Linrock Software End User License Agreement

Version 1.06, 8 December 2017

THIS SOFTWARE END USER LICENSE AGREEMENT ("EULA") IS A LEGAL AGREEMENT BETWEEN LICENSEE (EITHER AN INDIVIDUAL OR, IF PURCHASED OR ACQUIRED BY OR FOR AN ENTITY, AN ENTITY) AND LINROCK. IT PROVIDES A LICENSE TO USE THIS SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. YOU INDICATE YOUR AGREEMENT TO THESE TERMS BY EITHER CLICKING “I AGREE” WHERE INDICATED PRIOR TO DOWNLOADING AND INSTALLING THE SOFTWARE OR OTHERWISE BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE. IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING TERMS, DO NOT DOWNLOAD OR INSTALL THE SOFTWARE, DISCONTINUE ITS USE IMMEDIATELY AND DESTROY ALL COPIES IN YOUR POSSESSION. YOUR AGREEMENT TO THESE TERMS BINDS ALL OF THE LICENSEE, EACH NAMED USER AND ANY OTHER PERSON WHO USES THE SOFTWARE WITH THE EXPRESS OR IMPLIED AUTHORITY OF THE LICENSEE.

1. Definitions

Linrock means Linrock Software Pty Ltd (ABN 49 160 046 686) of Sydney, Australia.

Authorised Use means use of up to the defined number of copies or instances of the Product that may be used by Named Users assigned by the Licensee, as designated in the Quote/Receipt/Invoice issued by Linrock or any reseller.

EULA means this End User License Agreement.

Free License means the License which grants the right to use the Limited Product by or through the Licensee.

License means, as the context requires, the Free License, the Term License or the Perpetual License.

Licensee means the individual or entity (inclusive of affiliates and subsidiaries) which is licensed to use the Product under the terms and conditions of this EULA.

License Fee means any fee payable by the Licensee to use or be authorised to use the Product, or to download and install the Software.

License Key means a serial number issued to Licensee by Linrock to activate and use the Software.

License Period means:

(a) In respect of a Perpetual License, the period commencing on the date the Licensee pays the License Fee and ending on the date which this EULA terminates;

(b) In respect of a Term License, the period determined by reference to clause 2.3.4;

(c) In respect of a Free License, the period commencing on the date that the Licensee downloads and installs the Software and ending on the date that the Free License is revoked or terminated by Linrock in accordance with this agreement.

Limited Product means the Product as modified by Linrock to remove or limit such functionality or additional services as determined by Linrock.

Maintenance Plan is the right to technical support and Software updates and upgrades during the Licence Period as set out in clause 9.

Named User is an individual nominated by the Licensee who is authorised to use the Product, regardless of whether that person is an employee, contractor, subcontractor, vendor, partner or customer of the Licensee.

Perpetual Licence means the Licence which grants the right to use the Product by or through the Licensee or its Named Users for an indefinite period.

Product means the Linrock product accompanying this EULA, including Software and any user manuals, guides, printed materials, on-line or electronic documentation and any updates or enhancements to the Product issued by Linrock and authorised under this EULA.

Product Outputs means the materials created by the use of the Product including but not limited to HTML files.

Software means the executable code of the Product, including any additional tools, libraries, source files, header files, templates, data files, any updates or error corrections provided by Linrock.

Term License means the License which grants the right to use the Product by or through the Licensee or its Named Users for the term of the License.

Trial Period means the period of up to 7 days during which the Licensee may use the Software without payment of a License Fee in accordance with clause 2.2.2 or clause 2.3.2. For the avoidance of doubt, the Trial Period is not included in the Licence Period.

2. Grant of License

2.1 Determination of License.Subject to Linrock making each form of License available from time to time (as determined by Linrock in its absolute discretion), the Licensee may select from the available options of Perpetual License, Term License and Free License. The terms set out in clauses 2.2 through 2.5 apply to each form of License.

2.2 Perpetual License.

2.2.1 Application. This clause 2.2 applies where the Licensee has selected a Perpetual License.

2.2.2 Trial Period. Licensee may download and use the Software for free for 7 days after installation. During the Trial Period, Linrock grants Licensee a limited, non-exclusive, non-transferable, non-renewable license to use the Product for evaluation purposes only and not for any commercial use. At Linrock’s discretion, Linrock may provide limited support through email or discussion forums at Linrock’s web site. The evaluation copy of the Product contains a feature that will automatically disable the Product at the end of Trial Period. Linrock will have no liability to Licensee if this feature disables the Product or any Product Output, whether before or after the end of the Trial Period.

