End
User Licence Agreement
Last updated 25th
January 2024
Please read this
End-User License Agreement carefully before clicking the "I Agree"
button, downloading or using FumConX.
By clicking the "I
Agree" button, downloading or using the Application, You are agreeing to
be bound by the Terms of this Agreement. If You do not agree to the Terms of
this Agreement, do not click on the "I Agree" button, do not download
or do not use the Application.
Interpretation
1.1. In
this Agreement unless the context otherwise requires:
1.1.1.
headings are for convenience only and do not affect its
interpretation and construction;
1.1.2.
the singular includes the plural and vice versa;
1.1.3.
words importing a gender include other genders;
1.1.4.
where any word or phrase is defined, any other part of
speech or other grammatical form of that word or phrase has a cognate meaning;
1.1.5.
a reference to any statute, proclamation, rule, code,
regulation or ordinance includes any amendment, consolidation, modification,
re-enactment or reprint of it or any statute, proclamation, rule, code,
regulation or ordinance replacing it;
1.1.6.
"includes" is not a word of limitation;
1.1.7.
a reference to anything is a reference to the whole and
each part of it;
1.1.8.
a reference to a group of persons is a reference to all of
them collectively and to each of them individually; and
1.1.9.
a reference to a document includes all amendments or
supplements to, or replacements or novation of, that document.
Definitions
1.2. The
words of which the initial letter is capitalized have meanings defined under
the following conditions. The following definitions shall have the same meaning
regardless of whether they appear in singular or in plural.
1.3. For
the purposes of this End-User License Agreement:
1.3.1.
Account Information means Your related account details,
including email address, Devices registered, account status, physical address,
phone number, or other contact information;
1.3.2.
Agreement means this End-User License Agreement that forms
the entire agreement between You and the Licensor regarding the use of the
Application;
1.3.3.
Application means the software program provided by the Licensor
downloaded by You through an Application Store's account to a Device, named
FumConX;
1.3.4.
Application Data means the Application technical data, downloaded
related information about the Device it is installed on, the, software, and
peripherals, Account Information and Device Information;
1.3.5.
Application Store means the digital distribution service
operated and developed by Apple Inc. (Apple App Store) or Google Inc. (Google
Play Store) by which the Application has been downloaded to your Device;
1.3.6.
Device means any iOS and Android device that can access the
Application such as a computer, a cellphone or a digital tablet;
1.3.7.
Device Information means data from which Your Device could
be identified, such as device serial number, or about your device, such as
browser type and Device system information;
1.3.8.
Intellectual Property means all present and future rights,
title and interests in and to inventions, innovations, know-how, patents,
patent applications, registered and unregistered trademarks, service marks,
registered and unregistered designs, copyrights, circuit layouts, domain names,
internet addresses, computer programs or software or brand names;
1.3.9.
Law means any applicable statute, regulation, by-law,
ordinance or subordinate legislation in force from time to time anywhere in
Australia, whether made by a State, Territory, the Commonwealth, or a local
government and includes the general law and equity as applicable from time to
time in the relevant geographical location;
1.3.10. Licensor
(referred to as either “Licensor”, "the Company", "We",
"Us" or "Our" in this Agreement) refers to ComConX Pty Ltd (A.C.N.
668 115 197), 6 Hamilton Street, Wyreema, Queensland 4352, Australia;
1.3.11.
Loss means any loss of any kind whatsoever, whether actual,
contingent or prospective, including any liability, cost, expense (including
legal costs on a full indemnity basis), claim, proceeding, action, demand or
damage;
1.3.12.
Privacy Act means Privacy Act 1988 (Cth) and Privacy
Law means the Privacy Act and any other Law or enforceable codes and guidelines
regulating the collection, use and/or disclosure of personal information;
1.3.13.
Terms means the terms and conditions of this Agreement;
1.3.14. Third-Party
Services means any services or content (including data, information,
applications and other products services) provided by a third-party that may be
displayed, included or made available by the Application;
and
1.3.15. You
means the individual accessing or using the Application or the company, or
other legal entity on behalf of which such individual is accessing or using the
Application, as applicable.
2.1.
The Application (FumConX) is a software application designed
to create efficient communication between fumigators and their respective
clients whilst maintaining electronic records which has been customised for iOS
and Android Devices. It is used to create fumigation legislative record keeping
and client-specific documents required for the grain export industry.
