Lubrication and Tune-Up Guide CD
END-USER SOFTWARE USAGE AGREEMENT
IMPORTANT - READ CAREFULLY: This End-User Software Usage Agreement ("Agreement") is a legal agreement between the party who is paying for the use of the Lubrication & Tune-Up Guide CD ("you" or "User") and Infomedia Ltd of Sydney, Australia ("Infomedia") for the basic Lubrication & Tune-Up Guide CD system, which includes computer software, data, updates, and associated media and printed materials, and may include 'online' or electronic documentation ("Lubrication & Tune-Up Guide CD" or "the Software"). By installing or otherwise using the Lubrication & Tune-Up Guide CD, you agree to be bound by the terms of this Agreement. If you do not agree to these terms, promptly return the Lubrication & Tune-Up Guide CD to Infomedia or the Authorised Supplier for a full refund.
RECITALS
Infomedia, who is the developer of the Lubrication & Tune-Up Guide CD, has the sole worldwide rights to license the use of the Lubrication & Tune-Up Guide CD complete workshop servicing solution, and certain data relating to automotive servicing and tune-up specifications.
You represent that you desire to use the Lubrication & Tune-Up Guide CD in accordance with the terms of this Agreement and for the Price agreed between you and the Authorised Supplier.
Accordingly, Infomedia has agreed to grant to the User non-exclusive use of the Lubrication & Tune-Up Guide CD in consideration for the Price hereafter paid to the Authorised Supplier of the Lubrication & Tune-Up Guide CD and subject to the terms and conditions set out in this document.
This Agreement shall take effect from the first receipt of the Software by the User or its installation agent, whether by physical or electronic means.
By installing and using the Lubrication & Tune-Up Guide CD, the User hereby acknowledges and accepts the above recitals and the following terms and conditions and as they may be reasonably amended from time to time.
1. DEFINITIONS
"Authorised Supplier" means Infomedia or any of its authorised distributors;
"Authorised Workstation" means a single computer Workstation Equipment running the Lubrication & Tune-Up Guide CD per copy of the product purchased;
"Data" means the information pertaining to automotive servicing and tune-up specification information for motor vehicles, which is supplied to the User by Infomedia in human and machine readable form from time to time;
"User" and "you" means the individual or entity which is party to this Agreement and its employees, agents, representatives and assigns as applicable;
"Infomedia" means Infomedia Ltd;
"Price" means the once-only charge payable to the Authorised Supplier for the usage of the software on only one workstation at a time;
"Shelf-life" means the one calendar year being the year during which the Price is paid and for which the Software is warranted for use. Use of the Software beyond its Shelf-life is not recommended and may produce unintended results and errors.
"Site" means the single physical place of business of the User where the Authorised Workstation resides;
"the Software" or "Lubrication & Tune-Up Guide CD" means (both individually and collectively, as the context requires) the Infomedia programs, data, and codes, manuals, updates and other associated documentation;
"Workstation Equipment" means PC equipment configuration consisting (at a minimum) of a Pentium 200, 64MB RAM, 1 GB hard disc available for the Lubrication & Tune-Up Guide CD's sole use, sound card, SVGA screen, DVD/CD-ROM player, a standard 25 pin parallel communications port (LPT) or USB port and one of the following operating systems: Windows 98, Windows 2000, Windows ME, Windows XP or Window NT Client 4.x.
2. TERM
2.1 This Agreement shall be continuous, subject to the terms of this Agreement, including any rights of termination.
3. LICENCE
3.1 Infomedia hereby grants to the User non-exclusive, non-transferable use of the Software on Authorised Workstations at the Site, subject to the terms and conditions of this Agreement.
3.2 In consideration of the terms of usage granted under this clause, the User shall pay the Price to the Authorised Supplier.
3.3 User acknowledges that this Agreement shall grant the User a right to use the Lubrication & Tune-Up Guide CD for an unlimited period of time. However, User further acknowledges that any warranties offered under this Agreement are only valid for a limited period of time, that being the Shelf-life of the Software and not longer and for which the Price is paid in accordance with Clause 7.
3.4 User further acknowledges that all copyright and all other ownership rights and goodwill in any and all parts of the Software and any replacement, update or modification of any part of the Software remain the sole and exclusive property of Infomedia and its successors. NO PROPRIETARY RIGHTS ARE VESTED IN THE USER. The Software remains the property of Infomedia.
