End User Licence Agreement
SCINAPTIC ONEPLACEMAIL®: END USER LICENCE AGREEMENT
IMPORTANT USER NOTICE – READ THIS CAREFULLY BEFORE INSTALLING OR USING SCINAPTIC ONEPLACEMAIL®.
End User Licence Agreement
1. Parties: This End User Licence Agreement together with any completed Order Form (“EULA”) is a legal agreement between:
Scinaptic Communications Pty Ltd (ACN 095 762 655) (“Scinaptic”)
Address: Suite 2, Level 2, 27 Belgrave Street, Manly, NSW 2005 Australia
Telephone: +61 2 9977 1312, and
The person or entity named in the Order Form who acquires the Software (“Licensee”).
2. Acceptance by Licensee: Licensee acknowledges and agrees that it has acquired the Software on the condition that the installation and use of the Software is subject to the terms and conditions of this EULA. If the Software is installed or downloaded by an administrator of Licensee, the administrator is deemed to accept the terms and conditions of this EULA (for and on behalf of the Licensee and each User) by clicking the “I ACCEPT” button displayed on the relevant server. The “I DO NOT ACCEPT” button must be clicked if Licensee does not agree to all the terms and conditions of this EULA, in which case Licensee must immediately cancel the installation or downloading of the Software and must not thereafter install, use or access, or allow any User to install, use or access, the Software. Acceptance of any modifications to the terms of this EULA made by Scinaptic from time to time will be a pre-condition for installation and use of any Updates. For the avoidance of doubt no terms or conditions of Licensee, including any terms or conditions printed on or referred to in Licensee’s offer to purchase or order will be binding on Scinaptic or have any legal effect unless expressly agreed to in writing by Scinaptic.
3. Definitions: In this EULA, capitalised terms have the following meanings:
Commencement Date means the date that the Software is delivered to Licensee under clause 8, if delivered on CD/DVD ROM, the date such CD/DVD ROM is sent by Scinaptic.
Documentation means any media, printed materials, electronic documentation and technical, operating and user manuals made available by Scinaptic in relation to the Software.
Enterprise Licence means a licence to use the Enterprise Edition of the Software in accordance with clause 4, under a licence and maintenance package or on a 3-year subscription basis. Licensee which has been granted an Enterprise Licence under this EULA is referred to as “Enterprise Licensee”.
Environment means SharePoint denoted by a single SharePoint Farm or served by a central administration console, or in respect of a private or public cloud, SharePoint served by a central administration console.
Express Licence means a licence to use the Express Edition of the Software in accordance with clause 5. Licensee which has been granted an Express Licence under this EULA is referred to as “Express Licensee”.
Fees means the Licence Fee and the annual Maintenance Fees or the Subscription Fee (as applicable) payable by Enterprise Licensee under the Enterprise Licence.
Number of Users means, with respect to the Enterprise Licence, the number of Users indicated in the Order Form, and with respect to the Express Licence, 25 Users within a single Environment (including all Users in that Environment whether authorised by Licensee or another licensee of the Software).
Order Form means an online, electronic or hardcopy communication by or on behalf of Licensee to Scinaptic, which contains certain details of Licensee and for the purpose of downloading, ordering or confirming orders of the Software. Order Forms include the information webpage completed by an Express Licensee on the Scinaptic Website to download the Software, and the Customer Order Form, Purchase Order issued by Licensee or paypal information webpage completed by or on behalf of an Enterprise Licensee.
Scinaptic Website means the website nominated from Scinaptic from time to time, currently at <www.scinaptic.com>.
Software means the Express Edition or the Enterprise Edition of the OnePlaceMail software as indicated in the Order Form, all Updates and the Documentation.
Updates means any patches and modifications, enhancements, improvements and revisions of the Software, including new releases of Software, made available by Scinaptic at its discretion from time to time.
User means each person who is permitted access to the Software by Licensee and uses the Software under the authority or control of Licensee.
4. Enterprise Licence: Upon acceptance of this EULA in relation to the Enterprise Edition of the Software and payment of the applicable Fees by Licensee, Scinaptic grants to Licensee from the Commencement Date a personal, non-exclusive, non-transferable licence to use the Software subject to the terms and conditions of this EULA.
5. Express Licence: Upon acceptance of this EULA in relation to the Express Edition of the Software by Licensee, Scinaptic grants to Licensee from the Commencement Date a personal, non-exclusive, non-transferable licence to use the Software within a single Environment, subject to the terms and conditions of this EULA. Express Licensee acknowledges and agrees that Scinaptic will only grant a single Express Licence to Users within an Environment and that Licensee will need to obtain an Enterprise Licence if the Number of Users within an Environment exceeds that allowed under an Express Licence. Clauses 10, 17 to 21 and 23 do not apply to Express Licensee.