2.2.3 License After Trial Period . The Product is licensed, not sold. Licensee may at any time apply for a License by providing the details required by Linrock in its Licence application and payment of the Licence Fee.Upon Linrock’s acceptance of the Licence application and receipt of the License Fee, Linrock grants Licensee a limited, non-exclusive, non-transferable license during the License Period to download and install the Software and access and use the Product on a Named User basis, and:

(a) Linrock will provide Licensee with a License Key which may be issued to its Named Users, provided that the total number of Named Users may not exceed the total number licensed by Licensee as shown in the official receipt provided by Linrock;

(b)Licensee has the further right to receive, download and install any updates to the Software issued during the 12 months after commencement of the License Period in accordance with clause 9.1;

(d) Licensee may freely create and redistribute an unlimited number of Product Outputs.

2.3 Term License

2.3.1 Application. This clause 2.3 applies where the Licensee has selected a Term License.

2.3.2 Trial Period. Licensee may download and use the Software for free for 7 days after installation. During the Trial Period, Linrock grants Licensee a limited, non-exclusive, non-transferable, non-renewable license to use the Product for evaluation purposes only and not for any commercial use. At Linrock’s discretion, Linrock may provide limited support through email or discussion forums at Linrock’s web site. The evaluation copy of the Product contains a feature that will automatically disable the Product at the end of Trial Period. Linrock will have no liability to Licensee if this feature disables the Product or any Product Output, whether before or after the end of the Trial Period.

2.3.3 License After Trial Period . The Product is licensed, not sold. Licensee may at any time apply for a License by providing the details required by Linrock in its Licence application and payment of the Licence Fee.Upon Linrock’s acceptance of the Licence application and receipt of the License Fee, Linrock grants Licensee a limited, non-exclusive, non-transferable, renewable license during the License Period to download and install the Software and access and use the Product on a Named User basis, and:

(b)Licensee has the further right to receive, download and install any updates to the Software issued during the License Period in accordance with clause 9.2;

(d) Licensee may freely create and redistribute an unlimited number of Product Outputs.

2.3.4 License Period – Automatic Renewal . Licensee may elect for its Term License to be granted as a month-to-month subscription or as an annual subscription.

(a) Where Licensee elects a month-to-month subscription, the License Period shall commence on the date that Linrock has accepted the License application and received the License Fee applicable to the first month and shall end on the date which is one month after that commencement date. Unless Licensee gives notice of cancellation to Linrock at least three days prior to the end of the current License Period, at the end of each License Period the License shall be automatically renewed for a further one month License Period which shall commence on the day immediately following the end of the preceding License Period and end on the date which falls one month thereafter, and Licensee must pay to Linrock the License Fee applicable to that License Period in accordance with clause 3.2.

(b) Where Licensee elects for an annual subscription, the Term License shall commence on the date that Linrock has accepted the License application and received the License Fee applicable to the first year and shall end on the date which is one year after that commencement date. Unless Licensee gives notice of cancellation to Linrock at least three days prior to the end of the current License Period, at the end of each License Period the License shall be automatically renewed for a further twelve month License Period which shall commence on the day immediately following the end of the preceding License Period and end on the date which falls one year thereafter, and Licensee must pay to Linrock the License Fee applicable to that License Period in accordance with clause 3.2.

2.4 Free License

2.4.1 Application. This clause 2.4 applies where the Licensee has selected a Free License.

2.4.2 Acknowledgement of Limited Product. Licensee acknowledges that the Free License entitles the Licensee only to use the Limited Product and Linrock has no obligation to provide any product support to the Limited Product.

2.4.3 Acknowledgement of Marketing. Licensee acknowledges that Linrock may use its License application information, including any personal information, for the purposes of marketing and promotion of its products and services, and may provide Licensee’s information, including personal information, to third parties for use by such third parties for marketing and promotional purposes. Linrock may receive remuneration from such third parties for provision of the Licensee’s information.