3.5 For the Price paid by the User, the User shall receive title to the physical media on which the Software is provided and its associated packaging (if any). Infomedia retains ownership of the Software.
4. USE OF THE SOFTWARE
4.1 The User may only use the Software on Authorised Workstations for which the Price has been paid. The Software shall be used solely on the Authorised Workstations at the Site and in the manner described in the manuals and documentation provided. User shall not make any copies of the Software nor load it onto any distribution device except as provided for in Clause 4.3.
4.2 The User will not copy any Data from the Lubrication & Tune-Up Guide CD CD-ROM nor from any other form of electronic transmission, distribution or storage device.
4.3 The User shall not load the Software and Data onto a Local Area Network ("LAN") nor access the Software and Data from a LAN unless the Price for the Software has been paid in accordance with Clause 7 and the User warrants that the Software can and will only be used on the individual Authorised Workstation located at the Site which may be connected to that LAN from time to time.
4.4 The User agrees that it shall not:
(i) except as permitted in this Agreement, make or permit any other person to make a copy of the Software or the Data or any part thereof;
(ii) make use of any part of the Software or the Data for or on behalf of any unauthorised person, entity or organisation, nor permit any unauthorised person, entity or organisation to utilise the Software;
(iii) make or permit to be made any additions or modifications to the Software and/or the Data without the prior written consent of Infomedia. Any unauthorised modifications to the Software may void certain warranties given under this Agreement and be considered an infringement of copyright laws;
(iv) attempt in any manner to reverse engineer the Software;
(v) access the Data by any means other than via the Software.
5. MAINTENANCE
5.1 Infomedia shall during the continuance hereof provide Maintenance Services to User in respect of the use of the Software on Authorised Workstations.
5.2 In the event that Infomedia provides the User with services other than those set out herein, Infomedia shall be entitled to charge User, for such service provided User authorises such charges in writing.
5.3 For the purposes of this Agreement the term "Maintenance Services" includes the provision of the following services:
(a) delivery of updated or improved version(s) of the Software and/or Data, but excluding optional modules, produced by Infomedia during the period of this Agreement and distributed by Infomedia at Infomedia's sole discretion.
(b) the investigation and, to the extent possible, the correction of any failure of the programs to meet the functional specifications in the Software instructions, provided that:
(i) any failure shall be demonstrable on the Workstation Equipment;
(ii) notice is given to Infomedia promptly after any such failure becomes known;
(iii) the Software, operating programs and Workstation Equipment have been properly installed, operated and maintained; and
(iv) the failure is not due to a fault in the Workstation Equipment, nor the fault of software not licensed by Infomedia to the User.
(c) telephone hot-line support during normal business hours.
5.4 Nothing in this Agreement shall entitle User to the provision of enhancements to the Software which provide greater functionality than was provided by the Software at the time this Agreement is entered into, although the Authorised Supplier or Infomedia may offer such enhancements to User during the term of this Agreement.
5.5 In the event that User fails to install an updated version of the Software provided by Infomedia then Infomedia shall be relieved of its obligations under Clauses 5 and 9 herein, until said update Software is installed.
5.6 Any replacement, update or modification of any part of the Software received by the User from Infomedia shall become part of the Software and the rights of the User to use such replacement, update or modification shall be governed by the terms of this Agreement and reference to the Software in this Agreement shall include all such replacements, updates and modifications from time to time. Within 7 days of receipt of an Update the User shall securely and permanently dispose of or return to Authorised Supplier, postage prepaid, any media in the possession of User which was provided to User containing earlier Updates of the Software replaced or superseded by said replacements, updates or modifications.
6. SOFTWARE AND UPDATES
6.1 For the purposes of this Agreement the term "Update" shall mean an updated copy of either or both of the Software and Data, in whole or in part, which is supplied to you whether physically or by electronic means.
6.2 Infomedia may, as required during the Shelf-life of the Software and the currency of this Agreement and any renewals thereof, and at Infomedia's sole discretion, arrange for the Authorised Supplier to provide you with such Updates as it releases to its other like Users.
7. PAYMENTS
7.1 The user has agreed to pay the Authorised Supplier of the Software an up-front purchase Price for the Lubrication and Tune-up Guide CD, entitling it to use the product in accordance with the terms of this Agreement.
7.2 In the event the User fails to pay the Price when due, this Agreement shall be deemed as terminated on the part of the User and the provisions of clauses 8.2 and 8.4 shall take effect and the provision of Maintenance Services or any Updates will be immediately suspended by Infomedia.
