Black Box Software (Software”) and the related website and other media is owned and operated by Black Box Trading Company Pty Ltd ABN 14 645 397 342 ("We", "Us", "Our").
Your access to and use of the Software is subject to the terms of this End User Licence Agreement (“EULA”). By using the Software, You have accepted and agreed to this EULA. PLEASE READ THIS EULA CAREFULLY BEFORE USING THE SOFTWARE. We may amend this EULA at any time at Our discretion. Please review the EULA periodically as Your continued use of the Software indicates Your agreement to any changes made. Any amended terms of the EULA shall automatically be effective from the time and date of publication (unless otherwise stated). If You do not agree with such amendments, You must cease to use the Software.
1. DEFINITIONS & INTERPRETATION
In this EULA unless inconsistent with the context or subject matter:
- (a) “Content” includes any material, text, information, pictures, touls, sound, graphics, video and other data forming part of or contained in the Software from time to time whether in written form or otherwise;
- (b)"Fee" means the initial fee and any subsequent fees payable to Us to access the Software which may be paid by You or on Your behalf;
- (c) "Force Majeure" means an act, omission or circumstance over which We could not reasonably have exercised control;
- (d) "IP Rights" means all rights comprised in:
- (i) copyright and other like rights of authorship;
- (ii) any patent and registrations and applications for registration thereof and all rights in inventions or innovations whether patentable or not;
- (iii) any trade marks, trade names, domain names and registrations and applications for registration thereof;
- (iv) any design or eligible layout and registrations and applications for registration thereof;
- (v) rights to protect trade secrets, know how or confidential information;
- (vi) rights to apply for registration, renewal or extension of those or like rights under a statute; whether now or in the future throughout the world;
- (e) “Loss” means any loss, liability, cost, charge, expense, tax or damage of any nature whatsoever, including lost profits, loss of goodwill, loss of business, loss of production, loss of life and any other special, incidental, exemplary, compensatory or consequential damages, losses, expenses, or lost or stolen data or other data production stoppage, or consequential or indirect loss or damage howsoever arising or caused, including, without limitation, negligence, tort, contract or statute;
- (f) "Processed Data" means specific information and data derived from cleaning, organising and deidentifying the User Data which You acknowledge may include the User Data in some form;
- (g) "New IP" means all and any IP Rights used, reflected or comprised in any works, information or material owned, licensed, created, made, conceived, invented, developed, discovered or reduced to practice (whether reduced to writing or not) by either party in or by the Software;
- (h) “Software” means the online digital program to collect, clean, refine, organise and disseminate data from the livestock supply line which is developed by Us and includes all Content, User Data and the name “Black Box”;
- (i) “Related Entity” has the meaning given to it in section 9 of the Corporations Act 2001 (Cth);
- (j) "Services" means the provision of the Software and the information and remote support for the use of the Software but excludes training or correction of User errors or misuse;
- (k) "Term" means the period commencing on the date We activate Your access to the Software for the duration that the Fee is paid unless and until terminated in accordance with this EULA;
- (l) “User” means any user of the Software;
- (m) "User Data" means basic information and data relating to the User and the individual animal production and treatment of the User’s livestock;
- (n) “You” and “Your” means any person who uses the Software or any part of it, for any purpose whatsoever.
