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tsg8vlicence_16.htm

TSG Software End User Licence Agreement

(Version 1.0: 16 December 2016)

IMPORTANT – PLEASE READ CAREFULLY

WARNING: PERMISSION TO USE THIS SOFTWARE PREMIUM VERSION OR SOFTWARE VIEWER IS CONDITIONAL UPON YOU AGREEING TO THE TERMS SET OUT BELOW. THESE TERMS SET OUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU. BY CLICKING THE “I ACCEPT” BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND TO BE A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “I DO NOT ACCEPT” BUTTON OR LEAVE THE WEBSITE.

1.        Introductory terms

The terms of this agreement are legally binding.  Your acceptance of all of these terms is indicated by your clicking the “Accept” button when accessing the Software Premium Version or Software Viewer, and by your accessing and continuing to access the Software Premium Version or Software Viewer. The licence granted under this agreement is only given on your acceptance of all of its terms and will be subject to your continued compliance with them.

If you intend to access the Software Premium Version or Software Viewer in connection with your employment or as an agent for a principal, you should only accept this agreement if you have been authorised to do so by your employer or principal (as applicable). By accepting this agreement, you are warranting to CSIRO that you are authorised to do so on behalf of your employer or principal (as applicable).

The Software Premium Version or Software Viewer may contain third party material obtained by CSIRO under license.  Your right to access such material as part of the Software Premium Version or Software Viewer is subject to any separate licence terms identified by CSIRO as part of the Software Premium Version or Software Viewer release.  Those third party license terms may require you to download the relevant Software Premium Version or Software Viewer from a third party site, or may mean that the third party licensor (and not CSIRO) grants you a licence directly for those components of the Software Premium Version or Software Viewer. It is your responsibility to ensure that you have the necessary rights to access and use such third party material.

The only rights granted by CSIRO to access the Software Premium Version or Software Viewer are as set out in this agreement.

2.        Meaning of words

The following words have their defined meaning when used in this agreement:

‘access’ means to access, install, download, copy, use, or otherwise benefit from the functionality of the Software Premium Version or Software Viewer.  Access to the Software Premium Version or Software Viewer includes carrying out one or more of these actions, either personally or via an agent or employee.

‘CSIRO’ means the Commonwealth Scientific and Industrial Research Organisation ABN 41 687 119 230 of Limestone Ave, Campbell, ACT, Australia.

‘Hosting and Distribution Service Website’ means the SOLO server™ Software Key System™, a web-based software distribution platform owned by Concept Software, Inc., PO Box 770459, Winter Garden, FL 34777, which as at the date of this agreement is used by CSIRO under contract to distribute the Software Premium Version or Software Viewer to customers, or such other hosting and distribution service as CSIRO may use to distribute the Software Premium Version or Software Viewer to customers from time to time.

‘Licence Expiry Date’ means:

(a)   For the Software Premium Version, the last day of the period applicable to the licence you have purchased at the Hosting and Distribution Service Website;

 

E.g. if you purchase a licence to the Software Premium Version for a 3 year period, the Licence Expiry Date will be 3 years after the date of purchase.

 

(b)   For the Software Viewer, the date upon which CSIRO notifies you that your licence to the Software Viewer is terminated.

E.g. if you are granted a licence to the Software Viewer, the Licence Expiry Date will be the date upon which CSIRO notifies you that the licence is being terminated.

‘Maintenance Services’ means (a) rectification of software activation and installation problems arising from inherent defects in the Software Premium Version at the time of purchase, or in the Software Viewer which CSIRO determines in its absolute discretion to rectify, and (b) rectification of bugs or viruses inherent in the Software Premium Version at the time of purchase, or in the Software Viewer which CSIRO determines in its absolute discretion to rectify, but excludes services to rectify bugs or viruses introduced through your subsequent access to or use of the Software Premium Version or Software Viewer or any other operability issues arising from incompatibility with your or any third party’s hardware or software systems.

‘Product Websites’ mean:

(a)   https://research.csiro.au/thespectralgeologist which may be accessed by redirection from www.thespectralgeologist.com so long as CSIRO continues to retain rights to the www.thespectralgeologist.com domain name; and

(b)   the Hosting and Distribution Service Website.