6. Number of Users: The licences granted under clauses 4 or 5 are limited to the Number of Users under the respective Enterprise or Express Licence. The Number of Users may not be reduced but Licensee may authorise different Users to access and use the Software from time to time, provided that Licensee must ensure that the Software is not installed for use by more than the Number of Users at any one time and that any person who ceases to be a User no longer accesses or uses the Software. Licensee must, on request by Scinaptic, report to Scinaptic the number of Users every 6 months (from the Commencement Date) during the term by completing and submitting to Scinaptic a completed User Report Form.
7. Copies: Licensee may only make a copy of the Software if it is solely for backup purposes or required for the purpose of updating or upgrading hardware, system maintenance, ensuring the continued availability of the Software to authorised Users or is otherwise expressly permitted by law. Each User may make a copy of the Software for use on laptops or home PCs provided that the Software is only accessed through the licensed server. Any copy of the Software must clearly show all titles, trade marks, copyright notices, legends, and other proprietary markings without modification. Licensee must not otherwise copy the Software to any storage device or other server or remove or relocate the server for which the Software is licensed under this EULA except as expressly permitted by this EULA or by law, unless with Scinaptic’s prior written consent.
Installation
8. Delivery and Risk: The Software will be made available to Licensee for download from the Scinaptic Website or delivered on CD/DVD-ROM. Risk of loss or damage to the Software passes to the Licensee on delivery.
9. System Requirements: Licensee acknowledges and agrees that the Software may only be installed and used on PC computer equipment, including a server or individual computer, which meets or exceeds the minimum system requirements identified and notified by Scinaptic to Licensee from time to time. Licensee acknowledges and agrees that it is solely responsible for obtaining, installing, operating and maintaining all hardware, other equipment and third party software required for use of the Software. All computer functionality, operating system, network services, hardware maintenance and data backup are the responsibility of the Licensee. SCINAPTIC IS NOT RESPONSIBLE FOR DATA LOSS ARISING AS A RESULT OF USE OF THE SOFTWARE OR INTERACTION OF THE SOFTWARE WITH ANY THIRD PARTY SOFTWARE.
10. Evaluation Version: If Licensee has selected the Enterprise Edition of the Software, Scinaptic may provide Licensee with an evaluation version of the Software solely for Licensee to evaluate the Software during a specified evaluation period. Access to the Software will be enabled via a ‘licence key’ provided by Scinaptic. Any use of the Software after the expiry of the evaluation period is not permitted unless the applicable Fees are paid by Licensee. The terms and conditions of this EULA apply in full during the evaluation period except that:
(a) no Fees are payable;
(b) the scope of the licence granted in clause 4 is limited to the purpose as stated in this clause 10; and
(c) unless otherwise agreed by Scinaptic in writing, no support and maintenance services will be provided during the evaluation period.
11. Protection and Security: The Licensee agrees to use reasonable endeavours to safeguard the Software and any licence key(s) to ensure that no unauthorised person has access to them and that there is no unauthorised copying or distribution of the Software or the licence key(s).
12. Updates: Scinaptic may direct Users to the Scinaptic Website to enable Users to download Updates. Express Licensee must install all Updates within 60 days of them being made available by Scinaptic. If an Update is not installed within 60 days, the Software will be suspended for use by Express Licensee until such time that the Update is installed. Updates are only available to Enterprise Licensee elected to be covered under the support and maintenance package (first year is included in the Licence Fee) or on a subscription basis.
13. EULA applies to Updates: Upon installation of an Update, the licence granted under this EULA will apply to such Update (to the extent varied by any additional terms and conditions notified to Licensee by Scinaptic) and all rights in respect of the previous version of the Software will lapse and no further use of the previous version of the Software is permitted.
Permitted Use
14. Monitoring: Licensee agrees that it will comply and procure each User to comply with the terms and conditions of this EULA. Licensee must ensure each User is uniquely authenticated and accesses the Software via Windows authentication or claims based authentication. Express Licensees consent to Scinaptic monitoring and keeping records of their use of the Software.