In this EULA, unless inconsistent with the context or subject matter:
- (a) a reference to a person includes any other legal entity;
- (b) a reference to a legal entity includes a person;
- (c) words importing the singular number include the plural number;
- (d) words importing the plural number include the singular number;
- (e) the masculine gender must be read as also importing the feminine or neuter gender;
- (f) a reference to a party includes the party's heirs, executors, successors and permitted assigns;
- (g) headings are for reference purposes only and must not be used in interpretation;
- (h) where any word or phrase is given a defined meaning any other part of speech or other grammatical form concerning the word or phrase has a corresponding meaning;
- (i) a reference to a statute includes all regulations and subordinate legislation and amendments;
- (j) references to writing include any mode of representing or reproducing words in tangible and permanently visible form, and includes e-mail and fax;
- (k) a reference to a monetary amount is a reference to an Australian dollar amount (unless otherwise specified);
- (l) an obligation of two or more parties binds them jointly and each of them severally;
- (m) an obligation incurred in favour of two or more parties is enforceable by them severally;
- (n) references to time are to local time in Queensland;
- (o) where time is to be reckoned from a day or event, the day or the day of the event must be excluded;
- (p) a reference to a business day means any day on which trading banks are open for business in Queensland;
- (q) if any time period specified in this agreement expires on a day which is not a business day, the period shall expire at the end of the next business day;
- (r) a reference to a month means a calendar month; and
- (s) a reference to data includes metadata.
2. ACCESS AND LICENCE
- 2.1 In consideration of payment of the Fee, We grant to You a non-exclusive, non-assignable licence to use the Software in accordance with its normal and intended functionality and strictly in accordance with this EULA.
- 2.2 You must not disclose Your access or login details for the Software to any other person.
- 2.3 You acknowledge and agree with Us that You will not, as a result of being granted a non- exclusive licence, acquire any rights (including without limitation intellectual property or other intangible rights) in the Software or any part of it, other than the non-exclusive rights granted in accordance with this EULA.
- 2.4 The non-exclusive licence does not include the right to use any data mining robots or other extraction tools and does not permit You to metatag or mirror the Software without our prior written permission.
- 2.5 Any use of the Software not specifically permitted, designed or intended is strictly prohibited.
- 2.6 In order to use the Software, You require the equipment and connections necessary to access the World Wide Web. You are responsible for:
- (a) the provision of any such connection or access to the World Wide Web;
- (b) the payment of any fees associated with such connection or access (such as those charged by an internet service provider or other online service); and
- (c) the provision of all equipment necessary for You to make any such connection to the World Wide Web, including a computer and a modem.
- 2.7 If You access or use the Software on behalf of a company or other entity, You represent that You have authority to bind such entity to this EULA and that it is fully binding on it. In such case, the term “You” will refer to You personally and such entity jointly and severally. If You do not have authority, You may not access or use the Software.
3. USER DATA
3.1 In order to use the Software You will be prompted to provide Your User Data.
3.2 You warrant that all User Data;
- (a) Is up to date, accurate and complete; and
- (b) Is not false or misleading
3.3 You grant to Us an irrevocable, royalty-free licence and right to store, use, reproduce, modify, adapt, publish, translate and create derivative works from any Processed Data, User Data or parts of it for purposes consistent with Our business including for research or commercialisation.
3.4 If applicable, You are responsible for ensuring that we hold Your current, accurate and complete contact and billing details at all times. Any changes to Your contact or billing details must be notified to Us immediately.
4. YOUR OBLIGATIONS
4.1 You must comply with all terms of this EULA and all other terms incorporated by reference.
4.2 You must also comply with all applicable domestic (including common law) and international laws, statutes, ordinances and regulations regarding Your use of the Services.
4.3 Your access to and use of the Software, any Services, and any User Data, must not:
- (a) be false, inaccurate or misleading;
- (b) be fraudulent or deceptive;
- (c) impersonate or otherwise misrepresent Your identity or affiliation with any other person or entity;
- (d) infringe any third party’s copyright, patent, trade mark, design, trade secret, intellectual property or other proprietary rights or rights of publicity or privacy;
- (e) violate any applicable law, statute, ordinance or regulation (including those governing consumer protection, unfair competition, criminal law, antidiscrimination or trade practices law such as the Competition and Consumer Act 2010 (Cth));
- (f) be defamatory, trade libellous, unlawfully discriminatory, threatening or harassing;
- (g) be obscene, pornographic or indecent or contain adult material or vulgar, profane, discriminatory, offensive or racist language;
- (h) contain comments of a religious, political or social nature;
- (i) contain any viruses, trojan horses, worms, time bombs, trap doors, back doors, spiders, robots, screen scrapers, data aggregation tools or other computer programming routines that may or are intended to damage, modify, delete, interfere with, surreptitious intercept, access without authority or expropriate any system, data or personal information or otherwise affect the integrity, operation or security of the Software;
- (j) interfere with or disrupt the Services or servers or networks connected to the Software, or disobey any requirements, procedures or regulations of networks connected to the Software;
- (k) create liability for Us or cause Us to lose (in whole or in part) the services of Our internet service provider, other Users or other suppliers;
- (l) damage the credibility or integrity of the Services or Us;
- (m) breach or violate any Policy;
- (n) link directly or indirectly to or include anything that:
- (i) You do not have a right to link to or include;
- (ii) could cause Us to violate any applicable law, statute, ordinance or regulation.
