Automatic collection of information
When you open the Website, our servers automatically record information that your browser sends. This data may include information such as your device's IP address, browser type and version, operating system type and version, language preferences or the webpage you were visiting before you came to the Website and Services, pages of the Website and Services that you visit, the time spent on those pages, information you search for on the Website, access times and dates, and other statistics.
Information collected automatically is used only to identify potential cases of abuse and establish statistical information regarding the usage and traffic of the Website and Services. This statistical information is not otherwise aggregated in such a way that would identify any particular user of the system.
Collection of personal information
You can access and use the Website and Services without telling us who you are or revealing any information by which someone could identify you as a specific, identifiable individual. If, however, you wish to use some of the features on the Website, you may be asked to provide certain Personal Information (for example, your name and e-mail address). We receive and store any information you knowingly provide to us when you create an account, publish content, or fill any online forms on the Website. When required, this information may include the following:
- Personal details such as name, country of residence, etc.
- Contact information such as email address, address, etc.
- Account details such as user name, unique user ID, password, etc.
- Geolocation data such as latitude and longitude.
- Any other materials you willingly submit to us such as articles, images, feedback, etc.
You can choose not to provide us with your Personal Information, but then you may not be able to take advantage of some of the features on the Website. Users who are uncertain about what information is mandatory are welcome to contact us.
Use and processing of collected information
In order to make the Website and Services available to you, or to meet a legal obligation, we need to collect and use certain Personal Information. If you do not provide the information that we request, we may not be able to provide you with the requested products or services. Some of the information we collect is directly from you via the Website and Services. However, we may also collect Personal Information about you from other sources. Any of the information we collect from you may be used for the following purposes:
- Create and manage user accounts
- Send administrative information
- Respond to inquiries and offer support
- Request user feedback
- Improve user experience
- Enforce terms and conditions and policies
- Protect from abuse and malicious users
- Respond to legal requests and prevent harm
- Run and operate the Website and Services
Processing your Personal Information depends on how you interact with the Website and Services, where you are located in the world and if one of the following applies: (i) you have given your consent for one or more specific purposes; this, however, does not apply, whenever the processing of Personal Information is subject to California Consumer Privacy Act or European data protection law; (ii) provision of information is necessary for the performance of an agreement with you and/or for any pre-contractual obligations thereof; (iii) processing is necessary for compliance with a legal obligation to which you are subject; (iv) processing is related to a task that is carried out in the public interest or in the exercise of official authority vested in us; (v) processing is necessary for the purposes of the legitimate interests pursued by us or by a third party.
Note that under some legislations we may be allowed to process information until you object to such processing (by opting out), without having to rely on consent or any other of the following legal bases below. In any case, we will be happy to clarify the specific legal basis that applies to the processing, and in particular whether the provision of Personal Information is a statutory or contractual requirement, or a requirement necessary to enter into a contract.
You are able to delete certain Personal Information we have about you. The Personal Information you can delete may change as the Website and Services change. When you delete Personal Information, however, we may maintain a copy of the unrevised Personal Information in our records for the duration necessary to comply with our obligations to our affiliates and partners, and for the purposes described below. If you would like to delete your Personal Information or permanently delete your account, you can do so by contacting us.
Disclosure of information
Depending on the requested Services or as necessary to complete any transaction or provide any service you have requested, we may share your information with your consent with our trusted third parties that work with us, any other affiliates and subsidiaries we rely upon to assist in the operation of the Website and Services available to you. We do not share Personal Information with unaffiliated third parties. These service providers are not authorized to use or disclose your information except as necessary to perform services on our behalf or comply with legal requirements. We may share your Personal Information for these purposes only with third parties whose privacy policies are consistent with ours or who agree to abide by our policies with respect to Personal Information. These third parties are given Personal Information they need only in order to perform their designated functions, and we do not authorize them to use or disclose Personal Information for their own marketing or other purposes.
We will disclose any Personal Information we collect, use or receive if required or permitted by law, such as to comply with a subpoena, or similar legal process, and when we believe in good faith that disclosure is necessary to protect our rights, protect your safety or the safety of others, investigate fraud, or respond to a government request.
Retention of information
We will retain and use your Personal Information for the period necessary to comply with our legal obligations, resolve disputes, and enforce our agreements unless a longer retention period is required or permitted by law. We may use any aggregated data derived from or incorporating your Personal Information after you update or delete it, but not in a manner that would identify you personally. Once the retention period expires, Personal Information shall be deleted. Therefore, the right to access, the right to erasure, the right to rectification and the right to data portability cannot be enforced after the expiration of the retention period.
Transfer of information
Depending on your location, data transfers may involve transferring and storing your information in a country other than your own. You are entitled to learn about the legal basis of information transfers to a country outside the European Union or to any international organization governed by public international law or set up by two or more countries, such as the UN, and about the security measures taken by us to safeguard your information. If any such transfer takes place, you can find out more by checking the relevant sections of this Policy or inquire with us using the information provided in the contact section.
The rights of users
You may exercise certain rights regarding your information processed by us. In particular, you have the right to do the following: (i) you have the right to withdraw consent where you have previously given your consent to the processing of your information; (ii) you have the right to object to the processing of your information if the processing is carried out on a legal basis other than consent; (iii) you have the right to learn if information is being processed by us, obtain disclosure regarding certain aspects of the processing and obtain a copy of the information undergoing processing; (iv) you have the right to verify the accuracy of your information and ask for it to be updated or corrected; (v) you have the right, under certain circumstances, to restrict the processing of your information, in which case, we will not process your information for any purpose other than storing it; (vi) you have the right, under certain circumstances, to obtain the erasure of your Personal Information from us; (vii) you have the right to receive your information in a structured, commonly used and machine readable format and, if technically feasible, to have it transmitted to another controller without any hindrance. This provision is applicable provided that your information is processed by automated means and that the processing is based on your consent, on a contract which you are part of or on pre-contractual obligations thereof.
The right to object to processing
Where Personal Information is processed for the public interest, in the exercise of an official authority vested in us or for the purposes of the legitimate interests pursued by us, you may object to such processing by providing a ground related to your particular situation to justify the objection.
Data protection rights under GDPR
If you are a resident of the European Economic Area (EEA), you have certain data protection rights and the Operator aims to take reasonable steps to allow you to correct, amend, delete, or limit the use of your Personal Information. If you wish to be informed what Personal Information we hold about you and if you want it to be removed from our systems, please contact us. In certain circumstances, you have the following data protection rights:
- You have the right to request access to your Personal Information that we store and have the ability to access your Personal Information.
- You have the right to request that we correct any Personal Information you believe is inaccurate. You also have the right to request us to complete the Personal Information you believe is incomplete.
- You have the right to request the erase your Personal Information under certain conditions of this Policy.
- You have the right to object to our processing of your Personal Information.
- You have the right to seek restrictions on the processing of your Personal Information. When you restrict the processing of your Personal Information, we may store it but will not process it further.
- You have the right to be provided with a copy of the information we have on you in a structured, machine-readable and commonly used format.
- You also have the right to withdraw your consent at any time where the Operator relied on your consent to process your Personal Information.
You have the right to complain to a Data Protection Authority about our collection and use of your Personal Information. For more information, please contact your local data protection authority in the European Economic Area (EEA).
California privacy rights
In addition to the rights as explained in this Policy, California residents who provide Personal Information (as defined in the statute) to obtain products or services for personal, family, or household use are entitled to request and obtain from us, once a calendar year, information about the Personal Information we shared, if any, with other businesses for marketing uses. If applicable, this information would include the categories of Personal Information and the names and addresses of those businesses with which we shared such personal information for the immediately prior calendar year (e.g., requests made in the current year will receive information about the prior year). To obtain this information please contact us.
How to exercise these rights
Any requests to exercise your rights can be directed to the Operator through the contact details provided in this document. Please note that we may ask you to verify your identity before responding to such requests. Your request must provide sufficient information that allows us to verify that you are the person you are claiming to be or that you are the authorized representative of such person. You must include sufficient details to allow us to properly understand the request and respond to it. We cannot respond to your request or provide you with Personal Information unless we first verify your identity or authority to make such a request and confirm that the Personal Information relates to you.
Privacy of children
We do not knowingly collect any Personal Information from children under the age of 18. If you are under the age of 18, please do not submit any Personal Information through the Website and Services. We encourage parents and legal guardians to monitor their children's Internet usage and to help enforce this Policy by instructing their children never to provide Personal Information through the Website and Services without their permission. If you have reason to believe that a child under the age of 18 has provided Personal Information to us through the Website and Services, please contact us. You must also be at least 16 years of age to consent to the processing of your Personal Information in your country (in some countries we may allow your parent or guardian to do so on your behalf).
The Website and Services use "cookies" to help personalize your online experience. A cookie is a text file that is placed on your hard disk by a web page server. Cookies cannot be used to run programs or deliver viruses to your computer. Cookies are uniquely assigned to you, and can only be read by a web server in the domain that issued the cookie to you.
Do Not Track signals
Some browsers incorporate a Do Not Track feature that signals to websites you visit that you do not want to have your online activity tracked. Tracking is not the same as using or collecting information in connection with a website. For these purposes, tracking refers to collecting personally identifiable information from consumers who use or visit a website or online service as they move across different websites over time. How browsers communicate the Do Not Track signal is not yet uniform. As a result, the Website and Services are not yet set up to interpret or respond to Do Not Track signals communicated by your browser. Even so, as described in more detail throughout this Policy, we limit our use and collection of your personal information.
We offer electronic newsletters to which you may voluntarily subscribe at any time. We are committed to keeping your e-mail address confidential and will not disclose your email address to any third parties except as allowed in the information use and processing section. We will maintain the information sent via e-mail in accordance with applicable laws and regulations.
In compliance with the CAN-SPAM Act, all e-mails sent from us will clearly state who the e-mail is from and provide clear information on how to contact the sender. You may choose to stop receiving our newsletter or marketing emails by following the unsubscribe instructions included in these emails or by contacting us. However, you will continue to receive essential transactional emails.
Links to other resources
The Website and Services contain links to other resources that are not owned or controlled by us. Please be aware that we are not responsible for the privacy practices of such other resources or third parties. We encourage you to be aware when you leave the Website and Services and to read the privacy statements of each and every resource that may collect Personal Information.
We secure information you provide on computer servers in a controlled, secure environment, protected from unauthorized access, use, or disclosure. We maintain reasonable administrative, technical, and physical safeguards in an effort to protect against unauthorized access, use, modification, and disclosure of Personal Information in its control and custody. However, no data transmission over the Internet or wireless network can be guaranteed. Therefore, while we strive to protect your Personal Information, you acknowledge that (i) there are security and privacy limitations of the Internet which are beyond our control; (ii) the security, integrity, and privacy of any and all information and data exchanged between you and the Website and Services cannot be guaranteed; and (iii) any such information and data may be viewed or tampered with in transit by a third party, despite best efforts.
In the event we become aware that the security of the Website and Services has been compromised or users Personal Information has been disclosed to unrelated third parties as a result of external activity, including, but not limited to, security attacks or fraud, we reserve the right to take reasonably appropriate measures, including, but not limited to, investigation and reporting, as well as notification to and cooperation with law enforcement authorities. In the event of a data breach, we will make reasonable efforts to notify affected individuals if we believe that there is a reasonable risk of harm to the user as a result of the breach or if notice is otherwise required by law. When we do, we will post a notice on the Website, send you an email.