‘Software Premium Version’ means the executable code version of ‘The Spectral Geologist’ (‘TSG’) version 8 (‘TSG8’) computer program that is made available for your access.  It includes any updates or additional features that CSIRO may in its absolute discretion make available to you from time to time, except to the extent those updates or features are provided under a separate licence and/or on different terms and conditions to this agreement.

‘Software Viewer’ means the executable code version of ‘The Spectral Geologist’ (‘TSG’) viewer module that is made available for your access.  It includes any updates or additional features that CSIRO may in its absolute discretion make available to you from time to time, except to the extent those updates or features are provided under a separate licence and/or on different terms and conditions to this agreement.  The Software Viewer has limited functionality compared to the Software Premium Version. The Software Viewer can open and display a data-set that was created by the Premium Version or any older version of TSG.   It has most of the viewing functionality of the Software Premium Version.   It cannot create a new data-set, or create or modify any item in an existing data-set.

‘Support Supplier’ means a person authorised by CSIRO by written agreement to provide Support Services to end users of the Software Premium Version or Software Viewer, such as you.

 ‘Support Services’ in relation to your access to the Software Premium Version or Software Viewer, may include:

a)    helpdesk, email, telephone and on-site support;

b)    Software configuration;

c)     training services; and

d)    any other support services that you agree to with your Support Supplier.

‘Term’ means the period commencing on the date you are granted the licence set out in clause 3 and access rights set out in clause 4 of this Agreement and ending on the Licence Expiry Date, unless terminated earlier.

‘you’ means each person that accesses the Software Premium Version or Software Viewer, and also includes your employer or principal when you have authority to act on their behalf.  ‘your’ has a corresponding meaning.

3.        Licence

Provided that you have obtained the Software Premium Version or Software Viewer from CSIRO in accordance with any conditions notified on the Product Websites or otherwise in writing (including that you have paid any applicable fee), then from the date you satisfy those conditions CSIRO grants you a non-exclusive and non-transferable licence for the Term to access one copy of the Software Premium Version or Software Viewer as applicable in accordance with its standard functionality.

At the expiry of the Term of any  licence you purchase to the Software Premium Version:

a)    your licence and ability to access the Software Premium Version will end unless you have purchased a further licence to the Software Premium Version;

b)    you will automatically be granted a licence to the Software Viewer for the Term on the terms set out in this agreement.

You acknowledge and agree that:

a)    upon expiry or termination of a licence to the Software Premium Version or Software Viewer, CSIRO is entitled to remotely deactivate the relevant software; and

b)    you will not take any steps to interfere with or prevent CSIRO from remotely deactivating the relevant software.

No licence is granted by CSIRO where you obtain the Software Premium Version or Software Viewer other than from the Hosting and Distribution Service Website or CSIRO directly and in accordance with any notified conditions.

This licence of the Software Premium Version or Software Viewer extends to any enclosed or related documentation that CSIRO chooses, in its absolute discretion, to provide to you.

4.        Your access to the Software Premium Viewer or Software Viewer

You may only access the Software Premium Version or Software Viewer to which you are granted a licence on a single compatible computing device, and the Software Premium Version or Software Viewer may only be accessed by a single login at any one time.

If you intend for the Software Premium Version or Software Viewer to be used on multiple computing devices simultaneously, or over a network, you should contact CSIRO to discuss licence availability and pricing.

Without limiting your obligations, you must not:

(a)          remove, alter or otherwise interfere with any copyright or proprietary notice, warning or disclaimer statement affixed to, incorporated in or otherwise notified by CSIRO in connection with the Software Premium Version or Software Viewer;

(b)          reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software Premium Version or Software Viewer, except to the extent you may be expressly permitted under applicable law;

(c)           adapt, extend, enhance or make any other improvements to the Software Premium Version or Software Viewer;

(d)          distribute, sell, sublicense or otherwise make the whole or part of the Software Premium Version or Software Viewer available for access by a third party (other than your employer or principal) unless permitted to do so under a separate agreement between you and CSIRO;

(e)          allow the Software Premium Version or Software Viewer to be combined with or incorporated into other Software Premium Version or Software Viewer except as allowed in Clause 5 below;

(f)           install the Software Premium Version or Software Viewer on a file server, network or other feature allowing multiple concurrent users to access the Software Premium Version or Software Viewer unless you have a separate license to do so;

(g)          release or distribute the Software Premium Version or Software Viewer on the Internet or any other communication network, unless CSIRO has separately granted you written permission to do so; or

(h)           access or use the Software Premium Version or Software Viewer in any way which contravenes any applicable law.