15. Restrictions on Use: Licensee agrees and must procure each User:
(a) not to use the Software or any part thereof to provide outsourcing or computer bureau services;
(b) not to modify, translate, adapt or distribute the Software or communicate the Software to the public;
(c) not to rent, lease, resell, sublicense or lend the Software;
(d) not to reverse engineer, reverse assemble, disassemble, reverse compile or imitate the Software or otherwise attempt to access, copy, display or extract the source code of the Software (except to the extent expressly permitted by law) or create derivative works based on the Software;
(e) not to remove any copyright or other proprietary protection legends or notices from the Software;
(f) to protect the confidential and proprietary information contained therein from being disclosed to any unauthorised person;
(g) not to combine the Software with other software (except to the extent expressly permitted by law);
(h) not to claim ownership of the Software either verbally or in writing;
(i) to acknowledge to third parties that ownership of the Software vests in Scinaptic; and
(j) not to use or copy the Software except as expressly provided in this EULA.
Support Services
16. Online Knowledge Base: Scinaptic may at its discretion make available to Licensee general information in relation to the installation and use of the Software in the form of online knowledge base on the Scinaptic Website or forums of social media networks selected by Scinaptic from time to time
17. Support and Maintenance: Subject to Enterprise Licensee having installed all available Updates (made available to Enterprise Licensee under a current support and maintenance package or on a subscription basis only) and paying all applicable Fees, Scinaptic will provide support and maintenance services to Enterprise Licensee relating to installation and use of the Software via a Support Ticket system available between 9.00 am to 5.00 pm EST excluding Saturdays, Sundays and any public holidays in New South Wales, Australia, under which Enterprise Licensee may submit a Support Ticket on the Scinaptic Website. Scinaptic will respond to the Support Ticket by e-mail, web conference or telephone (as appropriate). Support and maintenance services via the Support Ticket system are not available outside the nominated hours unless agreed in writing, which may be subject to payment of additional fees. For avoidance of doubt, Scinaptic is under no obligation to provide support and maintenance services to Express Licensees.
18. Cooperation: Enterprise Licensee agrees, on request, to provide promptly to Scinaptic any information available to assist Scinaptic in identifying a technical error (such as any error diagnostic messages) when providing support and maintenance services.
19. Updates: Scinaptic’s obligation to provide support and maintenance services in respect of the Software will be suspended until such time all Updates have been installed by Enterprise Licensee in relation to the Software.
20. Exclusions: Scinaptic’s support and maintenance services do not include the rectification of errors, defects or problems caused or contributed to by:
(a) default or negligence of Licensee;
(b) improper or unauthorised use of the Software;
(c) any modifications or alterations of the Software other than as approved by Scinaptic;
(d) causes external to the Software such as, but not limited to, power failure, electric power surges or a force majeure event;
(e) any failure by Licensee to download and install Updates made available on the Scinaptic Website;
(f) any failure by Licensee to comply with the Documentation;
(g) any failure by Licensee to comply with any reasonable guidelines or instructions provided by Scinaptic;
(h) any fault, defect, omission or error in any data, software or equipment not supplied by Scinaptic;
(i) any failure arising out of any network (including the internet) or communications; or
(j) use of the Software with any software or equipment not approved or recommended by Scinaptic, or in a manner or for a purpose in breach of this EULA or not reasonably contemplated by this EULA.
Scinaptic reserves the right to charge Licensee additional fees (at its then current rates) for the rectification of any errors, defects or problems caused or contributed to by any of the reasons listed above.
21. Support Term: Scinaptic’s obligations to provide support and maintenance services to Enterprise Licensee under this EULA is conditional upon Licensee paying all applicable Fees and will cease upon the earlier of termination of this EULA in accordance with its terms or:
(a) in relation to an Enterprise Licence under a “licence and maintenance package”, upon expiry of one year from the Commencement Date; or
(b) in relation to an Enterprise Licence on a subscription basis, upon expiry of three years from the Commencement Date,
unless the maintenance package or the subscription is renewed and all applicable Fees paid by Licensee.
22. Training: Scinaptic does not provide training for the use of the Software unless requested by Licensee or otherwise provided by this EULA and subject to Licensee entering into an agreement with Scinaptic for the provision of such training services.
Fees and Payment
23. Fees: All Fees paid by Enterprise Licensee to Scinaptic under this EULA are non-refundable. Enterprise Licensee which obtains an Enterprise Licence on a subscription basis agrees and acknowledges that it is liable for payment of subscription fees for a minimum of a 3 year period.
24. Taxes: Any applicable licence or other fees payable by Licensee under this EULA are (unless otherwise expressly stated by Scinaptic) exclusive of any applicable goods or services or value added taxes or other taxes (“Taxes”). Upon Scinaptic’s request, Licensee must pay or reimburse to Scinaptic any amounts payable on account of Taxes levied upon or arising out of the supply of the Software or any services by Scinaptic to Licensee.