Changes and amendments
We reserve the right to modify this Policy or its terms relating to the Website and Services from time to time in our discretion and will notify you of any material changes to the way in which we treat Personal Information. When we do, we will revise the updated date at the bottom of this page. We may also provide notice to you in other ways in our discretion, such as through contact information you have provided. Any updated version of this Policy will be effective immediately upon the posting of the revised Policy unless otherwise specified. Your continued use of the Website and Services after the effective date of the revised Policy (or such other act specified at that time) will constitute your consent to those changes. However, we will not, without your consent, use your Personal Information in a manner materially different than what was stated at the time your Personal Information was collected. Policy was created with https://www.WebsitePolicies.com
Acceptance of this policy
You acknowledge that you have read this Policy and agree to all its terms and conditions. By accessing and using the Website and Services you agree to be bound by this Policy. If you do not agree to abide by the terms of this Policy, you are not authorized to access or use the Website and Services.
If you would like to contact us to understand more about this Policy or wish to contact us concerning any matter relating to individual rights and your Personal Information, you may send an email to email@example.com or write a letter to 17 Whipbird Street, Baldivis, 6171, WA
This document was last updated on August 18, 2020
TERMS AND CONDITIONS OF SALE
All Orders given to ComSpace , ABN No 564 0234 7887 are subject to the following Terms and Conditions.
1. Defined Terms
1.1 In these Terms and Conditions:
“Delivery Address” means the delivery address of the Customer stated in an Order; “Contract” means the contract resulting from the acceptance by ComSpace of an Order in accordance with clause 2.3; “Credit Application Form” means ComSpace credit application form by which a Customer can apply for credit account with ComSpace in respect of the sale of Goods; “Customer” means any person who enters into a Contract with ComSpace for the sale and purchase of Goods and services; “Delivery Time” means the time of delivery of the Goods either to the Delivery Address of the Customer or to the carrier of the Customer; “GST” means any amount paid or payable under any GST law as that expression is defined in section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth); “Loss” means any damage, loss, liability, expense or cost whether direct or indirect, consequential or incidental; “Quotation” means a formal statement setting out the estimated costs of a particular job or service; “Order” means an order placed with ComSpace for the sale and delivery of Goods and Services; “Order Confirmation” means a written confirmation of the Order by ComSpace that may be in the form of an invoice provided to the Customer by facsimile transmission or email or delivered to the Customer upon delivery of the Goods; “Price” means the price for the Goods specified in the Order Confirmation, or the price set out in any specific quotations by ComSpace for the supply of Goods at a particular price, which quotation shall be open for acceptance within the period stated in a quotation or if no period is stated, within 30 days after the date of a quotation; “Goods and Services” means the goods and services supplied or to be supplied by ComSpace to the Customer from time to time pursuant to the Contract; “Terms and Conditions” means these terms and conditions as amended from time to time by ComSpace.
1.2 In these Terms and Conditions (including defined terms), unless the context otherwise requires:
(a) The singular includes the plural and vice versa and each gender includes each other gender.
(b) Headings are included for convenience only and do not affect the interpretation of these Terms and Conditions.
2. Formation of Contract of Sale of Goods and Services
2.1 These Terms and Conditions supersede all previous terms and conditions imposed by ComSpace and may only be varied in writing by ComSpace.
2.2 Unless previously withdrawn, a quotation is valid for 14 days, stock availability and/or such other period as stated it. A quotation is not to be constructed as an obligation to sell but merely an invitation and no contractual relationship shall arise until the Customer ‘s order has been accepted by ComSpace.
2.3 Each Order will constitute an offer by the Customer to acquire Goods and Services from ComSpace upon and subject to the Terms and Conditions and to the exclusion of all other terms and conditions and notwithstanding any qualifications of the Terms and Conditions (including any terms and conditions contained in any purchase Order or other document of the Customer) unless expressly agreed by ComSpace in writing.
2.4 Quoted prices are subject to variation by ComSpace without notice.
2.5 The Customer agrees to maintain in confidence all quoted pricing and will abide by restrictions of use and disclosure of ComSpace’s Confidential Information. ComSpace reserves its rights to render the quotation as void if confidentiality information regarding pricing is disclosed.
2.6 A contract will only be made between ComSpace and the Customer for the sale and purchase of Goods and Services if and upon the acceptance of the Order by ComSpace by the provision to the Customer of an Order Confirmation.
2.7 ComSpace shall not be bound by any condition attached the Customer’s order, acceptance of Quotation and/or Purchase order, unless such conditions are expressly accepted by ComSpace in writing. The Customer acknowledges that such conditions are expressly negated.
2.8 An Order may only be made by the Customer to ComSpace, In writing, by facsimile transmission or by electronic data interchange.
2.9 The Contract resulting from the provision of the Order Confirmation cannot be cancelled by the Customer without ComSpace’s written consent and ComSpace may at its discretion impose a reasonable cancellation charge.
3. Payment Terms
3.1 Unless otherwise agreed to in writing by ComSpace, the Customer agrees to pay ComSpace the Price in full of Goods and Services on receipt of invoice issued. All goods and services being Financed through a third party will not be released to the Customer until as such time full payment has been received by ComSpace. All training courses must be paid in full 7 days before commencement of a training course.
3.2 If ComSpace agrees to extend credit to the Customer, the Customer agrees to the terms stated in the Credit Application Form as terms and conditions of the Contract. Notwithstanding any credit terms given to the Customer, ComSpace may decline to sell Goods and Services on credit to the Customer at any time without notice to the Customer.
3.3 Payments are to be made via cash, cheque, bank cheque, EFTPOS and Credit Card. American Express incurs a 1.8% surcharge and Visa/MasterCard incurs a 1.8% surcharge (inc GST). Payments are too made without deduction or set off, whether legal or equitable.
3.4 The Price is GST and freight /delivery charge exclusive unless stated otherwise. The Customer must pay to ComSpace any GST which ComSpace is liable to pay in respect of supplies made by ComSpace under these Terms and Conditions.
3.5 All financial institutions duty, stamp duty, Government charges, or direct costs of any kind associated with the operation of the customer’s account will be charged to the customer. Furthermore, the customer will be charged an administration fee of $100 for each dishonoured cheque.
3.6 Prices, fees and charges are subject to change without notice.
3.7 Unless otherwise stipulated, all quotes/prices are in Australian Dollars (AUD).
Interest will be charged on all overdue accounts at the rate prescribed by the Queensland Law Society (Standard contract default rate) from the due date to the date that the account is paid in full and should the account be referred to a collection agency the Applicant shall pay a 15% collection fee plus all legal costs on an indemnity basis.
5.Title and Risk
5.1 The Customer acknowledges and agrees that no title to the Goods shall pass to the Customer until payment in full of all monies owed to ComSpace has been received.
5.2 Risk of Loss or damage to the Goods will pass to the Customer at the time of dispatch from ComSpace’s nominated warehouse. ComSpace shall not be responsible for any loss or damage of Goods in transit. Insurance for Goods in transit to the Customer will not be arranged by ComSpace. The Customer shall be responsible for the insurance of Goods in transit, which insurance shall take account of these conditions.
5.3 Until the Price has been paid in full:
(a) legal ownership of Goods shall remain with ComSpace.
(b) ComSpace may enter the Customer’s premises (or any premises where the Goods are located) without notice and without liability for trespass or any resulting damage and may retake possession of Goods. All costs and expenses incurred by ComSpace as a result in taking action to retake possession of Goods, together with transportation and storage charges, must be paid by the Customer to ComSpace on demand.
(c) ComSpace may keep or resell any repossessed Goods.
(d) if the Customer resells Goods without first having paid ComSpace for them, the Customer shall hold that part of the proceeds of the sale which represents the invoiced price of Goods in a separate identifiable account as the beneficial property of ComSpace and shall pay the amount to ComSpace on request.
(e) notwithstanding anything contained in sub clauses 5.3 (a)-(d), ComSpace shall be entitled to maintain its legal rights against the Customer for the Price of the Goods. The Customer acknowledges and agrees that ComSpace may apply to register a security interest in the Goods at any time before or after delivery of the Goods. The Customer waives its right under section 157 of the Personal Property Securities Act 2010 PPSA to receive notice of any verification of the registration. If the Customer defaults in the performance of any obligation owed to the ComSpace under these Terms and Conditions or any other agreement with ComSpace to supply Goods to the Customer, ComSpace may enforce its security interest in any Goods by exercising all or any of its rights under these terms or the PPSA. To the maximum extent permitted by law, the Customer and ComSpace agree that the following provisions of the PPSA do not apply to the enforcement by ComSpace of its security interest in the Goods: sections 95,125, 130,135,142 and 143.
6 Security and Charge
Despite anything to the contrary contained herein of any other rights which the ComSpace may have howsoever:
(a) where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to ComSpace or ComSpace’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that ComSpace (or ComSpace’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been meet.
(b) Should ComSpace elect to proceed in any manner in accordance with this clause and/or its sub-clause, the Customer and/or Guarantor shall indemnify ComSpace from and against all ComSpace’s costs and disbursements including legal costs on an indemnity basis. The Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint ComSpace or the ComSpace’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause.
7 Credit Limit
The grant of any credit limit or facility is an indication only of ComSpace’s intention at that time. ComSpace may at any time or at its discretion vary and/or withdraw any credit limit or facility without liability to ComSpace or any other party.
8.1 Any time-frames quoted by ComSpace for the delivery of Products are estimates only.
8.2 ComSpace shall not be liable for delay or any failure or inability to deliver. ComSpace shall not be liable for any loss or damage whatever due to failure by ComSpace to deliver the goods (or any of them) promptly or at all.
8.3 The failure of ComSpace to deliver shall not entitle the Customer to treat this contract as repudiated.
8.4 ComSpace reserves the right to withdraw an Order Confirmation at any time before the Delivery Time and will not be liable for any loss whatsoever arising from its failure to deliver any or all of the Goods.
8.5 Any term of the Contract relating to the quantity of Goods is not the essence of the Contract. ComSpace reserves the right to make partial deliveries against an Order and to invoice each partial delivery separately and the Customer cannot reject Goods on the basis of partial delivery.
8.6 Where Goods remain in the possession of ComSpace after the Delivery Time (including where the Customer fails for whatever reason to take delivery of the Goods), ComSpace is entitled to charge the Customer for all Loss occasioned by the Customer not accepting delivery together with any costs and Loss in respect of the carriage, care and custody of the Goods.
8.7 Unless otherwise agreed by ComSpace, all Goods will be delivered to the Delivery Address.
8.8 The Customer must ensure that it or its employees or agents are in attendance at the Delivery Address at the agreed time or agreed period for delivery to accept delivery of the Goods and to acknowledge receipt upon the consignment note or invoice accompanying the Goods.
8.9 ComSpace may arrange for the storage and carriage of Goods by carriers, contractors or sub-contractors. Notwithstanding any specific instructions given by the Customer as to the mode of carriage of Goods, in the exercise of its absolute discretion ComSpace may have any Goods carried or forwarded by any method which it deems fit.
8.10 Unless otherwise agreed in writing by ComSpace from time to time, the cost of freight of Goods from the ComSpace warehouse shall be paid by the Customer.
8.11 Unless otherwise specified in a quotation, Goods shall be packed in ComSpace standard packing. The cost of any special packing and packing materials required by the Customer shall be at the Customer’s expense.
9. Inspection, Acceptance of Goods and Customer’s obligations
9.1 The Customer must inspect the Goods within 5 business days of the Delivery Time and if no inspection is so made, is deemed to have accepted the Goods.
9.2 The Customer has no claim for shortages, defects or any Loss in respect of Goods apparent on inspection unless:
(a) A complaint is made to ComSpace within 5 business days of the Delivery Time specifying the shortage or defect; and
(b) ComSpace is, after receipt of the complaint, permitted to inspect the Goods, have Goods inspected by manufacture, and/or investigate the complaint.
