End User Licence Agreement (EULA)
PLEASE READ THIS END USER LICENSE AGREEMENT (“EULA”) CAREFULLY BEFORE INSTALLING OR USING OUR SOFTWARE PRODUCT. BY CLICKING “I AGREE” OR TAKING ANY STEP TO DOWNLOAD, SET-UP, INSTALL OR USE ALL OR ANY PORTION OF THIS SOFTWARE PRODUCT – Konnect eMail (“Konnect eMail”), YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS EULA. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE SOFTWARE IN ANY WAY.
DEFINITIONS: In this EULA, capitalised terms have the following meanings:
Affiliate(s) means an entity that directly or indirectly (including through intermediaries), is controlled by, or is under common control with, or controls, a party where the control is exercised by at least a 50% ownership interest through stock ownership or voting rights.
Commencement Date means the date the Software is downloaded from the download link by the subscriber.
Documentation means any media, printed materials, electronic documentation and technical, operating and user manuals made available by Konnect eMail in relation to the Software, including such materials made available on the Konnect eMail Website.
Fees means the licence fees for the Software and, where applicable, the annual maintenance fees for Support and Maintenance payable by Licensee under the Subscription, as set forth in the then current price list of Konnect eMail from time to time.
Number of Users means the number of Users indicated in the Order Form.
Order Form means an online, electronic or hardcopy communication by or on behalf of Licensee to Konnect eMail, which contains details of Licensee and the relevant order, including the name of Licensee, the Software and the Number of Users, and for the purpose of downloading, ordering or confirming orders of the Software. Order Forms include the information webpage completed by a Licensee on the Konnect eMail Website, the Customer Order Form (as provided by Konnect eMail), or a purchase order issued by Licensee or PayPal information webpage completed by or on behalf of a Licensee, to the extent such purchase order or PayPal information webpage contains the above information, but do not include any terms or conditions printed on or referred to in such purchase order or PayPal information webpage.
Software means the Software as indicated in the Order Form, all Updates and the Documentation, but does not include any Third Party Software.
Support and Maintenance means the support and maintenance services provided by Konnect eMail to Licensee relating to installation and use of the Software.
Subscription means the package offering by Konnect eMail for the applicable Fee consisting of a licence to install and use the Software and the provision of Support and Maintenance as selected by Licensee in the Order Form.
Third Party Software means Software which is created or developed by a party other than Konnect eMail and includes open source Software.
Updates means any patches and modifications, enhancements, improvements and revisions of the Software, including new releases of Software, made available by Konnect eMail at its discretion from time to time.
User means each person (including a person under the authority or control of an Affiliate of Licensee) who is permitted access to the Software by Licensee and uses the Software under the authority or control of Licensee.
1. ACCEPTANCE OF TERMS
This End User Licence Agreement for installation and use of the Software is provided by Apex Holding PTY. LTD. D/B/A Konnect eMail. This Agreement together with completed Order Form (“EULA”) is a legal agreement between Konnect eMail (hereinafter “Licensor”) and you (hereinafter “Licensee”). The Licence is granted to you conditioned on your acceptance without modification, of the Terms, conditions, and notices contained in this Agreement and any operating rules, policies, and procedures that are published from time to time. YOU AGREE TO BE BOUND BY THIS EULA TERMS AND CONDITIONS ON YOUR OWN BEHALF AND ON BEHALF OF YOUR ORGANIZATION. Your use of the License constitutes legally binding agreement to all such Terms. For the avoidance of doubt no terms or conditions of Licensee, including any terms or conditions printed on or referred to in Licensee’s offer to purchase or order will be binding on Konnect eMail or have any legal effect unless expressly agreed to in writing by Konnect eMail.
2. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHT
2.1 Apex Holding PTY. LTD. D/B/A Konnect eMail, an Australian Company with ABN 57 615 400 756, ACN 615 400 756, registered in Australia (hereinafter referred to as “Konnect eMail”), owns all rights, title, and interest in two Software products – Konnect eMail Outlook Add-In, and Konnect eMail SharePoint Add-In. Licensee acquires no right, title or interest in or to that intellectual property by virtue of this EULA other than as expressly stated in this EULA. Licensee owns all content it uploads using the Software and all intellectual property rights subsisting in the content.
2.2 Licensee agrees that all intellectual property rights therein including but not limited to any images, photographs, video, audio, music, animation, text embedded in the Software, Trademark, Service Marks belong to Konnect eMail. The structure, organization, and codes of Konnect eMail Outlook Add-In and Konnect eMail SharePoint Add-In are the valuable trade secrets and confidential information owned by Konnect eMail. The rights and interests in all copies of or modifications to the Software remain with Konnect eMail. Konnect eMail is protected by copyright and other intellectual property laws and treaties, including, without limitation, the copyright laws of Australia, International Treaty provisions and other applicable laws. All rights not expressly granted herein are reserved by Konnect eMail.
2.3 Konnect eMail is licensed, but not sold. Licensee agrees to adhere to the Terms and Conditions of this EULA. Licensee agrees that to the extent permitted by law, all improvements including all intellectual property rights in relation to any feedback, ideas, suggestions, proposals, development, modification, adaptation or improvement or in relation to the Software made or acquired by Licensee during the term of the EULA, shall vest in or are hereby assigned to Konnect eMail. Konnect eMail grants to Licensee a licence to use any Improvements on the terms of this EULA. Where title to Improvements is not permitted by law to vest in Konnect eMail, Licensee grants to Konnect eMail a perpetual, irrevocable, transferable, royalty-free, worldwide licence (including the right to sublicense) to use the Improvements for any purpose.
2.4 Licensee agrees not to take any action or assist any person to take any action that may jeopardise, limit, challenge or interfere with Konnect eMail’s ownership of or rights in the Software.
2.5 If there is any infringement claim against the Software, Konnect eMail may suspend the use of the Software licence granted by it until it has either replaced, modified or re-worked the Software, in whole or in part (or direct Licensee to do so) so that such infringement is removed; or procured the right for Licensee to continue use the Software in accordance with this EULA.
3. SCOPE OF LICENCE
Upon acceptance of this EULA in relation to the Software and payment of the applicable Fees by Licensee, Konnect eMail grants to you a non-exclusive, non-transferable, non-sublicensable licence to install and use the Software subject to the terms and conditions of this EULA for the term of the subscription, from the Commencement Date.
3.1 The Licence granted to you by Konnect eMail for use of Konnect eMail Outlook Add-In and Konnect eMail SharePoint Add-In is limited to a non-transferable licence to use Konnect eMail product/service. Konnect eMail may also provide some upgrades and new features free of cost.
3.2 Type of Licence: The Licence granted for use of Konnect eMail Outlook Add-In is a per use per year basis; and the Licence granted for use of Konnect eMail SharePoint Add-In is a one year licence.
3.3 Number of Users: The number of users permitted under Konnect eMail Outlook Add-In licence is limited to the number of licenses acquired for users; and there is no user restriction on the number of users using the Konnect eMail SharPoint Add-In licence. The number of permitted users may not be reduced before the end of the subscription term. Licensee may authorise different Users to access and use the Software from time to time, provided that Licensee must ensure that the Software is not installed for use by more than the Number of Users at any one time and that any person who ceases to be a User no longer accesses or uses the Software. Licensee must, on request by Konnect eMail, report the number of Users every 6 months/ whenever requested by Konnect eMail, during the term of the Licence.
3.4 Copy: Licensee must not copy the Software to any storage device or other server or remove or relocate the server for which the Software is licensed under this EULA except as expressly permitted by this EULA or by law, unless with Licensor’s prior written consent. Licensee can make copy of the Software for backup purpose or for the purpose of updating or upgrading hardware, system maintenance, ensuring the continued availability of the Software to authorised Users or is otherwise expressly permitted by law. Users can make single copy of the Software and access the Software through only the licensed server.