Intellectual Property
25. Ownership: Licensee acknowledges and agrees that all intellectual property in and to the Software (including copyright in all drawings, designs and specifications relating to the Software, algorithms, scientific or technical data and models forming the part of the Software) and any other information or material (including confidential information) relating to the Software remains the property of Scinaptic, and that the Licensee acquires no right, title or interest in or to that intellectual property by virtue of this EULA other than as expressly stated in this EULA. The rights and interests in all copies of or modifications to the Software remain with Scinaptic.
26. Improvements: The parties acknowledge that all intellectual property rights in relation to any development, modification, adaptation or improvement of the Software made or acquired by Licensee during the Term (“Improvements”) will, to the extent permitted by law, vest in and are hereby assigned to Scinaptic with effect from their creation. Scinaptic grants to Licensee a licence to use any Improvements on the terms of this EULA. Where title to Improvements is not permitted by law to vest in Scinaptic, Licensee grants to Scinaptic a perpetual, irrevocable, transferable, royalty-free, worldwide licence (including the right to sublicense) to use the Improvements for any purpose.
27. No Challenge: To the extent such prohibition is permitted by law, Licensee must not take any action, and must not assist any person to take any action that may jeopardise, limit, challenge or interfere with Scinaptic’s ownership of or rights in the Software.
28. Third Party Claims: If any person alleges, or if Scinaptic believes, that the use of the Software may infringe the intellectual property rights of any person, Scinaptic may suspend Licensee’s licence to use the Software until Scinaptic has made any alterations required to make the Software non-infringing.
Privacy, Confidentiality and Third Party Website
29. Privacy: Scinaptic will handle, protect and disclose any personal information of Licensee collected in connection with this EULA in accordance with its Privacy Policy (as amended from time to time), published on the Scinaptic Website.
30. Marketing: By accepting the terms and conditions of this EULA, Licensee consents to receiving marketing and promotional communications from Scinaptic or its authorised re-sellers from time to time. Any such marketing and promotional communication pursuant to the consent granted under this EULA will provide the Licensee with an ‘unsubscribe’ facility. The consent under this clause is given by Licensee every time Licensee accepts the terms and conditions of EULA in relation to the Software.
31. Confidentiality: Licensee must treat all information concerning the Software, including the Documentation as confidential and proprietary information of Scinaptic (other than information that is lawfully in the public domain or lawfully in the possession of Licensee at the time of disclosure). Licensee may not reproduce, use or disclose that information to any person without Scinaptic’s prior written consent, other than to those of the Licensee’s employees who must have access to such information for the performance of their duties.
32. Third Party Website: The Software may include links to third party websites, including forums of social media networks. Scinaptic is not responsible for and do not endorse any features, content, advertising, products or other materials on or available from any third party websites. Licensee acknowledges and agrees that it accesses and use such third party websites at its own risks.
Warranty and Limitation of Liability
33. Prescribed Terms: Nothing in this EULA excludes, restricts or modifies the application of any legislation which by the law of any jurisdiction cannot be excluded, restricted or modified. In particular, where Licensee is a “consumer” under the Australian Consumer Law (“ACL”), Scinaptic gives the guarantees as required by the ACL (“Consumer Guarantees”) with respect to the Software and any support and maintenance services supplied by it.
34. Product Warranty: In addition to (where applicable) any Consumer Guarantees given in clause 33, Scinaptic warrants that the Software will perform in accordance with the specifications detailed in the User Guide on the Scinaptic Website, published by Scinaptic in relation to the Software and will be free from defects in materials and workmanship under normal use for a period of 30 days from the date that the Software is delivered to Licensee (“Warranty Period”). This product warranty does not apply if any errors, defects or problems are caused or contributed to by the causes outlined in clause 20. This product warranty is the sole remedy for any Licensee which is not a “consumer” under the ACL.
35. ACL Notice: The following notice applies only to a Licensee which is a “consumer” under the ACL:
Our goods come with warranties that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
36. Claim Procedure: If during the Warranty Period, Licensee believes that the Software does not operate in accordance with the specifications detailed in the User Guide on the Scinaptic Website:
(a) Licensee must, within the Warranty Period, notify Scinaptic in writing via the Scinaptic Website or using the contact details at the front of this EULA;
(b) if the Software has been delivered in the form of CD/DVD ROM. Licensee must at its cost return such CD/DVD ROM to Scinaptic; and
(c) Scinaptic will replace the Software at no charge to Licensee.