9.3 If a complaint is not made to ComSpace in accordance with clause 9.2, the Goods delivered will be deemed to be in accordance with the Contract, and ComSpace will not be held liable for any future Losses regarding the use or application of the Goods, and the Customer is bound to pay for them accordingly.
9.4 ComSpace shall not be under any obligation to accept Goods returned by the Customer. ComSpace will only accept the return of Goods from the Customer where:
(a) The Customer has complied with clause 9.2 and ComSpace is satisfied as to the claim by the Customer; and
(b) The Goods are returned to ComSpace in the same un-opened condition as when first delivered to the Customer.
10. Cancellations and Returns
10.1 The Customer shall at no time cancel the whole or part of any order placed without ComSpace prior written approval. The Customer shall not return any Products without first providing to ComSpace an original proof of purchase.
10.2 Where the Customer has ordered incorrect Goods, an incorrect item number for Goods is used, an incorrect unit of issue or pack size is Ordered, an Order exceeds the Customer’s requirements, an incorrect account number is used, or an Order is duplicated, the Customer may after receiving written authority from ComSpace, return the Goods to ComSpace subject to the Goods being returned in the same condition as when first delivered to the Customer and subject to the Customer bearing the freight costs of the delivery and return of the Goods.
10.3 Notwithstanding any other provisions of these Terms and Conditions, the Customer shall not return any products which have been custom made, custom cut, custom processed or custom acquired.
10.4 The Customer shall in all cases pay to ComSpace a restocking fee of 20% of the gross value of all returns.
10.5 Where Goods are returned to ComSpace in accordance with the above provisions ComSpace may issue a credit note in respect of any amounts paid by the Customer in respect of those Goods, less restocking fee and relevant freight costs.
10.6 The Customer agrees that any Training course cancellations made by them, must be in writing and must be made 7 days prior to course commencement date. The Customer also agrees that if it cancels any training within 7 business days of the course commencement date, then ComSpace will only be oblige to provide the Customer with a 50% credit of the total training course price as agreed to. For all training cancelled or postponed within 5 business days prior to course commencement date, full payment will be forfeited.
11.1 The Customer shall rely on its own knowledge and expertise in selecting Products for any purpose and any advice given by or on behalf of ComSpace shall be accepted at the Customer’s risk.
11.2 ComSpace shall not be liable nor responsible for any failure to comply with any requirements of the Customer or any other person (whether relating to manufacture, design, fabrication, installation and/or any other particular intended use of Products) which are not precisely and accurately communicated in writing to ComSpace prior to the Customer entering into a sale contract.
12 Limitation of Liability
12.1 Legislation such as the Competition and Consumer Act 2010 (Cth) may imply into these Terms and Conditions warranties or conditions or impose obligations which cannot be excluded, restricted or modified and these Terms and Conditions are read subject to such statutory provisions.
12.2 All other conditions, warranties, representations, liabilities, and obligations, whether implied or imposed by statute, including any conditions or warranties as to merchant-ability, fitness for purpose or correspondence with description are excluded to the extent permitted by law.
12.3 In the event that ComSpace breaches its obligations referred to in clause 12.1, to the extent allowed by law, its liability is limited to any one or more of the following, at its election:
(a) The replacement of the Goods or the supply of equivalent goods.
(b) The repair of the Goods.
(c) The payment of the cost of replacing the goods or acquiring equivalent goods; or
(d) The payment of the cost of having the goods repaired.
12.4 The total liability of ComSpace under these Terms and Conditions is, to the extent permitted by law, expressed in this clause 12 and ComSpace will under no circumstances be liable to the Customer for any Loss incurred by the Customer or any other party resulting directly or indirectly out of the supply by ComSpace to the Customer or out of any breach of ComSpace under these Terms and Conditions or out of the negligence of ComSpace.
12.5 Nothing in these Terms and Conditions shall exclude or modify any conditional warranty implied by law where to do so would render these
Terms and Conditions void.
12.6 Our goods come with guarantees 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.
12.7 The Customer agrees to limit any claim it makes to the cost of or of acquiring equivalent products.
13 Force Majeure
13.1 ComSpace shall not be deemed to be in default or breach of any contract as a result of Force Majeure. Force Majeure shall include any cause beyond the reasonable control of ComSpace.
Upon the appointment of an Administrator, Receiver, Liquidator or Trustee in Bankruptcy to the Customer, ComSpace may by notice to the Customer, at its option and without prejudice to another right it may have, suspend or terminate an Order, cease further deliveries and may retain any monies paid by the Customer in relation to the Order and apply such monies against any loss or damage incurred by it in relation to the default by the Customer.
Any part of these Terms being whole or part of a clause shall be capable of severance without affecting any part of these Terms.
The Customer agrees that it shall be deemed to have notice of any change to the Terms and Conditions and be bound by any subsequent versions of these Terms and Conditions as they appear on the website www.comspace.rocks whether or not the Customer has actual notice thereof. A copy of any subsequent of these Terms and Conditions may also be obtained, by request, by telephone or email.
17.1 These Terms and Conditions take effect, are governed by and will be construed in accordance with the laws of the State of Queensland, Australia.
17.2 These Terms and Conditions are subject to change without notice.
17.3 The parties agree that any action arising out of, or relating to these terms may only be brought by a court of competent jurisdiction in the State of Queensland, Australia.
17.5 If we do not act in relation to a breach by you of these Terms and Conditions, this does not waive ComSpace’s right to act with respect to subsequent or similar breaches.
17.6 You may not assign or transfer any rights or benefits you may receive under these Terms and Conditions to any other person or entity without the prior written consent of ComSpace.
17.7 In reselling, maintaining or installing Goods, the Customer is not ComSpace’s agent or the agent of the manufacturer of Goods.
ABN 564 0234 7887
LICENSE AND SERVICES AGREEMENT
READ CAREFULLY: ComSpace LICENSES THE SOFTWARE AND OTHER LICENSED MATERIALS ONLY ON THE CONDITION THAT LICENSEE ACCEPTS ALL OF THE TERMS CONTAINED OR REFERENCED IN THIS AGREEMENT.
By selecting the “I accept” button or other button or mechanism designed to acknowledge agreement to the terms of an electronic copy of this Agreement, or by installing, downloading, accessing, or otherwise copying or using all or any portion of the ComSpace Materials, (i) you accept this Agreement on behalf of the entity for which you are authorized to act (e.g., an employer) and acknowledge that such entity is legally bound by this Agreement (and you agree to act in a manner consistent with this Agreement) or, if there is no such entity for which you are authorized to act, you accept this Agreement on behalf of yourself as an individual and acknowledge that you are legally bound by this Agreement, and (ii) you represent and warrant that you have the right, power and authority to act on behalf of and bind such entity (if any) or yourself. You may not accept this Agreement on behalf of another entity unless you are an employee or other agent of such other entity with the right, power and authority to act on behalf of such other entity.
If Licensee is unwilling to accept this Agreement, or you do not have the right, power and authority to act on behalf of and bind such entity or yourself as an individual (if there is no such entity), (a) DO NOT SELECT THE “I ACCEPT” BUTTON OR OTHERWISE CLICK ON ANY BUTTON OR OTHER MECHANISM DESIGNED TO ACKNOWLEDGE AGREEMENT, AND DO NOT INSTALL, DOWNLOAD, ACCESS, OR OTHERWISE COPY OR USE ALL OR ANY PORTION OF THE ComSpace MATERIALS; AND (b) WITHIN THIRTY (30) DAYS FROM THE DATE OF ACQUIRING THE ComSpace MATERIALS, LICENSEE MAY RETURN THE ComSpace MATERIALS (INCLUDING ANY COPIES) TO THE ENTITY FROM WHICH THEY WERE ACQUIRED FOR A REFUND OF THE APPLICABLE LICENSE FEES PAID BY THE LICENSEE.
The words “ComSpace", “Agreement” and “Licensee” and other capitalized terms used in this Agreement are defined terms. The definitions can be found in Exhibit A (if the terms are not defined in the main body of the Agreement).
1.1 License Grant. Subject to and conditioned on Licensee’s continuous compliance with this Agreement and payment of the applicable fees, ComSpace grants Licensee a nonexclusive, nonsublicensable, nontransferable, limited license to Install and Access the Licensed Materials, in each case solely (a) in the Territory, (b) within the scope of the License Type and Permitted Number specified in the applicable License Identification, and (c) in accordance with the other terms of this Agreement. Various License Types are described in Exhibit B. In any case where the License Identification does not specify a License Type or Permitted Number, or there is no License Identification, the License Type will, by default, be the Evaluation License and the Permitted Number will, by default, be one (1).
1.2 Upgrades and Previous Versions.
1.2.1 Effect of Upgrades. If ComSpace or a Reseller provides Licensee with an Upgrade to other Licensed Materials previously licensed to Licensee, the Licensed Materials previously licensed to Licensee and any other ComSpace Materials relating thereto will thereafter be deemed to be a “Previous Version.” Except as set forth in Section 1.2.2 (Exception for Relationship Program Licensees), the license grant and other rights with respect to any Previous Version will terminate one hundred twenty (120) days after Installation of the Upgrade. Within such one hundred twenty (120) day period, except as set forth in Section 1.2.2 (Exception for Relationship Program Licensees), (a) Licensee must cease all use of any Previous Version and Uninstall all copies of the Previous Version, and (b) upon expiration of such period, such Previous Version will no longer constitute Licensed Materials but rather will be deemed to be Excluded Materials and Licensee will no longer have a license for any such Previous Version. At ComSpace’s request, Licensee agrees to destroy or return to ComSpace or the Reseller from which they were acquired all copies of the Previous Version. ComSpace reserves the right to require Licensee to show satisfactory proof that all copies of any Previous Version have been Uninstalled and, if so requested by ComSpace, destroyed or returned to ComSpace or the Reseller from which they were acquired.
1.2.3 Exception for Relationship Program Licensees. The termination of rights as to Previous Versions described in Section 1.2.1 (Effect of Upgrades) may not apply to Licensee if and to the extent (a) Licensee participates in a Relationship Program and the Relationship Program Terms authorize Licensee to retain such Previous Versions or (b) otherwise authorized in writing by ComSpace.
1.3 Additional Terms. The Licensed Materials (or portions thereof) may be subject to terms (e.g., terms accompanying such Licensed Materials or made available in connection with ordering, installing, downloading, accessing, using or copying such Licensed Materials) that are in addition to or different from the terms set forth in this Agreement, and Licensee agrees to comply with such terms.
1.4 Other Materials. If ComSpace provides or makes available to Licensee any additional materials associated with the Licensed Materials, including any corrections, patches, service packs, updates or upgrades to, or new versions of, the Licensed Materials (including Upgrades) or any Supplemental Materials or User Documentation for the Licensed Materials, (a) such additional materials may include or be subject to other terms in addition to or different from the terms set forth in this Agreement (including, without limitation, additional or different fees, license terms, or restrictions on use), and Licensee agrees to comply with such terms, or (b) if there are no other terms for such additional materials, they will (except as otherwise provided by Section 1.2 (Upgrades and Previous Versions)) be subject to the same terms (including, without limitation, the licenses, applicable License Type and Permitted Number, and other terms of this Agreement) as the Licensed Materials to which such additional materials apply. In no event will the foregoing result in any rights with respect to Excluded Materials.
1.5 Authorized Users. Licensee may permit the Licensed Materials to be Installed and/or Accessed only by Licensee’s Personnel (except as otherwise designated in the applicable License Type), and any such Installation or Access will be subject to any other requirements imposed by this Agreement and the applicable License Type and Permitted Number. Licensee will be responsible for compliance with this Agreement by Licensee’s Personnel and any other persons who may have Access to the ComSpace Materials through Licensee (whether or not such Access is authorized by ComSpace or within the scope of the applicable License Type and Permitted Number).