3.5 Third Party Software: The Software may incorporate or access Third Party Software and services. Licensee agrees to and must ensure all Users comply with all applicable terms and conditions for the Third Party Software at all times. To the extent permitted by law, all Third Party Software provided with or contained in the Software is provided “AS IS” without warranty of any kind. Licensor will have no liability or responsibility for the operation or performance of the Third Party Software and will not be liable for any damages, costs, or expenses, direct or indirect, arising out of the performance or failure to perform of the Third Party Software.
3.6 Restrictions: You may not claim ownership of the Software or distribute or make the Konnect eMail Software available over a network where it could be used by multiple users at the same time. You must not remove or alter any titles, trademarks, legends, copyright notices and other proprietary markings on any and all copies of the Konnect eMail. You may not rent, lease, lend, sell, redistribute or sublicense the Konnect eMail. You agree not to copy, decompile, reverse engineer, disassemble, attempt to derive the source code of Software, circumvent technological measures put in place by Konnect eMail to control access to the Software, modify, or create derivative works of the Konnect eMail, any Updates, or any part thereof, except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of the Konnect eMail. You shall not use or copy the Software except as expressly provided in this EULA.
3.7 Any attempt to do so is a violation of the rights of Konnect eMail. If you breach this restriction, you may be subject to legal action and damages. The terms of the licence will govern any add-ons/upgrades provided by the Company that replace and/or supplement the original Product, unless such upgrade is accompanied by a separate licence in which case the terms of that licence will govern. Any information supplied by Konnect eMail or its Channel Partner or obtained by you, as permitted hereunder, may only be used by you for the purpose described herein and may not be disclosed to any third party or used to create any Product/Application which is substantially similar to the expression of the Konnect eMail. Requests for information should be directed to Konnect eMail.
4.1 Delivery and Risk: The Software will be made available to Licensee for download from the download link that will be provided by Konnect eMail. Risk of damage to the Software passes to the Licensee on delivery.
4.2 System Requirement: The Software works in systems with minimum configuration requirements as indicated to the Licensee by Konnect eMail. Licensee acknowledges that the Software to become functional, the minimum specified requirements of computer/server will be used. Licensee acknowledges and agrees that it is solely responsible for obtaining, installing, operating and maintaining all hardware, other equipment and Third Party Software required for use of the Software; and data backup. Licensor shall not be responsible for any data loss arising through the use of the Konnect eMail Software or interaction of the Software with any third party Software.
4.3 Evaluation Version: Licensor may provide Licensee with an evaluation version of the Software solely for Licensee to evaluate the Software, for a period of seven (7) days. Any use of the Software after the expiry of the evaluation period is not permitted unless the applicable Fees are paid by Licensee. Evaluation version is provided free of any fee for evaluation purpose only; and the licence for evaluation version is exclusive to you and is non-transferable, non-sub licensable. Unless otherwise agreed by Licensor in writing, limited support and maintenance services will be provided for non-production implementation only during the evaluation period. Except these conditions, all other terms and conditions of this EULA are applicable to evaluation version also.
4.4 Protection and Security: Licensee agrees to use reasonable endeavours to safeguard the Software and any licence key(s) and ensure that no unauthorised person has access to them and that there is no unauthorised copying or distribution of the Software or the licence key(s).
5. UPDATES, DISCONTINUANCE/MODIFICATION OF PRODUCT
Konnect eMail may, on release of Updates, require the Licensee to download and install Updates to the Software to effectively use the Software and retain access to support and maintenance. Updates are only available to Licensee which has elected for, and has paid all applicable fees to retain the Support and Maintenance option under the Subscription. All terms and conditions of this EULA are applicable to such Updates.
Konnect eMail reserves the right to discontinue/modify Konnect eMail or Software or any component of Konnect eMail/Software at any time without notice to you. However, the Konnect eMail shall continue to provide the required materials and/or support services required by you for using the existing Konnect eMail, as agreed to herein, until the period for which payment has been made.