2.4.4 Free License. Licensee may download, install and use the Software for free for such period as Linrock, in its discretion, permits. During the term of the Free License, Linrock grants Licensee a limited, non-exclusive, non-transferable, non-renewable license to use the Limited Product. At Linrock’s discretion, Linrock may provide limited support through email or discussion forums at Linrock web site. The Limited Product is licensed, not sold. Upon Linrock’s acceptance of the Licence application, Linrock grants Licensee a limited, non-exclusive, non-transferable license during the License Period to download and install the Software and access and use the Product on a Named User basis, and:

(a) Linrock will provide Licensee with one License Key to be used solely by the Named User nominated by Licensee;

(b)Licensee may receive, download and install any updates to the Software issued and authorised by Linrock for use as part of the Free License during the License Period; and

2.4.5 No License Fee. Linrock shall not charge a License Fee in respect of the Free License.

2.5 Named Users. Each Named User is authorised by Licensee to use the Product through the use of the License Key, regardless of whether or not the individual is using the Product at any given time. Via the License Key, the Named User may install the Software and use the Product on up to two devices (including operating systems and virtual machine environments).

3. License Fees

3.1A Licensee holding a Perpetual License shall pay the License Fee applicable to a Perpetual License at the time of application for the License, which may be determined having regard to the number of Named Users nominated by Licensee.

3.2A Licensee holding a Term License must provide Linrock with its credit card details or other payment details acceptable to Linrock. Linrock will charge to that credit card:

(a) each month, the monthly License Fee (plus any applicable taxes) applicable to a month-to-month Term License; and

(b)each year, the annual License Fee (plus any applicable taxes) applicable to an annual Term License.

3.3Once a License Fee or any part of a License Fee has been charged by Linrock, that charge is final and no refund shall be available.

3.4Linrock may change its License Fees from time to time, but:

(a)Linrock must advise Licensee of any increased License Fee which will apply to a subsequent License Period at least 5 days prior to the commencement of that License Period; and

(b) Linrock may not apply any increased License Fee to a current License Period.

4.License Restrictions

Licensee shall undertake any necessary steps to protect the License Key and Software against unauthorised use, including unauthorised use by Named Persons.

Licensee may not alter, merge, modify, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form.

Licensee may not sell, rent, lease, sub license, transfer, resell for profit or otherwise distribute the Product or any part thereof, except to the extent required to permit use of the Product via the Software by Named Users.

Licensee may not modify the Product or create derivative works based upon the Product.

Licensee may not remove or obscure any copyright and trademark notices relating to the Product.

5. Ownership and Intellectual Property Rights

This EULA gives Licensee limited rights to use the Software. Linrock retains all rights, title and interest in and to the Product and the Software and all copies thereof, including copyrights, patents, trade secrets rights, trademarks and other intellectual property rights.

All rights not specifically granted in this EULA, including International Copyrights, are reserved by Linrock. The structure, organisation and code of the Software are valuable trade secrets and confidential information of Linrock.

6. Limitation of Liability

Linrock’s cumulative liability to Licensee or any other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to (i) this EULA; (ii) use or misuse of the Product during the License Period; (iii) downloading or installation of the Software during the License Period; or (iv) any failure of the Software to be fully downloaded or properly installed during the License Period (whether by reason of user error or any failure of the Software or otherwise) shall not exceed the License Fee paid to Linrock during the period of 12 months prior to the incurrence of Licensee’s loss or damage. For the avoidance of doubt, except as determined by a court of competent jurisdiction, in respect of: (i) a the License Period for a Free License; (ii) the Trial Period; or (iii) any period outside of the License Period, Linrock shall have no liability to Licensee for any loss or damages resulting from any claims, demands or actions arising out of or relating to (i) this EULA; (ii) use or misuse of the Product; (iii) downloading or installation of the Software; or (iv) any failure of the Software to be fully downloaded or properly installed (whether by reason of user error or any failure of the Software or otherwise) and if, in any event, a court of competent jurisdiction determines that Linrock is so liable, Linrock’s maximum cumulative liability for any loss or damage is $1.00.

Linrock shall be relieved of any and all obligations where the Software has been revised, changed, modified, or maintained by anyone other than Linrock.