1.6 Third-Party Licensed Materials. The ComSpace Materials may contain or be accompanied by third-party software, data or other materials that are subject to and provided in accordance with terms that are in addition to or different from the terms set forth in this Agreement. Such terms may be included or referenced in or with such third-party software, data or other materials (e.g., in the “About box”) or a web page specified by ComSpace (the URL for which may be obtained on ComSpace’s website or on request to ComSpace). Licensee agrees to comply with such terms. In addition, Licensee will take sole responsibility for obtaining and complying with any licenses that may be necessary to use third-party software, data or other materials that Licensee uses or obtains for use in conjunction with the Licensed Materials. Licensee acknowledges and agrees that ComSpace has no responsibility for, and makes no representations or warranties regarding, such third-party software, data or other materials or Licensee’s use of such third-party software, data or other materials.
1.7 Relationship Programs. ComSpace may offer to Licensee, and (if so) Licensee may participate in one (1) or more Relationship Programs applicable to the Licensed Materials licensed to Licensee under this Agreement (and such Relationship Programs may include rights in addition to or different from those set forth in this Agreement). Any Relationship Programs are subject to ComSpace’s terms therefor, which terms are set forth in the applicable Relationship Program Terms. Licensee agrees that if it requests, accepts, or makes use of any Relationship Program, Licensee will be bound by such terms, as they may be modified from time to time in accordance with the applicable Relationship Program Terms (and such terms, as so modified from time to time, are a part of and incorporated by reference into this Agreement), and Licensee agrees to comply with such terms. Licensee acknowledges that ComSpace may require a further acceptance of such terms as a condition to participation in a Relationship Program.
1.8 Services. ComSpace may provide, and Licensee may elect to receive or benefit from, certain Services from time to time. Any Services are subject to ComSpace’s terms therefor, which terms are set forth in the applicable Services Terms. Licensee agrees that if it requests, accepts, or makes use of any Services, Licensee will be bound by such terms, as they may be modified from time to time in accordance with the applicable Services Terms (and such terms, as so modified from time to time, are a part of and incorporated by reference into this Agreement), and Licensee agrees to comply with such terms. Licensee acknowledges that ComSpace may require a further acceptance of such terms as a condition to providing Services.
1.9 Archival Copy. Licensee’s license under Section 1.1 (License Grant) includes the right to make a single archival copy of the Licensed Materials in the Territory, provided that (a) the single-copy limitation will not apply to copies made as an incidental part of a routine backup of Licensee’s entire computer system on which the Licensed Materials are Installed in accordance with this Agreement, where such backup includes the making of copies of substantially all other software on such computer system and (b) any archival copy may be Accessed or Installed (other than on a backup storage medium from which the Licensed Materials cannot be Accessed) only when and for so long as the primary copy of the Licensed Materials is inaccessible and inoperable. Copies of the Licensed Materials that are Installed and are in excess of the Permitted Number at any time while the primary copy of the Licensed Materials is also Accessible are not "archival copies" as permitted under this Section 1.9 (Archival Copy).
1.10 Nature of Licenses. Licensee acknowledges and agrees that when Licensee acquires a license of Licensed Materials, (including through a Relationship Program or Services), Licensee’s acquisition is neither contingent on the delivery of any future features or functionality nor subject to any public or other comments (oral, written or otherwise) made by ComSpace regarding future features or functionality.
1.11 APIs. Licensee acknowledges and agrees that any API Information and Development Materials (unless otherwise specified by ComSpace in additional or different terms associated with such API Information or Development Materials) (a) are confidential and proprietary to ComSpace, (b) may not be distributed, disclosed or otherwise provided to third parties, (c) may be used only internally and only in conjunction with and for Licensee’s own authorized internal use of the Licensed Materials to which the API Information or Development Materials relate, such as the development and support of applications, modules and components to operate on or with such Licensed Materials, and (d) may only be Installed on the same Computer(s) where such Licensed Materials are permitted to be Installed. Notwithstanding the foregoing or Section 3 (All Rights Reserved), if Licensee develops any such applications, modules and components in accordance with this Agreement, nothing in this Agreement will prohibit Licensee from using such applications, modules and components with (and porting such applications, modules and components to) other software and hardware (including the software and hardware of third parties), if such applications, modules and components (i) do not incorporate or embody any Development Materials or other ComSpace Materials (other than the API Information that was used in the development thereof in accordance with this Agreement) and (ii) do not disclose the API Information. For purposes of this Section 1.11 (APIs), (A) “API Information” means the standard applications programming interface (“API”) information generally provided by ComSpace to licensees of the Licensed Materials that specifies the requirements for interfacing to (e.g., invoking or directing the functions of) the software included in such Licensed Materials; and (B) “Development Materials” means SDKs and other toolkits, libraries, scripts, reference or sample code, and similar developer materials included in the Licensed Materials. API Information does not include any implementation of such interface information, any Development Materials, or any other software, module or component.
2. License Limitations; Prohibitions
2.1 Limitations and Exclusions.
2.1.1 No License Granted; Unauthorized Activities. The parties acknowledge and agree that, notwithstanding anything to the contrary in this Agreement, no license is granted (whether expressly, by implication or otherwise) under this Agreement (and this Agreement expressly excludes any right) (a) to Excluded Materials, (b) to any ComSpace Materials that Licensee did not acquire lawfully or that Licensee acquired in violation of or in a manner inconsistent with this Agreement, (c) for Installation of or Access to the Licensed Materials beyond the applicable license term (whether a fixed term or Relationship Program period or term) or outside the scope of the applicable License Type or Permitted Number, (d) for Installation of the Licensed Materials on any Computer other than a Computer owned or leased, and controlled, by Licensee, unless otherwise authorized in writing by ComSpace, (e) to distribute, rent, loan, lease, sell, sublicense, transfer or otherwise provide all or any portion of the ComSpace Materials to any person or entity except as expressly set forth in this Agreement or as expressly authorized in writing by ComSpace, (f) to provide or make available any features or functionality of the ComSpace Materials to any person or entity (other than to and for Licensee itself for the purpose specified in the applicable License Type), whether or not over a network and whether or not on a hosted basis, (g) except as otherwise expressly provided with respect to a specific License Type, to Install or Access or allow the Installation of or Access to the ComSpace Materials over the Internet or other non-local network, including, without limitation, use in connection with a wide area network (WAN), virtual private network (VPN), virtualization, Web hosting, time-sharing, service bureau, software as a service, cloud or other service or technology, (h) to remove, alter or obscure any proprietary notices, labels or marks in the ComSpace Materials, (i) to decompile, disassemble or otherwise reverse engineer the ComSpace Materials, or (j) to translate, adapt, arrange, or create derivative works based on, or otherwise modify the ComSpace Materials for any purpose.
2.1.2 Licensed Materials as a Single Product. The Licensed Materials are licensed to Licensee as a single product and the applicable components may not be separated for Installation or Access (and all such components must be Installed and Accessed on the same Computer except as authorized in writing by ComSpace).
2.1.3 Territory. Except as otherwise authorized in writing by ComSpace, the licenses granted in this Agreement are granted only for the Territory. Nothing in this Agreement permits Licensee (including, without limitation, Licensee’s Personnel, if any) to Install or Access the Licensed Materials outside of the Territory.
2.1.4 Effect of Unauthorized Use. Licensee will not engage in, and will not permit or assist any third party to engage in any of the uses or activities prohibited (or any uses or activities inconsistent with the limitations described) in this Section 2.1 (Limitations and Exclusions) (collectively, “Unauthorized Uses”). Any such Unauthorized Use, and any Installation of or Access to the Licensed Materials provided under this Agreement, outside of the scope of the applicable license grants (including, without limitation, outside the applicable License Type and/or Permitted Number) or otherwise not in accordance with this Agreement, constitute or result in infringement of ComSpace’s intellectual property rights as well as a breach of this Agreement. Licensee will notify ComSpace promptly of any such Unauthorized Uses or other unauthorized Installation or Access.
2.2.1 Licensee may not (i) utilize any equipment, device, software, or other means to (or designed to) circumvent or remove any form of technical protection used by ComSpace in connection with the ComSpace Materials, or (ii) Install or Access the ComSpace Materials with any product code, authorization code, serial number, or other copy-protection device not supplied by ComSpace directly or through a Reseller. Without limitation of the generality of the foregoing, Licensee may not utilize any equipment, device, software, or other means to (or designed to) circumvent or remove the ComSpace License Manager or any tool or technical protection measure provided or made available by ComSpace for managing, monitoring or controlling Installation of or Access to ComSpace Materials.
2.2.2 Licensee may not utilize any equipment, device, software, or other means to (or designed to) circumvent or remove any usage restrictions, or to enable functionality disabled by ComSpace, in connection with the Excluded Materials. Licensee may not bypass or delete any functionality or technical limitations of the ComSpace Materials that (or that are designed to) prevent or inhibit the unauthorized copying of, Installation or Access to the Excluded Materials.
3. All Rights Reserved
ComSpace and its licensors retain title to and ownership of, and all other rights with respect to, the ComSpace Materials and all copies thereof, including, without limitation, any related copyrights, trademarks, trade secrets, patents, and other intellectual property rights. Licensee has only the limited licenses granted with respect to the Licensed Materials expressly set forth in this Agreement, and Licensee has no other rights, implied or otherwise. Licensee acknowledges and agrees that the ComSpace Materials are licensed, not sold, and that rights to Install and Access the Licensed Materials are acquired only under the license from ComSpace. The structure and organization of Software included in the ComSpace Materials, any source code or similar materials relating to such Software, any API Information and Development Materials (both as described in Section 1.11 (APIs)), and any other Licensed Materials identified as confidential or proprietary are valuable trade secrets of, and confidential and proprietary information of, ComSpace and its suppliers, and (a) may not be distributed, disclosed or otherwise provided to third parties, and (b) may be used only internally and only in conjunction with and for Licensee’s own authorized internal use of the Licensed Materials.
4. Privacy; Use of Information; Connectivity
4.1 Privacy and Use of Information. Licensee acknowledges and agrees that Licensee (and third parties acting on Licensee’s behalf) may provide, and ComSpace and its Resellers (and third parties acting on behalf of ComSpace and its Resellers) may obtain, certain information and data with respect to Licensee (including, without limitation, personal information) and Licensee’s business in connection with this Agreement, including, without limitation, information and data provided to or obtained by ComSpace and its Resellers (or third parties acting on behalf of ComSpace and its Resellers) through the Customer Information Form and otherwise, in connection with ordering, registration, activation, updating, validating entitlement to, auditing, monitoring Installation of and Access to ComSpace Materials, Relationship Programs and Services and managing the relationship with Licensee. Licensee hereby consents to ComSpace maintaining, using, storing and disclosing such information and data (including, without limitation, personal information, if any) in conformity with ComSpace’s policies on privacy and data protection, as such policies may be updated from time to time, including without limitation ComSpace’s Privacy Statement, as currently located at http://www.comspace.rocks/legal. Without limitation of the generality of the foregoing, Licensee acknowledges and agrees that: (a) ComSpace may from time to time prompt Licensee (and third parties acting on Licensee’s behalf) to provide express agreement to the terms of ComSpace’s Privacy Statement and/or express agreement to specific uses of information and data (including, without limitation, personal information); (b) ComSpace may provide information and data, including, without limitation, information and data about Licensee’s use of ComSpace Materials, Relationship Programs, and Licensee’s support requests, to ComSpace subsidiaries and affiliates, Resellers and other third parties in connection with the provision, maintenance, administration or usage of Licensed Materials, Relationship Programs or Services or in connection with enforcement of any agreements relating to Licensed Materials, Relationship Programs or Services; and (c) ComSpace may make cross-border transfers of such information and data, including to jurisdictions with privacy or data protection laws that are less protective of Licensee than the jurisdiction in which Licensee is domiciled. Licensee acknowledges and agrees that such policies may be changed from time to time by ComSpace and that, effective upon posting on ComSpace’s website or other written notice from ComSpace, Licensee will be subject to such changes.