Licensee agrees that it will comply and procure each User to comply with the terms and conditions of this EULA. Licensee shall ensure each User is uniquely authenticated and accesses the Software via Windows authentication or claims based authentication.
7. SUPPORT SERVICES
7.1 Konnect eMail may at its discretion, provide you with support services/materials related to the Konnect eMail (“Support Services”) which also includes general information in relation to the installation and use of the Software, subject to your installation of all Updates indicated by Konnect eMail and payment of agreed fees/subscription. You can seek support services by raising a Support Ticket via ticketing system on the Konnect eMail website. The service will be available between 9.00 am to 5.00 pm AEST excluding Saturdays, Sundays and any public holidays in Victoria, Australia. Konnect eMail will respond to the Support Ticket by e-mail, web conference/chat or telephone. Konnect eMail may also extend the required support and maintenance in case of urgent necessity, subject to payment of additional fees.
7.2 Any supplemental Software provided to you as part of the Support Services shall be considered part of the Konnect eMail and subject to the terms and conditions of this EULA. Konnect eMail makes no representation that such Services and Materials are appropriate or available for use in any particular location. To the extent you choose to access such Services or Materials, you do so at your own risk and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. Konnect eMail reserve the right to change, suspend, remove, or disable access to any Services at any time by providing a notice. In no event will Konnect eMail be liable for the removal of or disabling of access to any such Services.
7.3 Licensee agrees to provide promptly to Konnect eMail any information available to assist Konnect eMail in identifying a technical error (such as any error diagnostic messages) when providing support and maintenance services.
7.4. Konnect eMail may limit your usage or terminate your access to any or all of the support services available, if your use of the support services is found to be excessive as determined by Konnect eMail.
7.5. Konnect eMail is under no obligation to provide Support and Maintenance to Licensee which has not elected for the Support and Maintenance option under the Subscription.
7.6. Exclusions: Support services and maintenance provided by Konnect eMail do not include fixing/rectification of errors, defects or problems caused or contributed to by:
(a) negligence, improper or unauthorised use of the Software by the Licensee;
(b) any modifications or alterations of the Software by any person other than an employee of Konnect eMail or those approved by Konnect eMail;
(c) causes external to the Software such as, but not limited to, power failure, electric power surges or a force majeure event;
(d) any failure by Licensee to download and install Updates made available by Konnect eMail ;
(e) any failure by Licensee to comply with any reasonable guidelines or instructions or the Documentation provided by Konnect eMail;
(f) any fault, defect, omission or error in any data, Software or equipment not supplied/ approved/ recommended by Konnect eMail, but used by the Licensee;
(g) any failure arising out of any network (including the internet) or communications; or
(h) use of the Software in a manner or for a purpose in breach of this EULA or not reasonably contemplated by this EULA.
Konnect eMail reserves the right to charge Licensee additional fees for the rectification of any errors, defects or problems caused or contributed to by any of the reasons listed above.
7.7. Term: Konnect eMail shall extend the support services depending upon Subscription of the Licensee. Support services may not be extended unless the Support and Maintenance is renewed under the subscription and all applicable Fees are paid by Licensee.
7.8. Training: Konnect eMail does not provide any training for the use of its Software unless requested by the Licensee and entering into a separate training agreement.
8. FEES AND PAYMENT
8.1. Fees: Licensee under any of the subscriptions agrees and acknowledges that it is liable for payment of subscription fees for the minimum period as detailed on the Order Form. Licensee agrees that any Licence fee/ Subscription fee paid for use of Konnect eMail Outlook Add-In, and/or Konnect eMail SharePoint Add-In Software under this EULA, is non-refundable.
8.2. Taxes: All Licence fees and other fees prescribed under this EULA are exclusive of all applicable taxes like GST, VAT or any other tax which the Licensee agrees to pay/reimburse Konnect eMail.
