidelines referenced herein, or (b) use or misuse of the CDMS Software or the Services.
(a) You may terminate this agreement at any time for any reason on written notice to us.
(b) We may terminate this agreement immediately if you, or any person using your PDA, or your personal computer to access the Services, breach a term of this agreement.
(c) Upon termination of this agreement for any reason all licences and rights to use the CDMS Software shall terminate and you must remove the CDMS Software from your PDA and dispose of all originals and copies of the CDMS Software in your possession.
(d) The provisions of sections 5, 6, 7, 8, 9 and 10 and any other clause which by its nature should so survive, shall survive termination of this agreement.
(a) You must not assign any of your rights and responsibilities under this agreement, unless we agree in writing to your request for transfer. We can assign any of our rights and obligations at any time.
(b) If any term of this agreement is invalid or unenforceable, it will be severed from this agreement and the remainder of this agreement will remain valid and effective.
(c) You acknowledge that you enter into this agreement entirely as a result of your own enquiries and that you do not rely on any statement, representation or promise by us or on our behalf not expressly set out in this agreement.
(d) You accordingly release us and each of our officers, agents and advisers from all claims, suits, demands of every kind (including negligence) arising from the relationship of the parties concerning this agreement before it was signed and from the negotiations leading to it.
(e) Any failure by us at any time or times to require performance of any provision hereof shall in no manner affect its right at a later time to enforce the same unless the same is waived in writing.
(f) This agreement shall be governed by and construed in accordance with the laws of the Australian Capital Territory without regard to its conflict of law rules. Any legal proceeding arising out or relating to this agreement will be subject to the exclusive jurisdiction of any court of the Australian Capital Territory and you irrevocably consent to the jurisdiction of such courts. The terms set forth in this agreement constitute the final, complete and exclusive agreement with respect to the CDMS Software and may not be contradicted, explained or supplemented by evidence of any prior agreement, any contemporaneous oral agreement or any consistent additional terms.
© 2004 Clayton Utz