4.2 Connectivity. Certain Licensed Materials may facilitate or require Licensee’s access to and use of content and services that are hosted on websites maintained by ComSpace or by third parties. In some cases, such content and services may appear to be a feature or function within, or extension of, the Licensed Materials on Licensee’s Computer even though hosted on such websites. Accessing such content or services and use of Licensed Materials may cause Licensee’s Computer, without additional notice, to connect automatically to the Internet (transitorily, intermittently or on a regular basis) and to communicate with an ComSpace or third-party website—for example, for purposes of providing Licensee with additional information, features and functionality or to validate that the Licensed Materials and/or content or services are being used as permitted under this Agreement or other applicable terms. Such connectivity to ComSpace websites is governed by ComSpace’s policies on privacy and data protection described in this Section 4 (Privacy; Use of Information; Connectivity). Such connectivity to websites of third parties is governed by the terms (including the disclaimers and notices) found on such sites or otherwise associated with the third-party content or services. ComSpace does not control, endorse, or accept responsibility for any such third-party content or services, and any dealings between Licensee and any third party in connection with such content or services, including, without limitation, such third party’s privacy policies, use of personal information, delivery of and payment for goods and services, and any other terms associated with such dealings, are solely between Licensee and such third party. ComSpace may at any time, for any reason, modify or discontinue the availability of any third-party content or services. Access to and use of certain content and services (whether of ComSpace or third parties) may require assent to separate terms and/or payment of additional fees.
5. Limited Warranty and Disclaimers
5.1 Limited Warranty. ComSpace warrants that, as of the date on which the Licensed Materials are delivered to Licensee and for ninety (90) days thereafter or if the license term is shorter, such shorter period (“Warranty Period”), the Licensed Materials will provide the general features and functions described in the User Documentation portion of the Licensed Materials. ComSpace's entire liability and Licensee’s exclusive remedy during the Warranty Period (“Limited Warranty”) will be, with the exception of any statutory warranty or remedy that cannot be excluded or limited under law, at ComSpace's option, (i) to attempt to correct or work around errors, if any, or (ii) to refund the license fees, if any, paid by Licensee and terminate this Agreement or the license specific to such Licensed Materials. Such refund is subject to the return, during the Warranty Period, of the ComSpace Materials, with a copy of Licensee’s License Identification, to Licensee’s local ComSpace office or the Reseller from which Licensee acquired the ComSpace Materials. THE LIMITED WARRANTY SET FORTH IN THIS SECTION GIVES LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY HAVE ADDITIONAL LEGAL RIGHTS UNDER LAW WHICH VARY FROM JURISDICTION TO JURISDICTION. ComSpace DOES NOT SEEK TO LIMIT LICENSEE’S WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW.
5.2 Disclaimer. EXCEPT FOR THE EXPRESS LIMITED WARRANTY PROVIDED IN SECTION 5.1 (LIMITED WARRANTY), AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ComSpace AND ITS SUPPLIERS MAKE, AND LICENSEE RECEIVES, NO WARRANTIES, REPRESENTATIONS, OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, OR WARRANTIES OTHERWISE IMPLIED BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE) WITH RESPECT TO ANY ComSpace MATERIALS, RELATIONSHIP PROGRAMS, OR SERVICES (PURSUANT TO A RELATIONSHIP PROGRAM OR OTHERWISE). ANY STATEMENTS OR REPRESENTATIONS ABOUT THE ComSpace MATERIALS, RELATIONSHIP PROGRAMS OR SERVICES AND THEIR FEATURES OR FUNCTIONALITY IN THE LICENSED MATERIALS OR ANY COMMUNICATION WITH LICENSEE ARE FOR INFORMATION PURPOSES ONLY, AND DO NOT CONSTITUTE A WARRANTY, REPRESENTATION, OR CONDITION. WITHOUT LIMITING THE FOREGOING, ComSpace DOES NOT WARRANT: (a) THAT THE OPERATION OR OUTPUT OF THE LICENSED MATERIALS OR SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, ACCURATE, RELIABLE, OR COMPLETE, WHETHER OR NOT UNDER A RELATIONSHIP PROGRAM OR SUPPORT BY ComSpace OR ANY THIRD PARTY; (b) THAT ERRORS WILL BE CORRECTED BY ComSpace OR ANY THIRD PARTY; OR (c) THAT ComSpace OR ANY THIRD PARTY WILL RESOLVE ANY PARTICULAR SUPPORT REQUEST OR THAT SUCH RESOLUTION WILL MEET LICENSEE’S REQUIREMENTS OR EXPECTATIONS. NOTHING IN THE FOREGOING RESTRICTS THE EFFECT OF WARRANTIES OR CONDITIONS WHICH MAY BE IMPLIED BY LAW WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED NOTWITHSTANDING A CONTRACTUAL RESTRICTION TO THE CONTRARY.
6.1 Functionality Limitations. The Licensed Materials and Services (except for Licensed Materials designed for non-commercial use, such as ComSpace Materials designed to be used for household or other consumer purposes or licensed only for purposes of educational or individual learning) are commercial professional tools intended to be used by trained professionals only. Particularly in the case of commercial professional use, the Licensed Materials and Services are not a substitute for Licensee’s professional judgment or independent testing. The Licensed Materials and Services are intended only to assist Licensee with its design, analysis, simulation, estimation, testing and/or other activities and are not a substitute for Licensee’s own independent design, analysis, simulation, estimation, testing, and/or other activities, including those with respect to product stress, safety and utility. Due to the large variety of potential applications for the Licensed Materials and Services, the Licensed Materials and Services have not been tested in all situations under which they may be used. ComSpace will not be liable in any manner whatsoever for the results obtained through use of the Licensed Materials or Services. Persons using the Licensed Materials or Services are responsible for the supervision, management, and control of the Licensed Materials and Services and the results of using the Licensed Materials and Services. This responsibility includes, without limitation, the determination of appropriate uses for the Licensed Materials and Services and the selection of the Licensed Materials, Services and other computer programs and materials to help achieve intended results. Persons using the Licensed Materials or Services are also responsible for establishing the adequacy of independent procedures for testing the reliability, accuracy, completeness, and other characteristics of any output of the Licensed Materials or Services, including, without limitation, all items designed with the assistance of the Licensed Materials or Services. Licensee further acknowledges and agrees that the Licensed Materials form part of Licensee’s total unique hardware and software environment to deliver specific functionality, and that the Licensed Materials and Services provided by ComSpace may not achieve the results Licensee desires within Licensee’s design, analysis, simulation, estimation, and/or testing constraints.
6.2 Activation Codes and Security.
6.2.1 Activation Code Required for Installation/Access and Continued Use. Installation of and Access to the Licensed Materials require, and the continued use thereof may from time to time require, activation codes issued by ComSpace. Registration may be required before an activation code is issued by ComSpace. Licensee will provide ComSpace and its Reseller with any information required for such registration and agrees that any information provided to ComSpace or its Reseller will be accurate and current. Licensee will also maintain and update Licensee’s registration information, on an ongoing basis, through customer data registration processes, including without limitation the Customer Information Form, which may be provided by ComSpace. Licensee acknowledges and agrees that ComSpace may use such information in accordance with its Privacy Statement (as described or referenced in Section 4 (Privacy; Use of Information; Connectivity)).
6.2.2 Disabling Access. LICENSEE ACKNOWLEDGES AND AGREES THAT INSTALLATION OF AND ACCESS TO LICENSED MATERIALS MAY BE DISABLED BY THE ACTIVATION, SECURITY, AND TECHNICAL PROTECTION MECHANISMS IF LICENSEE TRIES TO TRANSFER ALL OR A PART OF THE LICENSED MATERIALS TO ANOTHER COMPUTER, IF LICENSEE TAMPERS WITH THE TECHNICAL PROTECTION MECHANISMS OR DATE-SETTING MECHANISMS ON A COMPUTER OR IN THE LICENSED MATERIALS, IF LICENSEE USES THE LICENSED MATERIALS PAST AN APPLICABLE RELATIONSHIP PROGRAM PERIOD OR FIXED TERM, OR IF LICENSEE UNDERTAKES CERTAIN OTHER ACTIONS THAT AFFECT THE SECURITY MODE OR UNDER OTHER CIRCUMSTANCES AND THAT, IN ANY SUCH EVENT, LICENSEE’S ACCESS TO LICENSEE’S WORK PRODUCT AND OTHER DATA MAY BE AFFECTED. MORE INFORMATION IS CONTAINED IN THE APPLICABLE LICENSED MATERIALS OR AVAILABLE FROM ComSpace ON REQUEST.
6.2.3 Effect of Activation Codes. Licensee acknowledges and agrees that receipt of an activation code (whether or not provided to Licensee in error) will not constitute evidence of or affect the scope of Licensee’s license rights. Those rights will be only as set forth in this Agreement and the applicable License Identification.
6.3 Affected Data. Work product and other data created with Licensed Materials made available under certain License Types, including licenses that limit the permitted purpose to educational purposes or personal learning purposes, may contain certain notices and limitations that make the work product and other data usable only in certain circumstances (e.g., only in the education field). In addition, if Licensee combines or links work product or other data created with such Licensed Materials with work product or other data otherwise created, then such other work product or data may also be affected by these notices and limitations. ComSpace will have no responsibility or liability whatsoever if Licensee combines or links work product or other data created with such Licensed Materials with work product or other data otherwise created. In addition, Licensee will not remove, alter or obscure any such notices or limitations.
7. Limitations of Liability
7.1 Limitation on Type and Amount of Liability. IN NO EVENT WILL ComSpace OR ITS SUPPLIERS HAVE ANY LIABILITY (DIRECTLY OR INDIRECTLY) FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES; FOR LOSS OF PROFITS, USE, REVENUE, OR DATA; OR FOR BUSINESS INTERRUPTION (REGARDLESS OF THE LEGAL THEORY FOR SEEKING SUCH DAMAGES OR OTHER LIABILITY). IN ADDITION, THE LIABILITY OF ComSpace AND ITS SUPPLIERS ARISING OUT OF OR RELATING TO ANY ComSpace MATERIALS, RELATIONSHIP PROGRAMS OR SERVICES WILL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY LICENSEE FOR SUCH ComSpace MATERIALS, RELATIONSHIP PROGRAMS, OR SERVICES, RESPECTIVELY.
7.2 Application of and Basis for Limitations. THE LIMITATIONS OF LIABILITY IN THIS SECTION 7 (LIMITATIONS OF LIABILITY) WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW TO ANY DAMAGES OR OTHER LIABILITY, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, EVEN IF ComSpace HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE. ALSO, LICENSEE AGREES THAT THE LICENSE, RELATIONSHIP PROGRAMS AND SERVICES FEES AND OTHER FEES CHARGED BY ComSpace AND PAID BY LICENSEE ARE BASED ON AND REFLECTIVE OF THE ALLOCATION OF RISK CONTEMPLATED BY THIS SECTION 7 (LIMITATIONS OF LIABILITY) AND THAT THE LIABILITY LIMITATIONS IN THIS SECTION 7 (LIMITATIONS OF LIABILITY) ARE AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN THE PARTIES.