4.4 You acknowledge and agree that You must not:
- (a) commit or permit any act which may interfere with the access to or use of the Software or the Services by any other User;
- (b) use the Software to send junk, obscene, indecent, offensive or threatening electronic mail or electronic mail in contravention of the Spam Act 2003 or any similar legislation to any person or company;
- (c) attempt to gain unauthorised access to the Software or the Services or computer systems or networks connected to the Software or any Services through any means;
- (d) tamper with, hinder the operation of or make unauthorised modifications to the Software or any part thereof;
- (e) damage or modify the Software or the Services or any part thereof;
- (f) reverse engineer, decompile or disassemble the Software or any part thereof;
- (g) copy, republish, frame, download, transmit, rent, lease, loan, sell, distribute, licence or sublicense the Software or any part thereof; or
- (h) modify, alter, adapt, disassemble, reverse engineer, decompile or amend any Content or any part thereof in any way.
5.1 All personal information that We process will be managed and used in accordance with good business practices.
5.2 We will gather information:
- (a) When You access the Software;
- (b) During communications with You; and
- (c) During the performance of the Services.
5.3 We will only use or disclose information:
- (a) To the extent required in order to properly provide and operate the Software and Services;
- (b) To improve the Software;
- (c) To communicate with the user including sending information or marketing material by email;
- (d) For internal purposes;
- (e) To Our advisors;
- (f) To gather statistical data and/or to monitor broad user patterns and trends;
- (g) For research purposes;
- (h) As and when required by law; or
- (i) With Your consent.
5.4 You acknowledge that;
- (a) You authorise Us to use, store or otherwise process any User Data to the extent reasonably necessary for the provision of the Software and any Services to You.
- (b) You must ensure that the information You provide to Us contains Your correct name, address, e-mail address and other requested details.
5.5 We also receive data from or about the computer, mobile phone, or other device You use to access the Software. This may include network and communication information, such as Your IP address or mobile phone number, and other information about things like Your internet service, operating system, location, the type (including identifiers) of the device or browser You use, or the pages You visit.
6. NATURE OF SOFTWARE
6.1 We strive to ensure that our Content and Services are described as accurately as possible, however We do not warrant that the description is accurate. Where We become aware of any misdescription, error or omission, We reserve the right to correct it. Images and graphs are provided for illustrative purposes only.
6.2 The Services are designed to allow You to gain insights from Processed Data.
6.3 We are not responsible under any circumstances, including negligence, for any errors or omissions, or for the results obtained from the use of the Software. In no event will We or any Related Entity, officers, directors, agents, employees, consultants or contractors be liable to a User or any third party for any decision made or action taken or omission in reliance on the Services provided or for any Loss, even if advised of the possibility of such damages.
6.4 We have exercised Our best efforts and judgement in developing the Software and compiling the information on the Software and in the Services to ensure the information is correct, current and complete, however You acknowledge that:
- (a) the User accesses the Software at its own risk;
- (b) the Software is provided for information and general advisory purposes only and does not constitute professional or financial advice; and
- (c) the Software should not be relied upon or regarded as a comprehensive assessment or evaluation or recommendation regarding User Data or Your livestock quality or value.