3.1.
This Agreement is between You and the Licensor, and governs
the Application made available to You.
3.2.
Upon:
3.2.1.
selecting the 'Accept' option;
3.2.2.
payment of the license fee for the Application at the point
of purchasing the licence for the Application; or
3.2.3.
upon downloading from the Application Store or otherwise, installing
or using the Application (whichever comes first),
You are granted a
revocable, non-transferable, non-exclusive and limited licence ("Licence")
strictly in accordance with the Terms of this Agreement.
3.3.
If You do not agree to the Terms of this Agreement, You
must not install, use, or copy the Application. The Application is licensed,
not sold, to You by the Licensor for use strictly in accordance with the Terms
of this Agreement.
3.4. This Licence will also govern any updates of the
Application provided by the Licensor that replaces, repairs, and/or supplements
the first licensed Application unless a separate licence is provided for such
update, in which case the terms of that new licence will govern.
4.1.
This Agreement entitles You to:
4.1.1.
install and use the Application on any Devices that You own
or control;
4.1.2.
install and use the Application as permitted by the
Application Store's terms and conditions; or
4.1.3.
install and make an archival copy of the Application on a
storage medium other than a hard drive, and may only be used for the
reinstallation of the Application.
5.1.
Nothing in this Agreement or Licence should be interpreted
to restrict the Application Store's
terms and conditions or any other third-party terms. When using the
Application, You must ensure that You comply with applicable third-party terms
and conditions.
Limitations
on transfer
5.2.
You must not assign your rights and obligations under this
Agreement, or redistribute, encumber, sell, rent, lease, sublicense, or
otherwise transfer your rights to the Application.
Limitations on use
5.3.
You must not:
5.3.1.
share the Licence, or contents of the Application, with
others; or
5.3.2.
permit the use, copying or installation of the Application
by more than one user or on more than one Device.
unless You hold
multiple, validly, licensed copies.
5.4.
You must not:
5.4.1.
reverse engineer, translate, disassemble, integrate,
decompile, remove, modify, combine, create derivative works or updates of,
adapt, or attempt to derive the source code of the Application, or any part
thereof;
5.4.2.
broadcast, transmit or otherwise display in a public forum
or any venue not restricted to You, the Application or any part of the product;
or
5.4.3.
post the Application or part of the Application on any
website.
5.5.
You must not:
5.5.1.
use the Application for any purpose other than what it was
designed and intended for; or
5.5.2.
use the Application in any way that would result in
incorrect, inaccurate or fraudulent results or reports.
Limitations
on derived works
5.6.
You must not modify the Application, create derivative
works based upon the Application, or use the Application to develop any product
having the same primary function as the Application.
Limitations
on alteration
5.7.
You must not:
5.7.1.
modify the Application or create any derivative work of the
Application or its accompanying documentation. Derivative works include but are
not limited to translations; or
5.7.2.
alter any files or libraries in any portion of the Application.
Limitations
on copying
5.8.
You must not copy any part of the product except to the
extent that the licensed use inherently demands the creation of a temporary
copy stored in the Device memory and not permanently affixed on a storage
medium.
5.9.
You may create and store copies only on Devices that You
own or control for backup keeping under the terms of this Licence, and any
other terms and conditions that apply to the Device or software used. You may
not remove any intellectual property notices. You acknowledge that no
unauthorised third parties may gain access to these copies at any time. If You
sell your Devices to a third party, You must remove the Licensed Application
from the Devices before doing so.
6.1.
The Licensed Application requires a firmware version 1.0.0
or higher. The Licensor recommends using the latest version of the firmware at
all times.
6.2.
You acknowledge that it is Your responsibility to confirm
and determine that the Device on which You intend to use the Application
satisfies the technical specifications mentioned above.
6.3.
The Licensor reserves the right to modify the technical
specifications of the Application as required at any time.
7.1.
The Licensor will attempt to keep the Application updated
so that it complies with modified/new versions of the firmware and new
hardware. As a result, the Licensor may from time to time provide enhancements
or improvements to the features/functionality of the Application, which may
include patches, bug fixes, updates, upgrades and other modifications. Updates
may modify or delete certain features and/or functionalities of the
Application.
7.2.