9. TERMINATION OF EULA
The licence is effective as long as a Subscription continues for the term of the relevant subscription unless terminated by you or Konnect eMail. Without prejudice to any other rights, Konnect eMail may terminate this EULA with written notice to the Licensee if it fails to comply with the terms and conditions of this licence including payment of any fees which are due and payable under this EULA within 30 days, or becomes bankrupt or insolvent, or Konnect eMail is required to do so by law.
Licensee may terminate this EULA at any time by giving written notice to Konnect eMail and complying with the following conditions. Upon termination of the licence, you shall
(a) immediately pay any outstanding amounts owed to Konnect eMail under this EULA and with respect to any Licensee under a Subscription, all remaining subscription fee instalments over the subscription period detailed on the Order Form;
(b) cease use of the Konnect eMail services, and
(c) destroy all copies, full or partial, of the Konnect eMail including any Confidential and Proprietary Information in possession of the Licensee, as informed by Konnect eMail.
10. PRODUCT WARRANTY/ DISCLAIMER
10.1 Konnect eMail service is offered on an “AS IS” basis and no warranty, either express or implied, is given. Konnect eMail expressly disclaim and exclude, to the maximum extent permitted by applicable law, all warranties, conditions undertakings or representations of any kind, whether statutory, express or implied, including, but not limited to, implied warranties of merchantability, uninterrupted use, satisfactory quality, fitness for a particular purpose, that it will operate in combination with other Software or any particular equipment or system, that it will provide any function other than set out in the Documentation, and non-infringement. Konnect eMail however gives the guarantees as required by the ACL (Australian Consumer Law) (“Consumer Guarantees”) with respect to the Software and any Support and Maintenance supplied by it.
10.2 Konnect eMail warrants that the Software will perform in accordance with the “specifications” detailed in the Documentation provided by it. Konnect eMail warrants that the Software will be free from defects in materials and workmanship under normal use for a period of 30 days from the date that the Software is delivered to Licensee (“Warranty Period”). Konnect eMail does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or other items contained within the Konnect eMail Software. Konnect eMail makes no warranties respecting any harm that may be caused by the transmission of a computer virus, worm, time bomb, logic bomb, or other such computer programme.
10.3 This product warranty does not apply if any errors, defects or problems are caused or contributed to by the causes outlined in clause 7.6. This product warranty is the sole remedy for any Licensee which is not a “consumer” under the ACL.
10.4 ACL Notice applicable to Licensee which is a “Consumer” under ACL:
OUR PRODUCTS COME WITH WARRANTIES THAT CANNOT BE EXCLUDED UNDER AUSTRALIAN CONSUMER LAWS. 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.
10.5. Claim Procedure: Licensee can submit a claim during the warranty period, if it believes that the Software does not operate in accordance with the “specifications” detailed in the Documentation. Licensee must notify Konnect eMail in writing and send it to contact details provided in this EULA. Konnect eMail will replace the Software at no charge to the Licensee.
10.6. You are required to use a high speed internet connection. The Company disclaims any responsibility on account of slow or no internet connection.
11. LIMITATION OF LIABILITY
In no event shall Konnect eMail be liable for personal injury, or any incidental, special, indirect or consequential damages whatsoever, including, without limitation, damages for loss of profits, loss of data, business interruption or any other commercial damages or losses, arising out of or related to your use or inability to use Konnect eMail services, however caused, regardless of the theory of liability (contract, tort or otherwise) and even if The Company has been advised of the possibility of such damages. Some jurisdictions do not allow the limitation of liability for personal injury, or of incidental or consequential damages; so this limitation may not apply to you. In no event shall Konnect eMail’s liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) is limited, at the option of Konnect eMail, to the repair or replacement of the goods, the re-supply of those services or the payment of the cost of re-supplying those services; and is limited not to exceed the amount of monthly fee paid by you to Konnect eMail for the last three months under this EULA.