6.5 WITHOUT LIMITING ANY OTHER CLAUSE, TO THE EXTENT PERMITTED BY LAW, THE SOFTWARE IS PROVIDED WITH NO GUARANTEE OR WARRANTY OF COMPLETENESS, ACCURACY OR TIMELINESS OR OF THE ASSUMPTIONS USED OR RESULTS OBTAINED FROM THE USE OF IT, AND WITHOUT GUARANTEE OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF PAST, PRESENT OR FUTURE PERFORMANCE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. INTELLECTUAL PROPERTY
7.1 The parties acknowledge and agree that:
- (a) We own the IP Rights in the Software immediately on creation and at all times and that no right, title or interest in those IP Rights is transferred or granted to the User other than as expressly provided in this EULA; and
- (b) You own the IP Rights in Your Processed Data and that no right, title or interest in those IP Rights is transferred or granted to Us other than as expressly provided in this EULA.
7.2 You must not at any time assert any right to or over the IP Rights in the Software or take, appropriate, or represent any or all such IP Rights as Your own.
7.3 You undertake not to take or permit or omit any action which would or might:
- (a) invalidate or put in dispute Our title in the Intellectual Property or any part of it;
- (b) oppose any application for registration or invalidate any registration of the Intellectual Property or any part of it;
- (c) support any application to remove or undo Our title in the Intellectual Property or any part of it; or
- (d) assist any other person directly or indirectly in any of the above.
7.4 Unless otherwise agreed in writing, the parties agree that any New IP will be the sole and exclusive property of Us and You hereby assign all New IP to Us and agree to promptly sign all documents and do all things necessary to register, vest or transfer any interest or ownership in such New IP to Us and, if necessary, to consent to the use of such New IP by Us in the course of Business including for research or commercialisation.
7.5 Without limitation, the "Black Box" logo and name are owned by Us, and may not be used as part of Your business or in connection with any goods or services without Our prior written consent which shall be given, given with conditions or withheld at Our absolute discretion.
7.6 You acknowledge and agree that You will not copy, reproduce, alter, modify, create derivative works, or publicly display the Software Services, Software, or any part of it unless with the prior written permission from Us or the appropriate third party authorised to grant such permission and when doing so You must acknowledge Us and, for electronic uses, include a link to Our Software.
7.7 We may at Our sole and absolute discretion refuse or remove any Content or User Data from the Software.
8. LINKS AND ADVERTISING
8.1 You must not link the Software from any other website not owned or operated by Us without Our prior written consent.
9.1 Upgrades and updates may be made to the Software from time to time. Such upgrades or updates may occur automatically and remotely with or without prior warning.
9.2 You acknowledge and agree that this EULA apply to updates, supplements, add on components, or internet-based services or components of the Software together with any other terms along with the update, supplement, add on component or internet-based services or components which We provide.
9.3 We reserve the right to discontinue any internet-based services provided to You or made available to You through the use of the Software at any time.
10. MAINTENANCE AND TECHNICAL SUPPORT
10.1 In consideration of payment of the Fee and compliance with this EULA, We will provide the Services. You acknowledge that the Services may not be live and are not provided with any minimum response period or service level. No minimum service levels are offered or agreed.
10.2 We will endeavour to carry out any non-urgent support services, upgrades, updates, supplements, add on components, or other internet-based services or components outside of usual business hours. We will provide reasonable notification of any anticipated downtime.