8. Term and Termination
8.1 Term; Termination or Suspension. Each license under this Agreement, with respect to each specific set of Licensed Materials covered by this Agreement, will become effective as of the latest to occur of: (a) this Agreement becoming effective, (b) payment by Licensee of the applicable fees, excluding licenses (such as evaluation licenses) where no fees are required, (c) delivery of the specific Licensed Materials, and (d) in the case of ComSpace Materials provided in connection with a Relationship Program, upon commencement of the applicable Relationship Program period or fixed term. Each of ComSpace or Licensee may terminate this Agreement, Licensee’s license as to Licensed Materials, Licensee’s Relationship Program, and/or the provision of Services relating to the Licensed Materials if the other party is in breach of this Agreement and fails to cure such breach within ten (10) days after written notice of the breach; however, if Licensee is in breach of Section 1 (License) or Section 2 (License Limitations; Prohibitions), ComSpace may terminate this Agreement, Licensee’s license as to Licensed Materials, Licensee’s Relationship Program, and/or the provision of Services relating to the Licensed Materials immediately upon written notice of the breach. In addition, ComSpace may, as an alternative to termination, suspend Licensee’s license as to the Licensed Materials, Licensee’s Relationship Program, the provision of Services relating to the Licensed Materials, and/or other ComSpace obligations or Licensee rights under this Agreement (or under other terms, if any, relating to materials associated with the Licensed Materials), if Licensee fails to make a payment to ComSpace or a Reseller or otherwise fails to comply with the provisions of this Agreement or other terms relating to any such license, Relationship Program, Services, or other associated materials. ComSpace may also terminate this Agreement if Licensee becomes subject to bankruptcy proceedings, becomes insolvent, or makes an arrangement with Licensee’s creditors. This Agreement will terminate automatically without further notice or action by ComSpace if Licensee goes into liquidation.
Licensee acknowledges and agrees that ComSpace may assign or sub-contract any of its rights or obligations under this Agreement.
8.2 Effect of Termination of Agreement or License. Upon termination or expiration of this Agreement, the licenses granted hereunder will terminate. Upon termination or expiration of any license granted to Licensee, Licensee must cease all use of ComSpace Materials to which such license applies, any Relationship Program (including, without limitation, associated services), and any Services and Uninstall all copies of the ComSpace Materials. At ComSpace’s request, Licensee agrees to destroy or return to ComSpace or the Reseller from which they were acquired all ComSpace Materials. ComSpace reserves the right to require Licensee to show satisfactory proof that all copies of the ComSpace Materials have been Uninstalled and, if so requested by ComSpace, destroyed or returned to ComSpace or the Reseller from which they were acquired. If Licensee’s Relationship Program is terminated or expires, but this Agreement and Licensee’s license to the Licensed Materials remains in effect, any rights of Licensee based on the Relationship Program (including, without limitation, rights with respect to Previous Versions) will terminate, and (unless otherwise authorized by the Relationship Program Terms) Licensee must comply with the obligations of Section 1.2.1 (Effect of Upgrades) with respect to (including the obligations to cease use of, Uninstall and destroy or return) all copies of such Previous Versions.
8.3 Survival. Sections 1.3 (Additional Terms), 1.4 (Other Materials), 1.5 (Authorized Users), 1.6 (Third-Party Licensed Materials), 1.11 (APIs), 2.1.1 (No License Granted;Unauthorized Activities), 2.1.4 (Effect of Unauthorized Use), 2.2 (Circumvention), 3 (All Rights Reserved), 4 (Privacy; Use of Information; Connectivity), 5.2 (Disclaimer), 6 (Warnings), 7 (Limitations of Liability), 8 (Term and Termination), and 9 (General Provisions) and Exhibit A will survive any termination or expiration of this Agreement.
9. General Provisions
9.1 Notices. Notices in connection with this Agreement by either party will be in writing and will be sent by electronic mail, postal service, or a delivery service (such as UPS, FedEx or DHL), except that Licensee may not provide notice to ComSpace of an ComSpace breach or provide notice of termination of this Agreement by electronic mail. Notices from ComSpace to Licensee will be effective (a) in the case of notices by email, one (1) day after sending to the email address provided to ComSpace, or (b) in the case of notices by mail or delivery service, five (5) days after sending by regular post or delivery service to the address provided to ComSpace. Licensee hereby consents to service of process being effected on Licensee by registered mail sent to the address set forth on Licensee’s Customer Information Form (or, if no Customer Information Form has been provided, Licensee’s last address known by ComSpace) if so permitted by applicable law. Notices from Licensee to ComSpace will be effective (a) in the case of notices by email, one (1) day after sending to (and receipt by ComSpace at) firstname.lastname@example.org, or (b) in the case of notices by mail or delivery service, when received by ComSpace at ComSpace, 17 Whipbird Street, Baldivis, WA 6171, Australia, Attention: Copyright Agent. If Licensee participates in a Relationship Program, either party may also provide notice as set forth in the Relationship Program Terms.
9.2 Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of (a) Germany if Licensee acquired the ComSpace Materials in a country in Europe, Africa or the Middle East, (b) Australia if Licensee acquired the ComSpace Materials in a country in Asia, Oceania or the Asia-Pacific region, or (c) Canada if Licensee acquired the ComSpace Materials in a country in the Americas (including the Caribbean) or any other country not specified in this Section 9.2 (Governing Law and Jurisdiction). The laws of such jurisdictions shall govern without reference to the conflicts-of-laws rules thereof. The UN Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act shall not apply to (and are excluded from the laws governing) this Agreement.
9.3 No Assignment; Insolvency. Licensee may not assign this Agreement or any rights hereunder (whether by purchase of stock or assets, merger, change of control, operation of law, or otherwise) without ComSpace's prior written consent, which may be withheld in ComSpace's sole and absolute discretion, and any unauthorized purported assignment by Licensee will be void. Any assignment (regardless of how or on what basis the assignment may occur) will be conditioned on compliance with the following: at least thirty (30) days before assigning or agreeing to any assignment of rights under this Agreement (including transferring any copies of or right to use the Software), (a) Licensee must provide written notice to ComSpace, Uninstall all copies of the Software, and (without limitation of the generality of Section
9.4 (Audits)) allow ComSpace or its designee to inspect the records, systems and facilities of (or operated for) Licensee and its subsidiaries and affiliates to verify (by any means available to ComSpace, whether remotely or on premises) that all copies of the Software have been Uninstalled, (b) the proposed assignee must agree to comply (and Licensee must ensure that the assignee will comply) with all of the obligations of this Agreement with respect to such Software, which agreement must provide that ComSpace is a third-party beneficiary of the assignee’s agreement, and the assignee must provide a copy of the agreement to ComSpace, and (c) Licensee and proposed assignee must comply with all other transfer procedures identified by ComSpace.
9.4 ComSpace Subsidiaries and Affiliates. Licensee acknowledges and agrees that ComSpace may arrange to have its subsidiaries and affiliates engage in activities in connection with this Agreement, including, without limitation, delivering ComSpace Materials and providing Relationship Programs and Services, provided that ComSpace (and not such subsidiaries and affiliates) will remain subject to the obligations of ComSpace under this Agreement. Licensee also agrees that ComSpace’s subsidiaries and affiliates may enforce (including taking actions for breach of) this Agreement.
9.5 Exceptions to Prohibitions; Severability.
9.5.1 Exceptions to Prohibitions. The prohibitions contained in this Agreement will not apply where and to the extent applicable law does not allow such prohibitions to be enforced. Licensee may have other rights under the laws of the state or country within the Territory where the Licensed Materials are acquired, and this Agreement does not change Licensee’s rights under the laws of such state or country if and to the extent the laws of such state or country do not permit this Agreement to do so. Licensee will bear the burden of proof to demonstrate that applicable law does not allow (i) the enforcement of such prohibitions; or (ii) this Agreement to change particular rights in a state or country (and that Licensee has not exceeded the bounds of the unenforceable prohibitions and unchangeable rights).
9.5.2 Severability. If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision or any other provision of this Agreement in any other jurisdiction.
9.6 No Waiver. No term or provision of this Agreement will be considered waived, and no breach excused, unless such waiver is in writing signed on behalf of the party against which the waiver is asserted. No waiver (whether express or implied) will constitute consent to, waiver of, or excuse of any other, different, or subsequent breach.
9.7 Audits. Licensee agrees that ComSpace has the right to require an audit (electronic or otherwise) of the ComSpace Materials and the Installation thereof and Access thereto. As part of any such audit, ComSpace or its authorized representative will have the right, on fifteen (15) days’ prior notice to Licensee, to inspect Licensee’s records, systems and facilities, including machine IDs, serial numbers and related information, to verify Licensee’s Installation of and Access to the ComSpace Materials. Additionally, within fifteen (15) days of the audit request, Licensee will provide to ComSpace all records and information requested by ComSpace in order to verify Licensee’s Installation of and Access to the ComSpace Materials. Licensee will provide full cooperation to enable any such audit. If ComSpace determines that Licensee’s Installation of or Access to the ComSpace Materials is not in conformity with the applicable agreements or terms of service, Licensee will obtain immediately and pay for valid license(s) to bring Licensee’s Installation and Access into compliance and pay the reasonable costs of the audit. In addition to such payment rights, ComSpace reserves the right to seek any other remedies available at law or in equity.
9.8 Language. The English language version of this Agreement is legally binding in case of any inconsistencies between the English version and any translations. If Licensee purchased the license for the Licensed Materials in Canada, Licensee agrees to the following: The parties hereto confirm that it is their wish that this Agreement, as well as other documents relating hereto, including notices, have been and shall be written in the English language only. Les parties ci-dessus confirment leur désir que cet accord ainsi que tous les documents, y compris tous avis qui s'y rattachent, soient rédigés en langue anglaise.
9.9 Construction. Ambiguities in this Agreement will not be construed against the drafter.
9.10 Force Majeure. ComSpace will not be liable for any loss, damage or penalty resulting from delays or failures in performance resulting from acts of God, supplier delay or other causes beyond ComSpace's reasonable control.
9.11 Export Control. Licensee acknowledges and agrees that the ComSpace Materials and Services (including any data submitted by Licensee in connection with a Service and any Licensee-specific output generated by a Service) are subject to the export control and trade sanctions laws, rules and regulations of Australia and may be subject to the export control and trade sanctions laws, rules and regulations of other countries, including but not limited to countries where Licensee is located or operates. Together, these Australian and other country laws, rules, and regulations are referred to as the “Export Control Laws.” Licensee will comply with the Export Control Laws in all respects. Licensee represents, warrants and covenants that neither Licensee nor Licensee’s Personnel (i) are a citizen or resident of, or located within, a nation or region that is subject to Australian trade sanctions or other significant trade restrictions (including, without limitation, the Crimean peninsula, Cuba, Iran, Sudan, Syria and North Korea), (ii) are identified on any applicable government restricted party lists, (iii) will, unless otherwise authorized under the Export Control Laws, use ComSpace Materials or Services in connection with any restricted end use, including, without limitation, design, analysis, simulation, estimation, testing, or other activities related to nuclear activities, chemical/biological weapons, rocket systems or unmanned air vehicles, or (iv) will use the ComSpace Materials or Services to disclose, transfer, download, export, or re-export, directly or indirectly, any Licensee-specific output generated by the ComSpace Materials or Services, Licensee content, third party content, or any other content or material to any country, entity, or party that is ineligible to receive such items under the Export Control Laws or other laws or regulations to which Licensee may be subject. Licensee understands that the requirements and restrictions of the Export Control Laws as applicable to Licensee may vary depending on the ComSpace Materials or Services provided under this Agreement and may change over time. If Licensee learns that ComSpace Materials or Services have been provided to any person or entity in violation of the Export Control Laws, Licensee will notify ComSpace immediately. If ComSpace determines that a violation of the Export Control Laws should be disclosed to the applicable export control authority, provide such assistance and information as ComSpace reasonably requests in connection with such disclosure.