5.        Third party products and content

The Software Premium Version or Software Viewer may allow you to access and interoperate with third party websites, software applications, data services, or in environments that allow automation (e.g. macros) (‘third party offerings’).  Your access to and use of any third party offering, including any goods, services or information, is governed by the relevant third party’s terms and conditions applying to such offerings. CSIRO does not represent or warrant that the Software Premium Version or Software Viewer will enable you to access and interoperate with third party offerings, except where expressly set out in this agreement or on a Product Website. Third party offerings are not owned, provided, or endorsed by CSIRO and you access such third party offerings entirely at your own risk.

6.        Updates and New Releases

CSIRO may release updates or new releases to the Software Premium Version and/or Software Viewer from time to time, at its absolute discretion and is under no obligation to notify or provide any updates or new releases to you.  Where you access any updates or new releases for the Software Premium Version or Software Viewer that CSIRO may provide, the terms of this agreement apply to those updates and new releases as part of the Software Premium Version or Software Viewer.  CSIRO may impose additional conditions and fees on access to those updates and new releases in accordance with any terms provided with the update or new release, or posted on a website from which it is available.

7.        Maintenance Services

CSIRO will provide Maintenance Services for the Software Premium Version during the Term.  CSIRO is under no obligation to provide Maintenance Services for the Software Viewer, but may do so in CSIRO’s absolute discretion.  You agree to notify CSIRO promptly of any problems with the Software Premium Version which are eligible for Maintenance Services (see the definition of “Maintenance Services and clause 9) and for which you may wish to request Maintenance Services. CSIRO may refuse to provide any or all Maintenance Services without fault in the event that you have unreasonably delayed in notifying CSIRO or provided insufficient details of the alleged problem and this limits or adversely impacts CSIRO’s ability to investigate the cause or identify the appropriate remedy for the alleged problem.

8.        Support Services

CSIRO will not provide to you any support or Support Services for the Software Premium Version or Software Viewer.  You acknowledge that you may require Support Services in order to use and obtain the full benefits of the Software Premium Version and/or Software Viewer.  Before you access the Software Premium Version or Software Viewer we recommend that you arrange for Support Services from a Support Supplier.

9.        Exclusions

Maintenance Services provided to you under this agreement do not include the following:

a)    correction of errors or defects caused by the operation of the Software Premium Version or Software Viewer in a manner other than that currently specified by CSIRO;

b)    correction of errors or defects caused by modification, revision, variation, translation or alteration of the Software Premium Version or Software Viewer not authorised by CSIRO;

c)     correction of errors or defects caused by the use of the Software by a person not authorised by CSIRO;

d)    correction of errors caused in whole or in part by the use of computer programs other than the Software;

e)    correction of errors caused by your failure to provide suitably qualified and adequately trained operating and programming staff for the operation of the Software Premium Version or Software Viewer;

f)     correction of operator errors;

g)    correction of errors caused by incorrect use of the Software Premium Version or Software Viewer;

h)    correction of errors caused by an equipment fault or malfunction, or corrupt/ faulty data;

i)      equipment maintenance;

j)      diagnosis or rectification of faults not associated with the Software Premium Version or Software Viewer;

k)     correction of errors arising directly or indirectly out of your failure to comply with this agreement or any other agreement you have with CSIRO;

l)      correction of errors or defects which are the subject of a warranty under another agreement; or

m)   any service in relation to the Software Premium Version or Software Viewer, except where CSIRO agrees in its absolute discretion.