You agree that the Licensor has no obligation to:
7.2.1.
provide any Updates, or
7.2.2.
continue to provide or enable any particular features
and/or functionalities of the Application to You.
7.3.
You further agree that all updates or any other
modifications will be:
7.3.1.
deemed to constitute an integral part of the Application;
and
7.3.2.
subject to the Terms of this Agreement.
8.1. You
acknowledge that the Licensor has no obligation whatsoever to provide You with
any maintenance and support services with respect to the Application.
8.2.
Notwithstanding clause 8.1, any maintenance and
support services enquiries and requests must only be directed to the Licensor who
can be contacted at the email address listed at the Application Store.
9.1.
You agree and acknowledge that the Licensor may access the
Application Data and You grant to the Licensor a perpetual, irrevocable and
royalty-free license to use and modify the Application Data for the purpose of
quality improvement, statistical reporting (including benchmark reports),
service planning, practice support and research.
9.2. You
and the Licensor will both comply with the Privacy Act and all other applicable
Privacy Laws with respect to the use, possession, storage, disclosure and
processing of Application Data.
10.1.
The Application may display, include or make available
third-party content (including data, information, applications and other
products and services) or provide links to third-party websites or services
(Third-Party Services).
10.2.
You acknowledge and agree that the Licensor shall not be responsible
for any Third-Party Services, including their accuracy, completeness,
timeliness, validity, copyright compliance, legality, decency, quality or any
other aspect thereof. The Licensor does not assume and shall not have any
liability or responsibility to You or any other person or entity for any Third-Party
Services.
10.3.
You must comply with applicable Third Parties' terms and
conditions when using the Application. Third-Party Services and links thereto
are provided solely as a convenience to You and You access and use them
entirely at your own risk and are subject to such third-party terms and
conditions.
11.1.
The Application does not offer You the ability to submit or
post content. However, the Licensor may (in its sole discretion) provide You
with the opportunity to create, submit, post, display, transmit, perform,
publish, distribute, or broadcast content and materials to the Licensor or in
the Application, including but not limited to text, writings, video, audio,
photographs, graphics, comments, suggestions, or personal information or other
material (collectively, 'Contributions').
11.2.
The Contributions may be viewable by other users of the
Application and through third-party websites or other applications. As such,
any Contributions You transmit will be treated in accordance with the
Application’s Privacy Policy. When you create or make available any
Contributions, You agree and acknowledge that:
11.2.1.
The creation, distribution, transmission, public display,
or performance, and the accessing, downloading, or copying of your
Contributions do not and will not infringe the proprietary rights, including
but not limited to the copyright, patent, trademark, trade secret, or moral
rights of any third party;
11.2.2.
You are the creator and owner of or have the necessary
licences, rights, consents, releases, and permissions to use and to authorise
us, the Application, and other users of the Application to use your
Contributions in any manner contemplated by the Application and this Agreement;
and
11.2.3.
You have complied with the Privacy Law and have the
necessary written consent, release, and/or permission for every identifiable
individual person in your Contributions to use the name or likeness of every
such identifiable individual person to enable inclusion and use of your
Contributions in any manner contemplated by the Application and this Agreement.
11.2.4.
Your Contributions:
11.2.4.1.
are not false, inaccurate, or misleading;
11.2.4.2.
are not unsolicited or unauthorised advertising,
promotional materials, pyramid schemes, chain letters, spam, mass mailings, or
other forms of solicitation;
11.2.4.3.
are not obscene, lewd, lascivious, filthy, violent,
harassing, libellous, slanderous, or otherwise objectionable (as determined by
us);
11.2.4.4.
do not ridicule, mock, disparage, intimidate, or abuse
anyone;
11.2.4.5.
are not used to harass or threaten (in the legal sense of
those terms) any other person and to promote violence against a specific person
or class of people;
11.2.4.6.
do not violate any Law, regulation, or rule;
11.2.4.7.
do not violate the privacy or publicity rights of any third
party;
11.2.4.8.
do not violate any applicable Law concerning child
pornography, or otherwise intended to protect the health or well-being of
minors;
11.2.4.9.
do not include any offensive comments that are connected to
race, national origin, gender, sexual preference, or physical handicap; and
11.2.4.10.
do not otherwise violate, or link to material that violates
any provision of this Agreement, or any applicable Law or regulation.