37. Permitted Exclusions: Subject to the clauses 33 and 34 and any express warranties provided in this EULA, all representations, warranties, guarantees, terms and conditions which would otherwise be implied in or imposed on this EULA in connection with any goods or services supplied by Scinaptic or otherwise relating to the performance of Scinaptic’s obligations under this agreement, are excluded. Scinaptic does not warrant that the Software will be error free or that its use will be uninterrupted, that it will operate in combination with other software or any particular equipment or system, that it will provide any function other than set out in the Documentation, or that it does not infringe the rights of any third party.
38. Limitation of Liability: Subject to clauses 33 and 37 and to the extent permitted by law:
(a) Scinaptic will not be liable to Licensee for any special, indirect or consequential loss of damage, any loss of profit or business opportunity, any business interruption or loss of business information arising out of or relating to this EULA, including claims arising out of the use or not being able to use or any defect in the Software, support or maintenance services; whether at common law, under contract, tort (including negligence), in equity, pursuant to statue or otherwise, even if Scinaptic has been advised of the possibility of such loss;
(b) Scinaptic’s liability for any claim arising from a breach of warranty under this EULA or any term, condition or guarantee implied or imposed by statute which by law cannot be excluded (including any Consumer Guarantees) is limited, at the option of Scinaptic, to the repair or replacement of the goods, the re-supply of those services or the payment of the cost of re-supplying those services; and
(c) Scinaptic’s total liability to Licensee under or in relation to this agreement however arising, including under contract, tort (including negligence), under statue or otherwise, arising out of any act, omission or event or connected series of acts, omissions or events will not exceed in aggregate the total amount of Fees paid by Licensee under this EULA.
Termination
39. Licence Term: The licence granted under clause 4 or 5 in this EULA is perpetual unless terminated by Scinaptic or Licensee in accordance with its terms.
40. Termination by Licensee: The Licensee may terminate this EULA at any time by giving written notice to Scinaptic and complying with the conditions of clause 42.
41. Termination by Scinaptic: Scinaptic may terminate this EULA immediately by giving written notice to the Licensee if Licensee:
(a) fails to pay any fees which are due and payable under this EULA within 30 days;
(b) fails to comply with any term or condition of this EULA; or
(c) becomes bankrupt or insolvent.
42. Consequences of Termination: Upon termination or expiry of this EULA for any reason the Licensee must:
(a) immediately pay any outstanding amounts owed to Scinaptic under this EULA and with respect to any Enterprise Licensee under a subscription package, all remaining subscription fee instalments over the 3 year minimum period;
(b) remove the Software from each server and each computer or terminal on which it is installed;
(c) cease all use or exploitation of any intellectual property or confidential information of Scinaptic relating to the Software; and
(d) deliver up or destroy (at Scinaptic’s option) all copies of the Software and Documentation that are in the possession of Licensee.
43. Surviving Clauses: Expiry or termination of this EULA for any reason does not affect the rights and obligations of either party arising prior to termination. Clauses 15, 25 to 27, 29, 31 to 38 and 42 survive the termination or expiry of this EULA for any reason.
44. General:
(a) Entire Agreement: This EULA constitutes the entire agreement between Scinaptic and the Licensee in relation to its subject matter and any prior representations, statement or undertaking howsoever made are expressly excluded.
(b) Amendments: Scinaptic reserves the right to modify the terms of this EULA from time to time and any such modifications will take effect once published on the Scinaptic Website or otherwise notified to Licensee. Subject thereto, no amendment or modification to this EULA is valid unless it is in writing and signed by an authorised representative of Scinaptic.
(c) Severance: If any provision of this EULA is declared illegal or unenforceable, such provision is to be severed from this EULA and all other provisions of this EULA will remain in full force and effect.
(d) Waiver: Any delay or failure by Scinaptic in enforcing its rights under this EULA is not to be construed as a waiver of those rights.
(e) Assignment: The Licensee may not assign, sub-contract or otherwise transfer any of the Licensee’s rights or obligations under this EULA unless Scinaptic has given its prior written consent.
(f) Novation: Scinaptic may by written notice to the Licensee transfer its rights and obligations under this EULA pursuant to a novation agreement in favour of a transferee who accepts all obligations of Scinaptic under this EULA. The Licensee must do all things necessary to give effect to such novation, including the execution of relevant documents.
(g) Vienna Convention: The United Nations Convention on Contracts for the International Sale of Goods will not apply in any way to the Software or this EULA.
(h) Governing law and jurisdiction: This EULA is governed by the laws of New South Wales, Australia and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.