10.      No warranty or representations

EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT AND TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE PREMIUM VERSION OR SOFTWARE VIEWER ARE PROVIDED “AS-IS”. CSIRO MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS REGARDING THE CONTENTS OR ACCURACY OF THE SOFTWARE PREMIUM VERSION OR SOFTWARE VIEWER, OR OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, THE ABSENCE OF LATENT OR OTHER DEFECTS, OR THE PRESENCE OR ABSENCE OF ERRORS, WHETHER OR NOT DISCOVERABLE.

TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CSIRO BE LIABLE ON ANY LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, IN AN ACTION FOR BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE) FOR ANY CLAIM, LOSS, DAMAGES OR OTHER LIABILITY HOWSOEVER INCURRED.  WITHOUT LIMITING THE SCOPE OF THE PREVIOUS SENTENCE THE EXCLUSION OF LIABILITY SHALL INCLUDE: LOSS OF PRODUCTION OR OPERATION TIME, LOSS, DAMAGE OR CORRUPTION OF DATA OR RECORDS; OR LOSS OF ANTICIPATED SAVINGS, OPPORTUNITY, REVENUE, PROFIT OR GOODWILL, OR OTHER ECONOMIC LOSS; OR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ACCESS OF THE SOFTWARE PREMIUM VERSION OR SOFTWARE VIEWER OR ANY OTHER DEALINGS WITH THE SOFTWARE PREMIUM VERSION OR SOFTWARE VIEWER, EVEN IF CSIRO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM, LOSS, DAMAGES OR OTHER LIABILITY.

APPLICABLE LEGISLATION SUCH AS THE AUSTRALIAN CONSUMER LAW MAY APPLY REPRESENTATIONS, WARRANTIES, OR CONDITIONS, OR IMPOSE OBLIGATIONS OR LIABILITY ON CSIRO THAT CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED TO THE FULL EXTENT SET OUT IN THE EXPRESS TERMS OF THIS CLAUSE ABOVE “CONSUMER GUARANTEES”.  TO THE EXTENT THAT SUCH CONSUMER GUARANTEES CONTINUE TO APPLY, THEN TO THE FULL EXTENT PERMITTED BY THE APPLICABLE LEGISLATION, THE LIABILITY OF CSIRO UNDER THE RELEVANT CONSUMER GUARANTEE IS LIMITED (WHERE PERMITTED AT CSIRO’S OPTION) TO ONE OF FOLLOWING REMEDIES OR SUBSTANTIALLY EQUIVALENT REMEDIES:

(a)          THE REPLACEMENT OF THE SOFTWARE PREMIUM VERSION OR SOFTWARE VIEWER, THE SUPPLY OF EQUIVALENT SOFTWARE, OR SUPPLYING RELEVANT SERVICES AGAIN;

(b)          THE REPAIR OF THE SOFTWARE PREMIUM VERSION OR SOFTWARE VIEWER;

(c)           THE PAYMENT OF THE COST OF REPLACING THE SOFTWARE PREMIUM VERSION OR SOFTWARE VIEWER, OF ACQUIRING EQUIVALENT SOFTWARE, HAVING THE RELEVANT SERVICES SUPPLIED AGAIN, OR HAVING THE SOFTWARE REPAIRED; OR

(d)          BY REFUNDING: (I)  ANY MONEY PAID BY YOU FOR THE LICENCE UNDER CLAUSE 3 AND ACCESS RIGHTS UNDER CLAUSE 4 OF THIS AGREEMENT OR (II)  AN AMOUNT THAT IS EQUAL TO THE VALUE OF ANY OTHER CONSIDERATION PROVIDED BY YOU FOR THE LICENCE UNDER CLAUSE 3 AND ACCESS RIGHTS UNDER CLAUSE 4 OF THIS AGREEMENT.

IN THIS CLAUSE, CSIRO INCLUDES ANY THIRD PARTY AUTHOR OR OWNER OF ANY PART OF THE SOFTWARE PREMIUM VERSION OR SOFTWARE VIEWER OR MATERIAL DISTRIBUTED WITH IT.  CSIRO MAY ENFORCE ANY RIGHTS ON BEHALF OF THE RELEVANT THIRD PARTY.

11.      Termination 

Software Viewer

CSIRO may terminate your licence to the Software Viewer at will and without fault by any of the following means:

(a)          notifying you in writing; or

(b)          by posting a notice on a Product Website.