Except as otherwise required by applicable laws, neither party nor either party’s agents, employees (the “Recipient”) shall use or disclose to any person or entity any Confidential Information (as defined below) of the other party (the “Discloser”) (whether in written, oral, electronic or other form), which is obtained from the Discloser or otherwise prepared or discovered in the performance of this Agreement. “Confidential Information” means any and all information designated by the Discloser as confidential, all information or data concerning or related to the Discloser’s products (Software, Documentation), processes, or business operations, including any information of the foregoing nature received from the Discloser related to the Discloser’s customers or clients, and any other information which, if not otherwise described above, is of such a nature that a reasonable person would believe it to be confidential or proprietary. The provisions of this Section relating to use and disclosure shall not apply to any information that: (i) is rightfully known to the Recipient prior to disclosure by the Discloser, (ii) is rightfully obtained by the Recipient from any third party without restrictions on disclosure, (iii) is or becomes available to the public without restrictions, or (iv) is disclosed by the Recipient with the prior written approval of the Discloser. Further, either party may disclose confidential information of the other party as required by governmental or judicial order, provided such party gives the other party prompt written notice prior to such disclosure. The obligations set forth in this Section shall survive any expiration or termination of this Agreement.
13. GENERAL PROVISIONS
13.1 Entire Agreement: This agreement (EULA) embodies the entire understanding of the parties and shall supersede all previous communications, representations, or undertakings, either verbal or written, between the parties relating to the subject matter hereof.
13.2 Severability: If any part of this Agreement is found void and unenforceable, it will not affect the validity of the remaining parts of the Agreement, which shall remain valid and enforceable according to the terms. This Agreement shall not prejudice the statutory rights of any party dealing as a consumer. Updates/ add-ons may be licensed to you by the Company with additional or different terms.
13.3 Amendment: Konnect eMail reserves the right to amend the terms of this EULA, and all amendments will be effective when notified to the Licensee. Subject thereto, this Agreement may be amended only by a written agreement embodying the full terms of the amendment signed by authorized representatives of both parties.
13.4 Waiver: The failure of Konnect eMail to exercise or enforce any right or provision of these Terms and Conditions of EULA does not constitute a waiver of such right or provision, which will still be available to Konnect eMail.
13.5 Export Restrictions: You agree that Konnect eMail products will not be transferred or exported into any country or used in any manner prohibited by the Export Control Laws, restrictions or regulations (collectively “Export Laws”). All rights to use Konnect eMail services are granted on condition that such rights are forfeited if you fail to comply with the terms of this EULA.
13.6 Interpretation: The headings of sections contained herein are inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this EULA.
13.7 Assignment: The Licensee may not assign, sub-contract or otherwise transfer any of the Licensee’s rights or obligations under this EULA unless Konnect eMail has given its prior written consent.
13.8 Novation: Konnect eMail may by written notice to the Licensee transfer its rights and obligations under this EULA pursuant to a novation agreement in favour of a transferee who accepts all obligations of Konnect eMail under this EULA. The Licensee must do all things necessary to give effect to such novation, including the execution of relevant documents.
13.9 Vienna Convention: The United Nations Convention on Contracts for the International Sale of Goods will not apply in any way to the Software or this EULA.
13.10 Governing Law: This Agreement and your use of the Konnect eMail product/service is governed by the laws of Victoria, Australia, excluding its conflict of law rules and may also be subject to other local, state, national, or international laws.
13.11 Dispute Resolution: In case any dispute or difference arises between the Parties as to any term and/or conditions of this EULA, the Parties shall promptly meet and attempt in good faith to resolve such dispute or difference by amicable negotiation; provided that if the same is not so resolved within 30 days, the matter shall be referred to and finally resolved by arbitration administered by the Australian Dispute Centre (ADC). The arbitration shall be conducted in Melbourne, Victoria, Australia in accordance with the ADC Rules for Arbitration operating at the time the dispute is referred to ADC (the Rules). The terms of the Rules are hereby deemed incorporated into this agreement. This clause shall survive termination of this agreement.