8. TERMINATION
8.1 Infomedia shall be entitled to terminate this Agreement at any time following breach of any term of this Agreement by the User which continues for at least 30 days after notice of such breach has been given to User by Infomedia. In the event that such breach relates to a failure by the User to pay any portion of the Price in accordance with this Agreement or the unauthorised copying or distribution of the Software, Infomedia may terminate this Agreement immediately.
8.2 In the event that the User loses its authorisation from Infomedia to receive the Data, this Agreement shall be immediately terminated.
8.3 If this Agreement is terminated for any reason the User shall immediately stop using all copies of the Software, Data, Updates, replacements and modifications, provided by Infomedia during the term of this Agreement. Any Software not previously destroyed or returned, shall be returned forthwith to Infomedia or Authorised Supplier within 7 days.
9. WARRANTIES
9.1 LIMITED WARRANTY - Infomedia warrants that the Lubrication & Tune-Up Guide CD will perform substantially in accordance with its accompanying product information for the term of this Agreement. Any warranties in respect of the Lubrication & Tune-Up Guide CD are limited to the Shelf-life of the Software or the shortest period permitted by applicable law, whichever is greater.
9.2 Infomedia does not warrant that the Software or the Data is error free.
9.3 The User acknowledges, by acceptance of these terms, that it has relied on its own commercial analysis and judgement in selecting the Software and has not relied on any promise, representation, warranty or undertaking made or given by Infomedia, the Authorised Supplier or any person or company on their behalf in relation to any results, consequences or benefits to be obtained from the delivery or use of the Software.
9.4 CUSTOMER REMEDIES - Infomedia's entire liability and your exclusive remedy shall be, at Infomedia's options, either (a) return of the Price or, (b) repair or replacement of the Software that does not meet Infomedia's Limited Warranty and which is returned to Infomedia by the User. This Limited Warranty is void if failure of the Software has resulted from accident, abuse or misapplication. Any replacement of the Software will be warranted for the remainder of the original warranty period.
9.5 NO OTHER WARRANTIES - TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INFOMEDIA DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE, THE ACCOMPANYING PRODUCT INFORMATION AND AUTHORISED WRITTEN MATERIALS. THE LIMITED WARRANTY CONTAINED HEREIN GIVES YOU SPECIFIC LEGAL RIGHTS.
9.6 NO LIABILITY FOR CONSEQUENTIAL DAMAGES - TO THE MAXIMUM EXTEND PERMITTED BY APPLICABLE LAW, INFOMEDIA, THE AUTHORZED SUPPLER, INFOMEDIA'S SUPPLIERS AND AGENTS SHALL NOT BE LIABLE FOR ANY OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF ANY REPRESENTATIVE OR AGENT OF INFOMEDIA OR OTHER PARTY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, INFOMEDIA'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE PRICE PAID BY YOU FOR THE USE OF THE SOFTWARE.
9.7 This document constitutes the entire agreement and understanding between the parties in relation to the use and supply of the Software.
9.8 Subject to this clause 9 of this Agreement, all conditions and warranties which would or might otherwise be implied in this Agreement are hereby excluded to the extent permitted by law.
10. FORCE MAJEURE
10.1 Neither Infomedia nor the User shall be liable in any circumstances whatsoever for any failure to perform any obligations required to be completed by Infomedia or the User herein, where such failure is due to any cause beyond the reasonable control of Infomedia or the User, except for the making of payments as and when they fall due.
11. GENERAL
11.1 Any duties, goods and services tax, value added tax, sales tax or any other governmental charge levied in respect of the Software, its delivery or any other goods or services supplied pursuant to this Agreement shall be payable and in addition to the Price payable by the User unless the Authorised Supplier has provided other terms in addition to, or in substitution of these terms, in writing to you.
11.2 The User hereby provides consent to the Authorized Supplier to use e-mail, fax or other means of communication to provide User with information regarding hardware, software or service offerings that are in use by User or that might be adopted and implemented by User.
11.3 Infomedia may, at any time, assign or sub-contract all or part of its rights and obligations under this Agreement. This Agreement may not be assigned or sub-contracted by the User without the prior written authorisation of Infomedia.
11.4 This Agreement is governed by the laws of the State of New South Wales and the parties submit to the jurisdiction of the Courts of New South Wales for determining any dispute concerning this Agreement.
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