9.12 Entire Agreement. This Agreement and any other terms referenced in this Agreement (such as the Relationship Program Terms and the Services Terms) constitute the entire agreement between the parties (and merge and supersede any prior or contemporaneous agreements, discussions, communications, agreements, representations, warranties, advertising or understandings) with respect to the subject matter hereof, except that particular ComSpace Materials may be subject to additional or different terms associated with such ComSpace Materials. The parties acknowledge that, in entering into this Agreement, they are not relying on any agreements, discussions, communications, agreements, representations, warranties, advertising or understandings other than as expressly set forth in this Agreement. Licensee acknowledges and agrees that ComSpace may add to or change the Relationship Program Terms and the Services Terms from time to time, provided that ComSpace will provide written notice of the additions or changes (and may allow Licensee not to renew, may permit Licensee to terminate, and may offer other options with respect to Relationship Programs or Services) before the additions or changes are effective as to Licensee. In the event of a conflict between this Agreement and any other terms of ComSpace (including, without limitation, the Relationship Program Terms, the Services Terms, or such additional or different terms), the other terms will apply. Terms stipulated by Licensee in any communication by Licensee which purport to vary this Agreement or such other terms will be void and of no effect unless agreed in a writing signed by an authorized representative of ComSpace. Any other modifications to this Agreement will also be invalid unless agreed to in a writing signed by an authorized representative of ComSpace.
10. Additional Terms.
10.1 Licensee agrees to defend, indemnify and hold harmless ComSpace and its subsidiaries and affiliates from and against any and all damages, costs, losses, liabilities, expenses and settlement amounts incurred in connection with any suit, claim or action by any third party alleging that the Redistributable Component and/or Licensee Application infringes or misappropriates any patent, copyrights, moral rights, trademark, trade secret and design rights, whether registered or unregistered, and including any application for registration of any of the foregoing and all rights or forms of protections of a similar nature having equivalent or similar effect to any of these, which may subsist anywhere in the world, of such third party.
(1) "Licensee Application" means, with regard to the Software, a Modification made by Licensee for designing, developing, and testing an application program made by Licensee.
(2) "Modification" means any: (i) addition to the substance of a Sample or any addition to the substance of the contents of a file containing a Sample; (ii) any deletion from the structure of a Sample, or any deletion from the structure of the contents of a file containing a Sample; and/or (iii) any new file that contains any part of a Sample; all of which, in ComSpace’s sole discretion, ensures that the Sample is not the primary source of value.
(3) "Redistributable Component" means the Sample(s) and/or a Modification.
(4) "Sample(s)" means sample source code, or individual animations, still images, and/or audio files contained in the Software, and located in the samples directory, the examples subdirectory, samples files or any similar type directory or file; and in the case of ComSpace Stingray Software only, runtime engine files and associated DLLs in binary form only that are identified by ComSpace and are necessary to allow users of the Licensee Application to use and/or run the Licensee Application.
1. “Access” or “Accessible” means, with respect to a computer program or other materials, (a) to use or execute the computer program or other materials or (b) to use or otherwise benefit from the features or functionality of the computer program or other materials.
2. “Agreement” means this License and Services Agreement, including all exhibits and schedules thereto, as the License and Services Agreement may be amended from time to time in accordance with the terms thereof.
3. “Authorized User” means any individual person who Installs or Accesses, or is authorized to Install or Access, any of the Licensed Materials.
4. “ComSpace” means ComSpace, Australian Business Number, ABN 564 0234 7887.
5. “ComSpace License Manager” means the tool known as ComSpace License Manager or any future ComSpace tool for managing, monitoring or controlling Installation of or Access to ComSpace Materials.
6. “ComSpace Materials” means any materials distributed or made available by ComSpace, directly or indirectly, including Software, Supplemental Materials, User Documentation and Excluded Materials (whether or not licensed to Licensee).
7. “Computer” means (i) a single electronic device, with one or more central processing units (CPUs), that accepts information in digital or similar form and manipulates the information for a specific result based on a sequence of instructions, or (ii) a software implementation of such a device (or so-called virtual machine).
8. “Customer Information Form” means a form completed by or on behalf of Licensee and submitted to ComSpace or a Reseller, directly or indirectly, in connection with Licensee’s order for a license of ComSpace Materials, Relationship Program or Services.
9. “Educational Licensee” means a Licensee who is also (a) a Qualified Educational Institution, (b) Faculty, (c) Student or (d) Other Authorized Educational Licensee. An Educational Licensee may be required to show proof of eligibility if requested by ComSpace. ComSpace, in its sole discretion, retains the right to determine the eligibility of an Educational Licensee.
10. “Educational Purposes” means (i) in the case of a Qualified Educational Institution, Faculty or Other Authorized Educational Licensees, purposes directly related to learning, teaching, training, research and development that are part of the instructional functions performed by a Qualified Educational Institution or Other Authorized Educational Licensee and (ii) in the case of Students, purposes related to learning, training, research or development. “Educational Purposes” does not include commercial, professional or any other for-profit purposes, except as designated at http://www.comspace.rocks/legal or otherwise authorized in writing by ComSpace.
11. “Evaluation Purposes” means purposes of evaluation and demonstration of the capabilities of the Software or Supplemental Materials but excludes competitive analysis and any commercial, professional, or other for-profit purposes.
12. “Excluded Materials” means any materials, including Software, Supplemental Materials or User Documentation (and including, without limitation, any computer programs, modules or components of a computer program, functionality or features of a computer program, explanatory printed or electronic materials, content or other materials, if any), that may be provided or become available to Licensee, by any means, or that are on any media delivered to Licensee, for which (a) Licensee does not have a License Identification, or (b) Licensee has not paid (and continued to pay) the applicable fees. Licensee acknowledges that Excluded Materials are included on media or via download for convenience of the licensing mechanism used by ComSpace, and inclusion does not in any way authorize, expressly or impliedly, a right to use such Excluded Materials.
13. “Faculty” means an individual person who is an employee or independent contractor working for a Qualified Educational Institution.
14. “Install” and “Installation” means, with respect to a computer program or other materials, to copy the program or other materials onto a hard disk or other storage medium.
15. “License Identification” means one or more designations by ComSpace that set forth the License Type (among other things) for Licensee’s license of the Licensed Materials. The License Identification may be (a) located (i) in the Licensed Materials (e.g., in an “About” box, license information dialog box, or text file of Software), (ii) on or with ComSpace packaging, or (iii) in a written confirmation or other notice issued to Licensee by ComSpace and transmitted via email, facsimile, physical delivery, or otherwise, or (b) obtained from ComSpace on request. For clarification, License Identification does not include a designation, confirmation, packaging or other document provided by a Reseller or other third party.
16. “License Type” means a type of license specified by ComSpace for ComSpace Materials, including the types set forth in Exhibit B. License Type includes the terms specified by ComSpace for each type of license, including the applicable terms set forth in Exhibit B. License Type is determined by ComSpace and may be specified in the applicable License Identification.
17. “Licensed Materials” means Software, Supplemental Materials and User Documentation (a) downloaded by clicking on the “I accept” button or other button or mechanism associated with this Agreement or by otherwise indicating assent to this Agreement, (b) delivered prepackaged with this Agreement, or (c) otherwise accompanied by this Agreement, provided that (i) in the case of Software, the Software is identified in an applicable License Identification, and (ii) Licensee has paid (and continues to pay) the applicable fees. Licensed Materials also includes Supplemental Materials and User Documentation that ComSpace provides or makes available to Licensee for use with Software licensed under this Agreement if there are no separate terms for such materials specified by ComSpace. Licensed Materials includes, without limitation, any error corrections, patches, service packs, updates and upgrades to, and new versions of, the Licensed Materials that ComSpace provides or makes available to Licensee under Licensee’s then-current license. Licensee acknowledges that availability of Upgrades and new versions may be subject to additional fees and the Relationship Program Terms. In addition, Licensed Materials includes, without limitation, any Previous Versions and other ComSpace Materials that Licensee receives or retains pursuant to the Relationship Program Terms, but only for so long as and to the extent expressly authorized by the Relationship Program Terms. Notwithstanding the foregoing (or any other provision of this Agreement), Licensed Materials in all cases excludes Excluded Materials.
18. “Licensee” means (a) the company or other legal entity on behalf of which ComSpace Materials are acquired, if the ComSpace Materials are acquired on behalf of such an entity (e.g., by an employee, independent contractor, or other authorized representative), or (b) if there is no such entity, the individual who accepts this Agreement (e.g., by selecting the “I accept” button or other button or mechanism associated with this Agreement or otherwise indicating assent to this Agreement, or by installing, downloading, accessing, or otherwise copying or using all or any portion of the ComSpace Materials). For clarification, “Licensee” refers only to a single, specifically identified legal entity or individual, and does not include any subsidiary or affiliate of any such legal entity or individual or any other related person.
19. “Licensee’s Internal Business Needs” means, in reference to Licensed Materials, the use of such Licensed Materials (and the features and functionality thereof) by Licensee’s own Personnel to meet the internal requirements of Licensee’s business in the ordinary course of such business, provided that Internal Business Needs will in no event include providing or making available such Licensed Materials (or the features or functionality thereof) to any third party.
20. “Networked Basis” means a computing environment that includes a Computer acting as a file server which allows the Licensed Materials Installed on such Computer to be uploaded and Installed to, and operated, viewed or otherwise Accessed from, other Computers through a local area network connection or through a VPN connection subject to compliance with the VPN Requirements.
21. “Other Authorized Educational Licensee” means a Licensee described at http://www.comspace.rocks/legal or as otherwise authorized in writing by ComSpace.
22. “Permitted Number” means a maximum number (e.g., number of authorized users, number of concurrent users, number of computers, sessions, etc.) applicable to a license of the Licensed Materials and to the License Type associated with such license. Such number is determined by ComSpace and may be specified in the applicable License Identification.
23. “Personal Learning Purposes” means (i) personal learning as a Student or (ii) in the case of a non-Student, personal learning, excluding (a) in-person or online classroom learning in any degree-granting or certificate granting program, and (b) learning related to any commercial, professional or other for-profit purposes.
24. “Personnel” means (a) Licensee’s individual employees and (b) individual persons who are independent contractors working on Licensee’s premises and who Install and Access the Licensed Materials only on and through Computers owned or leased and controlled by Licensee.
25. “Previous Versions” means, as to any then-current release of Licensed Materials, a prior release of the Licensed Materials as to which such then-current release is a successor or substitute (as determined by ComSpace).
26. “Qualified Educational Institution” means an educational institution which has been accredited by an authorized governmental agency within its applicable local, state, provincial, federal, or national government and has the primary purpose of teaching its enrolled students. Examples, without limitation, of entities that are included and excluded from this definition are described at http://www.comspace.rocks/legal.
27. “Relationship Program” means (i) Subscription or (ii) a rental program offered generally by ComSpace pursuant to which ComSpace makes available Licensed Materials.
28. “Relationship Program Terms” means the terms for a Relationship Program set forth at http://www.comspace.rocks/legal or any successor or supplemental web page of ComSpace (the URL for which may be obtained on ComSpace’s website or on request).
29. “Reseller” means a distributor or reseller authorized directly or indirectly by ComSpace to distribute authentic ComSpace Materials to Licensee.
30. ”Services” means services (including the results of services) provided or made available by ComSpace, including, without limitation, support services, storage, simulation and testing services, training and other benefits, but excluding services provided or made available as part of a Relationship Program.
31. “Services Terms” means the terms for Services set forth at a location where a user may order or register for, or that is displayed in connection with ordering or registering for, such Services (e.g., a web page) or, if there are no such terms, at http://www.comspace.rocks/legal or any successor or supplemental web pages of ComSpace.