In respect of any claim between the parties under or in connection with this EULA, the parties agree that to the maximum extent permitted by law, the operation of Part 4 of the Civil Liabilities Act 2002 (NSW) or of any laws having a similar effect in the Commonwealth and other states and territories of Australia with respect to proportionate liability, are excluded and have no application or effect.

7. Patent and Copyright Liability

Linrock represents and warrants that the Product shall not infringe or misappropriate any copyrights, patents, trade secret rights, trademarks and other intellectual property rights.

In the event the Product is found to infringe, Linrock will have the option, at its expense, to:

a) modify the Product to cause it to become non-infringing;

b) substitute the Product with other software reasonably suitable to Licensee, or

c) if none of the foregoing remedies are commercially feasible, at the sole discretion of Linrock, terminate the license for the infringing Product and refund any License Fees paid for the Product.

Linrock will have no liability for any claim of infringement based on:

a) code contained within the Software which was not included in the Software by Linrock;

b) use of a superseded or altered release of the Software, except for such alteration(s) or modification(s) which have been made by Linrock or under Linrock’s direction, if such infringement would have been avoided by the use of a current, unaltered release of the Software that Linrock provides to Licensee, or

c) the combination, operation, or use of any Software provided under this EULA with programs or data not provided by Linrock if such infringement would have been avoided by the use of the Software without such programs or data.

Notwithstanding any other matter in this EULA,Linrock shall not be liable to Licensee under this clause if:

(i) Licensee does not notify Linrock of the other person's claim or of infringement of copyright within seven days after becoming aware of the claim;

(ii) Linrock’s ability to defend the claim has been prejudiced by Licensee’s non-compliance with any of its obligations under this agreement;

(iii) Licensee does not give Linrock reasonable assistance in defending the claim;

(iv) the claim has arisen because of the use of the Software in combination with equipment, materials or computer programs not supplied or approved by Linrock; or

(v) Licensee does not permit Linrock to have control of the defence of the claim and all related settlement negotiations.

8. LIMITED WARRANTIES

THE PRODUCT IS PROVIDED ON AN "AS IS" BASIS. LINROCK MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITATION, LICENSEE ASSUMES SOLE RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE LICENSEE’S INTENDED RESULTS AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM THE PRODUCT. LINROCK MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES.

Without limiting the above, Linrock expressly excludes any warranty required or implied by law that the Product will perform substantially in accordance with specifications or otherwise as represented by Linrock after the period of 90 days commencing from the earlier of the commencement of the Trial Period and the commencement of the License Period.To the maximum extent permitted by law, unless expressly set out in this agreement, all other warranties are excluded.Any warranties provided by Linrock are subject to and dependent upon the Licensee fully complying with its obligations under this EULA.

Linrock warrants that it holds the proper rights allowing it to license the Product and is not currently aware of any actions that may affect its rights to do so.

Pursuant to section 64A of the Australian Consumer Law, this subclause applies in respect of any goods or services supplied under this EULA which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, provided that this subclause will not apply if the Licensee establishes that reliance on it would not be fair and reasonable. Liability for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by sections 51 to 53 of the Australian Consumer Law) is limited:

a) in the case of goods, to any one of the following as determined by Linrock:

(i) the replacement of the goods or the supply of equivalent goods;

(ii) the repair of the goods;

(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or

(iv) the payment of the cost of having the goods repaired; and

b) in the case of services, to any one of the following as determined by Linrock:

(i) the supplying of the services again; or

(ii) the payment of the cost of having the services supplied again.

9. Software Maintenance

9.1 Perpetual License

This clause 9.1 applies only in relation to a Perpetual License.

For a period of 12 months from the commencement of the License Period, Linrock will provide to Licensee Product updates and/or enhancements made generally available to customers from time to time, and online technical support to one Licensee-designated technical contact for the sole purpose of addressing technical issues relating to the use of the Product.

9.2 Term License

This clause 9.2 applies only in relation to a Term License.

During the License Period, Linrock will provide to Licensee Product updates and/or enhancements made generally available to customers from time to time, and online technical support to one Licensee designated technical contact for the sole purpose of addressing technical issues relating to the use of the Product.

9.3 Coverage and Continuity

The Maintenance Plan only covers issues or questions resulting directly out of the operation of the Software. Linrock will not provide Licensee with consultation, assistance, or advice under any other circumstances.