11. BREACH AND TERMINATION
11.1 Without limiting other remedies available to Us at law, in equity or under this EULA or any other Policy or otherwise, We may, in Our sole discretion, immediately issue a warning, temporarily suspend, indefinitely suspend or terminate Your access to the Software or any part of them and/or refuse to provide the Services, or any part of them, to You (including preventing You from accessing the Software) if:
- (a) The Fee is not paid as and when required;
- (b) You breach this EULA and fail to remedy the breach within 2 business days of Our notice to do so; or
- (c) You use or attempt to use or allow the use of the Software for any purpose inconsistent with this EULA;
- (d) We are unable to verify or authenticate Your User Data; or
- (e) We believe that Your actions may cause legal liability for You, other Users or Us; or
- (f) In Our sole opinion, Your conduct, acts or omissions threaten, interfere or impact upon the integrity or credibility of the Services or any part of them (or the operation thereof) or Us; or
- (g) We suspect that You (by conviction, settlement, insurance or escrow investigation, or otherwise in Our sole discretion) have engaged in fraudulent or deceptive activity in connection with Our Software.
11.2 We may immediately terminate Your access to or use of the Services in the event of:
- (a) unexpected technical or security issues or problems; and/or
- (b) prolonged Force Majeure.
11.3 In addition to any other rights either party may, by 1 months' written notice to the other, terminate a User's access to the Services. Any amounts paid in advance will be refunded at Our discretion.
12. EFFECT OF EXPIRY OR TERMINATION
12.1 On expiry or termination of a User's access to the Software:
- (a) We will cease to provide access to and use of the Software;
- (b) the User must destroy all evidence of any usernames, passwords, internet protocol addresses and other like matters;
- (c) all payments previously made by, or on behalf of the User, remain the property of Us and no party may make any claim in respect of such payments;
- (d) We may, but are not obliged to, delete all User Data which is held in the Software or otherwise in Our records.
12.2 You agree that all terminations for cause shall be made in Our sole discretion and that We shall not be liable to You or any third party for any termination of Your account or access to the Services or loss of User Data.
12.3 Any rights which may have accrued to either party shall be unaffected.
12.4 All rights contained in this EULA which are capable of doing so shall survive the expiration or termination of this EULA.
13. WARRANTIES AND DISCLAIMERS
13.1 We provide the Software, Services, Software and Content on an “as is” basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law.
13.2 To the extent permitted by law:
- (a) We specifically disclaim any implied warranties including in relation to title, merchantability, fitness for a particular purpose and non-infringement;
- (b) We do not guarantee continuous, uninterrupted or secure access to the Software, Services, Software, Content or User Data, and You acknowledge that operation of the Services may be interfered with by numerous factors outside Our control including without limitation operator error, provision of incorrect User Data, power failures, malicious interference, any downtime or interferences of the network provider or any other third party provider or contractor or other lack of coverage of the network used for the purpose of providing the Services;
- (c) We make no representations or warranties of any kind, express or implied that:
- (i) the Software will provide any function for which it is not specifically designed;
- (ii) the Software will provide any minimum level of performance;
- (iii) the Software will meet Your needs or requirements;
- (iv) the Software will be virus free or free of performance anomalies or be operational without interruption;
- (v) use of the Software will result in any particular outcome or benefit;
- (vi) Your access to or use of the Software, (including any related or linked websites), will be uninterrupted, timely, secure or error-free;
- (vii) the Software will be free of inaccuracies or typographical errors; or
- (viii) any errors will be corrected.
13.3 You warrant that You have not relied upon any representations, warranties or conditions offered or made by or on behalf of Us except to the extent expressly set out in this EULA.
13.4 You warrant and acknowledge to Us that as at the date of this EULA and for the duration of this EULA:
- (a) You Were not relying on any representation made by Us;
- (b) You have the legal right and power to enter into this EULA;
- (c) Your acceptance and performance of this EULA has been duly and validly authorised by any necessary corporate action;
- (d) this EULA is valid and binding on You, enforceable in accordance with its terms;
- (e) You are not insolvent and no controller has been appointed over any part of Your assets;
- (f) You are not bankrupt or in liquidation or administration and no proceedings have been brought or threatened for the purpose of bankrupting or winding You up.