32. “Software” means a computer program, or a module or component of a computer program, distributed or made available by ComSpace. The term “Software” may also refer to functions and features of a computer program.
33. “Stand-alone Basis” means (i) the Licensed Materials are Installed on a single Computer and (ii) the Licensed Materials cannot be Installed on, or operated, viewed or otherwise Accessed from or through any other Computer (e.g., through a network connection of any kind).
34. “Student” means an individual person enrolled as a student at a Qualified Educational Institution.
35. “Subscription” is the program offered generally by ComSpace under which ComSpace provides (among other things) updates and upgrades to, new versions of, and certain other support, services and training relating to ComSpace Materials.
36. “Supplemental Materials” means materials, other than Software and related User Documentation, that are distributed or made available by ComSpace for use with Software. Supplemental Materials include, without limitation, (a) content, such as sample drawings and designs, modules for drawings and designs, and representations of elements used in drawings and designs (e.g., buildings, parts of buildings, fixtures, furniture, bridges, roads, characters, backgrounds, settings and animations), (b) background materials, such as building codes and descriptions of building practices, (c) tools for rendering the output of the Software, such as fonts, and (d) Development Materials, application programming interfaces (APIs), and other similar developer materials (including API Information).
37 “Territory” (a) means the country, countries or jurisdiction(s) specified in the License Identification, or (b) if there is no such License Identification, or no country or jurisdiction is specified in the License Identification, means the country in which Licensee acquires a license to the ComSpace Materials. If the License Identification specifies, or Licensee acquires the ComSpace Materials in, a member country of the European Union or the European Free Trade Association, Territory means all the countries of the European Union and the European Free Trade Association.
38. “Uninstall” means to remove or disable a copy of ComSpace Materials from a hard drive or other storage medium through any means or otherwise to destroy or make unusable a copy of the ComSpace Materials.
39. “Upgrade” means a full commercial version of Licensed Materials (a) which is a successor to or substitute for a qualifying prior release (and may incorporate error corrections, patches, service packs and updates and upgrades to, and may enhance or add to the features or functionality of, the prior release) or different release of Licensed Materials, (b) is provided to a Licensee who has previously licensed the applicable qualifying prior or different release from ComSpace and (c) for which ComSpace generally charges a separate fee or makes available solely to customers under a Relationship Program. Whether ComSpace Materials are an Upgrade may be specified in the applicable License Identification. Whether ComSpace Materials are an Upgrade and whether Licensee has met the qualifications to license particular ComSpace Materials as an Upgrade are determined by ComSpace.
40. “User Documentation” means the explanatory or instructional materials for Software or Supplemental Materials (including materials regarding use of the Software or Supplemental Materials), whether in printed or electronic form, that ComSpace or a Reseller incorporates in the Software or Supplemental Materials (or the packaging for the Software or Supplemental Materials) or otherwise provides to its customers when or after such customers license, acquire or Install the Software or Supplemental Materials.
41. “VPN Requirements” means (i) the Licensed Materials are Accessed through a secure virtual private network (“VPN”); (ii) the maximum number of concurrent users Accessing the Licensed Materials (on a Networked Basis or through the VPN) does not exceed the Permitted Number at any time; (iii) all copies of the Licensed Materials are Installed and Accessed exclusively in conjunction with the technical protection device (if any) supplied with the Licensed Materials; and (iv) the VPN connection is secure and complies with current industry standard encryption and protection mechanisms.
1. Stand-alone (Individual) or Single-user License. If the License Identification identifies the License Type as “Stand-alone”, “Individual" or “Single-user”, then Licensee may Install a single primary copy of the specific release of the Licensed Materials designated in the applicable License Identification on one (1) Computer, on a Stand-alone Basis, and permit Access to such primary copy of the Licensed Materials solely by Licensee’s Personnel, and solely for Licensee’s Internal Business Needs. Licensee may also Install a single additional copy of such Licensed Materials on one (1) additional Computer, on a Stand-alone Basis; provided that (i) such additional copy of the Licensed Materials is Accessed solely by the same person as the primary copy; (ii) such person is Licensee (if Licensee is an individual) or an employee of Licensee; (iii) such person Accesses the additional copy solely to perform work while away from that person’s usual work location and solely for Licensee’s Internal Business Needs; and (iv) the primary and additional copies are not Accessed at the same time. Stand-alone (Individual) or Single-user License is for a perpetual term, except as otherwise provided in this Agreement.
2. Multi-seat Stand-alone License. If the License Identification identifies the License Type as “Multi-seat Stand-alone", then Licensee may Install primary copies of the specific release of the Licensed Materials designated in the applicable License Identification on up to the Permitted Number of Computers, on a Stand-alone Basis, and permit Access to such copies of the Licensed Materials solely by Licensee’s Personnel, and solely for Licensee’s Internal Business Needs. Licensee may also Install additional copies of such Licensed Materials on additional Computers in an amount up to the Permitted Number of Computers, on a Stand-alone Basis; provided that (i) each additional copy of such Licensed Materials is Accessed solely by the same person as the primary copy; (ii) such person is Licensee (if Licensee is an individual) or an employee of Licensee; (iii) such person Accesses the additional copy solely to perform work while away from that person’s usual work location and solely for Licensee’s Internal Business Needs; and (iv) the primary and additional copies are not Accessed at the same time. Multi-seat Stand-alone License is for a perpetual term, except as otherwise provided in this Agreement.
3. Network or Multi-user License. If the License Identification identifies the License Type as “Network" or “Multi-user”, then Licensee may Install copies of the specific release of the Licensed Materials designated in the applicable License Identification on a Computer and permit Access to such Licensed Materials on multiple Computers, on a Networked Basis, solely by Licensee’s Personnel, solely for Licensee’s Internal Business Needs, only so long as the maximum number of concurrent Authorized Users does not exceed the Permitted Number of Authorized Users or other limits imposed by the ComSpace License Manager (if any). Licensee may, at Licensee’s option, also Install the Licensed Materials on a Hot Backup Server; provided that Licensee may Access the Licensed Materials on the Hot Backup Server only during the time period when, and solely for as long as, the primary Installed copy of the Licensed Materials is inoperable and only subject to the same terms and conditions as are applicable to the primary Installed copy. A “Hot Backup Server” means a file server Computer that has a second copy of the Software and Supplemental Materials Installed but that is not permitted to be Accessible except when the primary Installed copy of the Software and Supplemental Materials are inoperable and only for so long as such primary Installed copy is inoperable. A Network or Multi-user License is for a perpetual term, except as otherwise provided in this Agreement.
4. Educational Stand-alone (Individual) License. If the License Identification identifies the License Type as “Educational Stand-alone (Individual)”, then an Educational Licensee may Install a copy of the specific release of the Licensed Materials designated in the applicable License Identification on two (2) Computers (or as otherwise authorized in writing by ComSpace), subject to certain functional limitations described in Section 6.3 (Affected Data), on a Stand-alone Basis, and permit Access to such copy of the Licensed Materials solely by the Educational Licensee solely for Educational Purposes. An Educational Stand-alone (Individual) License is for a fixed term specified in the applicable License Identification or, if no such term is specified, the term is thirty-six (36) months from Installation or as otherwise authorized in writing by ComSpace.
5. Educational Multi-seat Stand-alone License. If the License Identification identifies the License Type as “Educational Multi-seat Stand-alone,” then an Educational Licensee may Install copies of the specific release of the Licensed Materials designated in the applicable License Identification on up to the Permitted Number of Computers, subject to certain functional limitations described in Section 6.3 (Affected Data), on a Stand-alone Basis, and permit Access to such copies of the Licensed Materials solely by Educational Licensees solely for Educational Purposes. An Educational Multi-seat Stand-alone License is for a fixed term specified in the applicable License Identification or, if no such term is specified, the term is thirty-six (36) months from Installation or as otherwise authorized in writing by ComSpace.
6. Educational Network License. If the License Identification identifies the License Type as “Educational Network”, then an Educational Licensee may Install copies of the specific release of the Licensed Materials designated in the applicable License Identification on a single file server Computer, subject to certain functional limitations described in Section 6.3 (Affected Data), and Access such Licensed Materials on multiple Computers on a Networked Basis, and permit Access to such copies of the Licensed Materials solely by Educational Licensees solely for Educational Purposes, only so long as the maximum number of concurrent Authorized Users does not exceed the Permitted Number of Authorized Users. An Educational Network License is for a fixed term specified in the applicable License Identification or, if no such term is specified, the term is thirty-six (36) months from Installation or as otherwise authorized in writing by ComSpace.
7. Personal Learning License. If the License Identification identifies the License Type as “Personal Learning”, then Licensee may Install a copy of the specific release of the Licensed Materials designated in the applicable License Identification on one (1) Computer, subject to certain functional limitations described in Section 6.3 (Affected Data), on a Stand-alone Basis, and permit Access to such copy of the Licensed Materials solely by Licensee, as an individual, solely for Personal Learning Purposes and only at and from locations that are not labs or classrooms and are not operated for commercial, professional or for-profit purposes. A Personal Learning License is for a fixed term specified in the applicable License Identification. If no such term is specified, the term is thirteen (13) months from Installation.
8. Evaluation/Demonstration/Trial. If ComSpace identifies the License Type as a “demonstration”, “evaluation”, “trial,” “not for resale” or “NFR” version (each, an “Evaluation License”) in the applicable License Identification, Licensee may Install a copy of the specific release of the Licensed Materials designated in the applicable License Identification on one (1) Computer, subject to certain functional limitations described in Section 6.3 (Affected Data), on a Stand-alone Basis, and permit Access to such copy of the Licensed Materials, solely by Licensee’s Personnel, solely for Evaluation Purposes, only so long as the maximum number of concurrent Authorized Users does not exceed one (1), and only from Licensee’s work location. An Evaluation License is for a fixed term specified in the applicable License Identification, or if no such term is specified, the term is thirty (30) days from Installation or as otherwise authorized in writing by ComSpace.
9. Fixed Term/Limited Duration/Rental License. If ComSpace identifies a license in the applicable License Identification as being for a specified period or limited duration or as having a fixed term or as a rental license, Licensee’s right to Install and Access the Licensed Materials will continue only for the period, duration or term specified in the License Identification. Such Installation and Access will be in accordance with and subject to the applicable License Type and Permitted Number. If ComSpace identifies a license in the applicable License Identification as being for a specified period or limited duration, or as having a fixed term, or a rental license but no period, duration or term is specified in the License Identification, the period, duration or term will be ninety (90) days from Installation (or the period specified in Sections B.6 (Educational Network License), B.7 (Personal Learning License) or B.8 (Evaluation/Demonstration/Trial) of this Exhibit B with respect to the licenses described in those sections).
10. Session Specific Network License. If the License Identification identifies the License Type as a "Session Specific Network License", Licensee may install one (1) copy of the specific release of the Licensed Materials designated in the applicable License Identification on a Computer and permit Access to such Licensed Materials from multiple Computers through a Supported Virtualization Application, on a Networked Basis, solely by Licensee's Personnel, solely for Licensee's Internal Business needs, only so long as the maximum number of concurrent Sessions does not exceed the Permitted Number or other limits imposed by the ComSpace License Manager tool (if any). For purposes of this Session Specific Network License, (a) a “Session” is defined as a single interactive information exchange between two Computers that are connected through a Supported Virtualization Application, and (b) “Supported Virtualization Application(s)” are those third party virtualization applications or methods that are specifically identified as supported by ComSpace in the User Documentation for the Licensed Materials. With respect to the applicable Supported Virtualization Application, Licensee agrees to activate any available session tracking mechanism, not disable any such session tracking mechanism and to retain all records generated by such session tracking mechanism. A Session Specific Network License is for a perpetual term, except as other wise provided in this Agreement.