11.3.
By submitting Your Contributions, You agree that the
Licensor can use and share such feedback for any purpose without compensation
to You.
11.4.
You acknowledge and agree that the Licensor will not be
liable for any statements or representations made in your Contributions and You
expressly agree to indemnify the Licensor from any Loss incurred by the
Licensor as a result of your Contributions.
11.5.
Any use of the Application in violation of the foregoing
violates this Agreement and may result in, among other things, termination or
suspension of your rights to use the Application.
12.1.
The Licensor retains all rights, title and interest,
including all copyrights, patents, trademarks, trade secrets and Intellectual
Property rights, in and to, the Application and all copies thereof.
12.2.
The Licensor shall not be obligated to indemnify or defend
You with respect to any third-party claim arising out of or relating to the
Application. To the extent the Licensor is required to provide indemnification
by applicable Law, the Licensor, not the Application Store, shall be solely
responsible for the investigation, defence, settlement and discharge of any
claim that the Application or your use of it infringes any third party
intellectual property rights.
13.1.
The Application is provided to You "AS IS" and
"AS AVAILABLE" and with all faults and defects without warranty of
any kind. To the maximum extent permitted under applicable Law, the Licensor,
on its own behalf and on behalf of its affiliates and its and their respective
licensors and service providers, expressly disclaims all warranties, whether
express, implied, statutory or otherwise, with respect to the Application,
including all implied warranties of merchantability, fitness for a particular
purpose, title and non-infringement, and warranties that may arise out of
course of dealing, course of performance, usage or trade practice. Without
limitation to the foregoing, the Licensor provides no warranty or undertaking,
and makes no representation of any kind that the Application will meet your
requirements, achieve any intended results, be compatible or work with any
other software, applications, systems or services, operate without
interruption, meet any performance or reliability standards or be error-free or
that any errors or defects can or will be corrected.
13.2.
Without limiting the foregoing, neither the Licensor nor
the Application Store makes any representation or warranty of any kind, express
or implied:
13.2.1.
as to the operation or availability of the Application, or
the information, content, and materials or products included thereon;
13.2.2.
that the Application will be uninterrupted or error-free;
13.2.3.
as to the accuracy, reliability, or currency of any
information or content provided through the Application; or
13.2.4.
that the Application, its servers, the content, or e-mails
sent from or on behalf of the Licensor are free of viruses, scripts, trojan
horses, worms, malware, timebombs or other harmful components.
13.3.
Provisions of the Competition and Consumer Act 2010 (Cth)
and other Laws in force from time to time in Australia may imply guarantees,
warranties, conditions, and impose obligations on the Licensor and its
subsidiaries, affiliates, and suppliers ("Implied Terms"). If these
Implied Terms apply, the Licensor's liability will be limited to its option to
resupply, repair replace the Application or the cost of such resupply, repair
or replacement, to the extent permitted by Law.
13.4.
Unless otherwise explicitly agreed to in writing by the
Licensor, subject to the Implied Terms, all representations, guarantees,
conditions and warranties of any nature are expressly excluded.
13.5.
Nothing in this clause excludes, restricts or modifies your
rights under an Implied Term.
14.1.
Subject to any Implied Term, to the maximum extent
permitted by applicable Law, the Licensor, its directors, officers, employees,
or agents will not be liable to You or any other party for any special,
incidental, indirect, or consequential damages whatsoever (including, but not
limited to, damages for loss of profits, loss of data or other information, for
business interruption, for personal injury, loss of privacy arising out of or
in any way related to the use of or inability to use the Application,
third-party software and/or third-party hardware used with the Application, or
otherwise in connection with any provision of this Agreement) whether based on
contract, tort, statute, or any other legal theory, even if the Licensor or any
supplier has been advised of the possibility of such damages and even if the
remedy fails of its essential purpose.
14.2.
You expressly understand and agree that the Application
Store, its subsidiaries and affiliates, and its licensors shall not be liable
to You under any theory of liability for any direct, indirect, incidental,
special consequential or exemplary damages that may be incurred by You,
including any loss of data, whether or not the Application Store or its
representatives have been advised of or should have been aware of the
possibility of any such losses arising.
15.1.