14. LIMITATION OF LIABILITY
14.1 In no event shall We or any Related Entity, officers, directors, employees agents, contractors or suppliers be liable for any Loss arising out of or in connection with:
- (a) the Software;
- (b) the Services;
- (c) any failure or performance, error, omission, interruption, defect, delay in operation or transmission; or
- (d) line or system failure or the introduction of a computer virus or other technical sabotage; even if We are advised of the possibility or likelihood of such Loss.
14.2 WHERE THE LAWS OF ANY COUNTRY OR STATE IN WHICH THIS EULA ARE EFFECTIVE IMPLIES INTO THIS EULA ANY TERM, CONDITION OR WARRANTY, AND THOSE LAWS AVOID OR PROHIBIT PROVISIONS IN A CONTRACT EXCLUDING OR MODIFYING THEM, THEN THE TERM, CONDITION OR WARRANTY SHALL BE DEEMED TO BE INCLUDED IN THIS EULA PROVIDED THAT THE LIABILITY OF US, ANY RELATED ENTITY AND OUR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS FOR A BREACH OF ANY SUCH TERM, CONDITION OR WARRANTY, INCLUDING ANY LOSS WHICH YOU MAY SUSTAIN SHALL BE LIMITED, AT OUR OPTION, TO:
- (a) IN THE CASE OF OUR SERVICES, THE SUPPLY OF THE SERVICES AGAIN, OR THE PAYMENT OF HAVING THE SERVICES RESUPPLIED;
- (b) IN THE CASE OF THE SOFTWARE, THE PROVISION OF A REPLACEMENT COPY OF THE SOFTWARE OR THE PAYMENT OF OBTAINING A REPLACEMENT COPY OF THE SOFTWARE;
- (c) IN ANY OTHER CASE, THE LESSER OF THE TOTAL FEES YOU PAY TO US IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY AND AU$100.00.
14.3 The limitation and exclusion of liability in this clause applies whether the liability claim is based on breach of contract, under a warranty or an indemnity, tort (including negligence), under statute, in equity or otherwise.
15.1 YOU RELEASE US AND ANY RELATED ENTITY AND OUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR RELATED BODIES CORPORATE FROM ITS LIABILITY FOR ANY LOSS ARISING OUT OF THE USE OR INABILITY TO USE OR RELIANCE ON THE MATERIAL OR INFORMATION AVAILABLE ON OR ACCESSIBLE THROUGH THE SOFTWARE, EVEN IF WE HAVE BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES AND WHETHER OR NOT CAUSED BY ANY NEGLIGENT ACT OR OMISSION.
15.2 Without limiting this EULA, You release us from any Loss arising from the use of, or reliance on, the Services, whether or not caused by any negligent act or omission including but not limited to:-
- (a) Your reliance on the Software;
- (b) other Users' content, actions or inactions;
- (c) loss of use, data or profits on any theory of liability arising out of or in connection with the use of or the inability to use the Software or any part of it;
- (d) the statements or actions of any employee or agent of Ours;
- (e) information, data or other material provided to You by Us;
- (f) any unauthorised access to or alteration of Your transmissions or data including User Data;
- (g) any information that is sent or received or not sent or received;
- (h) any failure to store or loss of data or files or other content;
- (i) Your fraudulent, negligent or otherwise unlawful behaviour;
- (j) the posting of any unlawful, threatening, abusive, defamatory, obscene or indecent information, or material of any kind which violates or infringes upon the rights of any other person, including without limitation any transmissions that encourage or represent conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any applicable law
16.1 You agree to indemnify and hold Us and any Related Entity, and Our officers, directors, agents, employees, contractors and suppliers harmless from and against any actions, claims, demands, proceedings, Loss of every kind and nature, known and unknown, including solicitors’ fees and claims made by third parties, due to or arising out of or in connection with:
- (a) Your access to or use or misuse of the Software;
- (b) Your breach of this EULA;
- (c) Your violation of any law or the rights of a third party; even if We had been advised of the possibility of Loss.