The effective date of termination will be 30 days after notice is posted or given, except that CSIRO may terminate immediately if (i) you commit any breach of this agreement; (ii) you become insolvent or are subject to any form of insolvency administration; or (iii) you cease or threaten to cease conducting business in the normal manner.

Software Premium Product

CSIRO may terminate your licence to the Software Premium Version without fault immediately by written notice to you if (i) you are in breach of this agreement and to the extent that breach is capable of being rectified you fail to do so within 30 days after receipt of CSIRO’s notice to do so; (ii) you are in breach of this agreement and that breach is not capable of being rectified; (iii) you become insolvent or are subject to any form of insolvency administration or proceedings;  (iv) you cease or threaten to cease conducting business in the normal manner; or (v) your initial or ongoing access to the Software Premium Product contravenes any applicable law.

Consequences of termination

On termination, the licence set out in clause 3 ends and all your rights to access the Software Premium Version or Software Viewer under clause 4 and to Maintenance Services under clause 7 cease and you must destroy or permanently delete all copies of the Software Premium Version or Software Viewer in your possession or control.  You must confirm you have done this in writing if requested by CSIRO.

Termination does not affect CSIRO’s ability to claim damages or other compensation for breach of this agreement or of CSIRO’s rights at law, including for access to or distribution of the Software Premium Version or Software Viewer without a valid licence.

You agree that damages may not be appropriate as an exclusive remedy in respect of all breaches of this agreement and CSIRO will be entitled to seek and obtain an injunction (including on an interim basis) to prevent any alleged breach of this agreement or its rights to the Software Premium Version or Software Viewer, in addition to any right to recover damages.

12.      No use of CSIRO name

You must not use the name, any trade mark or logo of CSIRO to claim any sponsorship, endorsement, approval or affiliation or other association with CSIRO by virtue of this agreement or your access to the Software Premium Version or Software Viewer, unless you have express written permission from an authorised officer of CSIRO.

13.      Privacy

 By accessing the Software Premium Version or Software Viewer you may be submitting information, including personal information as defined in the Privacy Act 1988 (Cth), to CSIRO and other third parties over the Internet.  This may include an automatic connection to the Internet to check for the availability of updates, or in order to process other automated requests.  CSIRO is required to treat your personal information in accordance with the Privacy Act 1988 (Cth).  You should review the specifications (if any) and other information provided with the Software Premium Version or Software Viewer to obtain further information regarding the type of information that CSIRO or third parties may collect as part of your access to the Software Premium Version or Software Viewer, and the scope of permitted use.

14.      Resolving disputes

In any dispute arising out of or in connection with this agreement or the Software Premium Version or Software Viewer (excluding any dispute relating to or arising from or in relation to your arrangements with a Support Supplier), please contact CSIRO and provide written details of the alleged dispute. You agree to negotiate in good faith with CSIRO to resolve the dispute.  If the dispute is not resolved by those negotiations within 30 days, you will notify CSIRO before taking any court or other legal proceedings, and either party may refer the dispute to the Australian Commercial Dispute Centre Limited (‘ACDC’) for resolution by mediation in accordance with the ACDC Guidelines on Mediation.  However, this does not limit CSIRO’s rights under the agreement or prevent CSIRO from seeking any urgent interlocutory relief.

15.      Notices

All notices to CSIRO under this agreement concerning Maintenance Services should be addressed to Peter Mason at peter.mason@csiro.au. All other notices under this agreement should be addressed to Andrew Rodger at andrew.rodger@csiro.au.  If notices sent to these addresses should fail for any reason, please address your notice to CSIRO Enquiries at enquiries@csiro.au.

16.      Entire agreement

All international conventions that might import contractual terms into this agreement are excluded, including the United Nations Convention on Contracts for the International Sale of Goods.

This agreement is to be read subject to any laws (to the extent they are applicable in the circumstances) that cannot be excluded, so that the agreement will as far as possible be valid and enforceable by CSIRO in the relevant circumstance.

17.      The governing law

This agreement is governed by and construed in accordance with the laws of New South Wales, Australia and you agree to submit to the exclusive jurisdiction of the courts in that State.