To the extent that the applicable jurisdiction limits the
Licensor's ability to disclaim any implied warranties, this disclaimer shall be
effective to the maximum extent permitted.
16.1.
You will indemnify the Licensor, its directors, officers,
employees, agents and contractors in full against any liability, Loss, damages,
costs and expenses as a result of or in connection with your use of the Application,
including but not limited to, any modification by You of the Application which
causes the Application to infringe the intellectual property rights of a third
party.
16.2.
You agree to indemnify and hold the Licensor and its
directors, officers, employees, agents and contractors (if any) harmless from
any Loss, claim or demand, including reasonable legal fees, due to or arising
out of Your:
16.2.1.
use of the Application;
16.2.2.
breach of this Agreement or any Law; or
16.2.3.
infringement of any right of a third party.
16.3.
Each indemnity in this Agreement is a continuing
obligation, separate and independent from the other obligations of the
indemnifying party and survives termination of this Agreement.
17.1.
The Licensor reserves the right to amend these Terms from
time to time without notice to You and You will be subject to the Terms in
force at the time You purchase the Licence for the Application or download the Application
whichever is applicable.
18.1.
This Agreement shall
remain in effect until terminated by You or the Licensor. The Licensor may, in its sole discretion, at any time and for any
or no reason, suspend or terminate this Agreement with or without prior notice.
18.2.
This Agreement will
terminate immediately, without prior notice from the Licensor, in the event that you fail to comply with any
provision of this Agreement. You may also terminate this Agreement by deleting
the Application and all copies thereof from your Device or from your Device.
18.3.
Upon termination of
this Agreement, You shall cease all use of the Application and delete all
copies of the Application from your Device and any other storage locations.
18.4.
Termination of this
Agreement will not limit any of the Licensor's rights or remedies at Law or in equity in case of
breach by You (during the term of this Agreement) of any of your obligations
under the present Agreement.
19.1. Any
provision of, or the application of any provision of this Agreement, which is
prohibited in any jurisdiction is, in that jurisdiction, ineffective only to
the extent of that prohibition.
19.2. This
Agreement is not to be construed against a party merely because that party was
responsible for preparing it.
19.3. Any
provision of, or the application of any provision of this Agreement that is
void, illegal or unenforceable in any jurisdiction does not affect the
validity, legality or enforceability of that provision in any other
jurisdiction or of the remaining provisions in that or any other jurisdiction.
19.4. The
failure, delay, relaxation or indulgence on the part of a party in exercising,
in part or whole, any power, right or remedy conferred upon that party by these
Terms shall not operate as a waiver of that power, right, or remedy. The fact
that a party fails to do, or delays in doing, something the party is entitled
to do under this Agreement, does not amount to a waiver of any obligation of,
or breach of obligation by, another party.
A waiver by a party is only effective if it is in writing. A written waiver by a party is only effective
in relation to the particular obligation or breach in respect of which it is
given. It is not to be taken as an
implied waiver of any other obligation or breach or as an implied waiver of
that obligation or breach in relation to any other occasion.
19.5. This
Agreement contains the entire Agreement between the Parties and supersedes any
previous understandings, commitments or agreements, oral or written.
written or oral agreements between You and the Licensor. You may be subject to
additional terms and conditions that apply when You use or purchase any other
of the Licensor's services, which the Licensor will provide to You at the time
of such use or purchase.
19.6.
Each provision of this Agreement is individually severable.
If a clause or part of a clause of this Agreement can be read in a way that
makes it illegal, unenforceable or invalid, but can also be read in a way that
makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal,
unenforceable or invalid, that clause or part is to be treated as removed from
this Agreement, but the rest of this Agreement is not affected.
19.7.
This Agreement is governed by the law of the State of
Queensland, Australia. The parties
submit to the non-exclusive jurisdiction of its courts and all courts which
have jurisdiction to hear appeals from those courts. The parties will not
object to the exercise of jurisdiction by those courts, either for forum
non-conveniens or on any other basis.
20.1.
Any general inquiries, complaints, questions or claims
concerning the Application must be directed to the Licensor and not the Application
Store or any other third party.
20.2.
For general inquiries, complaints, questions or claims
concerning the Application, please contact:
ComConX
Pty Ltd
Postal: PO
Box 18128, Clifford
Gardens, Queensland, 4350, Australia
Email: info@comconx.au