17.1 Without limiting any other clause, You acknowledge that:
- (a) the World Wide Web exists across open public networks that are neither secure nor private. Accordingly, You acknowledge and accept the risk that any communication to or from the Software may be intercepted, used or modified by third parties;
- (b) You are responsible for assessing the reliability, accuracy, completeness, timeliness, suitability, quality, physical state or for a particular purpose of the material on or accessible through the Software including Content and User Data;
- (c) You accept all risks and responsibility for all Loss resulting from Your use of the Services or the material on or accessible through the Software;
- (d) We may change any of the Content at any time without notice but have no obligation to do so; and
- (e) No data transmission over the internet can be guaranteed as totally secure. Whilst We strive to protect Your User Data, We do not warrant and cannot guarantee the security of Your User Data which You transmit through the Software. Accordingly, any User Data which You transmit through the Software is transmitted at Your own risk. Nevertheless, once transmitted We will take reasonable steps to preserve the security of such User Data. You must inform Us immediately of any breaches of security or unauthorised use of Your User Data. For further details, please contact us for a copy of our Data Protection Policy.
18.1 Each account for use of the Software is personal to the holder and cannot be transferred or assigned or loaned to another party without our prior written consent which may be granted or refused in our absolute discretion. We cannot and do not warrant or guarantee the performance or effectiveness of the Software or Service which has been obtained from some other source.
18.2 Accessing or using the Software or any part of them and uploading User Data is done so at Your own risk and You will be responsible for compliance with the laws within Your jurisdiction.
18.4 Publication of electronic addresses in the Software is for the purpose of professional communication only and must not be used to infer consent to the receipt of unsolicited commercial electronic messages.
18.5 Access to the Software and Services is only available to, and may only be used by, persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Services are not available to persons under 18 years of age. If You do not qualify, do not use the Services.
18.6 We operate the Software from offices based in Australia and server hosts based in Australia. Content contained on the Software may not be appropriate or available for use in other locations. If You access the Software from other locations, You do so at Your own initiative and risk and You are solely responsible for compliance with local laws.
18.7 This EULA are governed by the laws of Queensland and the Commonwealth of Australia which are in force in Queensland. The parties submit to the jurisdiction of the Courts of Queensland, relevant Federal Courts and Courts competent to hear appeals from them. However, for Our exclusive benefit, We also retain the right to bring proceedings for urgent or injunctive legal or equitable relief in the courts of Your country of residence or Your principal place of business.
18.8 This EULA shall be for the benefit of and binding upon the parties and their heirs, executors, successors and permitted assigns.
18.9 If a clause of this EULA are void or unenforceable it must be severed from this EULA and the clauses that are not void or unenforceable are unaffected by the severance.
18.10 You agree that this EULA and all incorporated agreements may be assigned by Us, in Our sole discretion, to a Related Entity or third parties. You may not assign this EULA without Ours express prior written consent.
18.11 Our failure to act with respect to a breach by You or others does not constitute a waiver of that breach or waive Our right to act with respect to that breach or subsequent or similar breaches.
18.12 No waiver by a party of a provision of this Agreement is binding unless made in writing.
18.13 You agree that this EULA may not be construed adversely against Us solely because We prepared them.
18.14 Unless otherwise specified, this EULA comprises the entire understanding and agreement between You and Us with respect to the subject matter hereof.
18.15 Nothing in this EULA or Your use of the Services establishes or creates a joint venture, partnership, consortium, franchise, employment or agency relationship between the parties.
18.16 The contra proferentem rule and other rules of construction will not apply to disadvantage a party whether that party put the clause forward, was responsible for drafting all or part of it or would otherwise benefit from it.
18.17 Any notice or demand in writing required to be given by Us to You shall be sufficiently served if:
- (a) served personally or by pre-paid mail to Your last known address;
- (b) sent by facsimile machine to Your facsimile machine;
- (c) sent in electronic form by email to Your email address; or
- (d) published by notice on the Software.