Linrock reserves the right at any time to cease the support of the Product and to alter prospectively the prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the Product.

10. Third Party Software and Service Providers

This Software is provided with some third party software that is used in the Product Outputs.

These are jQuery (https://jquery.org/license/), lightbox.js (http://lokeshdhakar.com/projects/lightbox2/) and CreateJS (http://www.createjs.com). These are subject to their own license agreements and acceptance of this EULA also means acceptance of the agreements associated with these software tools on the terms set out in the licence agreements in the attached links.

Linrock may use third party service providers to assist it in controlling and managing the use of and access to the Software and the Product, and managing the charging and receipt of License Fees.Such third parties may provide services directly to Licensee as a reseller. Linrock may provide Licensee’s personal details to such third party providers for this purpose and may receive Licensee’s personal information from the third party.Licensees should review Linrock’s Privacy Policy for further details on how Linrock may use their personal information.

11. Unauthorised Use

Linrock has the right to reasonably request up to once per calendar year, and upon request Licensee must provide at Licensee’s cost an unqualified certificate verifying Licensee’s compliance with this EULA executed by:

(a) if the Licensee is an individual, the Licensee;

(b) if the Licensee has an auditor, the Licensee’s auditor; or

12. Severability

If any provision hereof shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the legality, validity and enforceability of all other provisions of this Agreement shall not be affected.

13. Tax

Payments made by the Licensee under this EULA exclude any taxes or duties payable in respect of the goods or services supplied in the jurisdiction where the payment is made or received. To the extent that any such taxes or duties are payable by Linrock, the Licensee must pay to Linrock the amount of such taxes or duties in addition to the license fee under this EULA unless Licensee is exempt from paying such taxes or duties at the time such taxes or duties are levied or assessed. Linrock will provide the Licensee with documents requested by Licensee necessary to enable the Licensee to obtain a tax or duty refund or credit, including without limitation a tax invoice.

14. Governing Law

This agreement shall be construed in accordance with the laws of the Commonwealth of Australia, in the state of New South Wales.

15. Term

The term of this Agreement begins on the date that the Licensee or user agrees to these terms and will continue in full force and effect unless terminated in accordance with Clause 16.

16. Termination and Cancellation

This EULA shall terminate:

(a) where the Licensee enters a Trial Period but does not thereafter enter a License Period, at the end of the Trial Period;

(b) where the Licensee holds a Term License, at the end of the current License Period unless terminated earlier in accordance with this clause or the License Period is renewed or extended in accordance with clause 2.3.4;

(d) where the Licensee holds a Perpetual Licence, when terminated in accordance with this clause.

Without prejudice to any other rights, Linrock may terminate this EULA without prior notice to the Licensee if Linrock reasonably believes that Licensee has breached or failed to comply with the terms and conditions of this EULA. No failure to exercise a right of termination on the part of Linrock shall be deemed a waiver of Licensee’s breach or failure to comply.

Linrock may exercise its termination rights by:

(a) giving notice to Licensee by any means, including by email and notice on or within the Product; or

(b) ceasing to make the Product available to the Licensee.

The Licensee may terminate this EULA by:

(a) cancelling its License by contacting customer support at [email protected];

(b) giving written notice to Linrock; or

(c) for Licensees holding a Perpetual License or a Free License, permanently ceasing to use the Software and the Product.

The License granted by this EULA shall terminate immediately upon termination of the EULA.

Upon termination Licensee shall, and shall ensure that each Named User does, destroy all copies of the Product and all of its component parts or otherwise return or dispose of such material in the manner directed by Linrock.

All rights accrued by either party at termination shall continue after termination.

17. No Assignment or Amendment

Licensee may not amend this EULA without prior written consent of Linrock. Licensee may assign this EULA to succeeding parties in the case of a merger, acquisition or change of control so long as in doing so, Linrock is notified in writing within 90 days of the closure of such transaction. If Licensee merges into or with a direct competitor of Linrock, as determined in Linrock’s sole discretion, then this EULA will automatically terminate as of the effective date of such merger.

Linrock may assign or transfer its rights and obligation under this EULA without consent of Licensee.

Linrock may amend this EULA at any time by giving notice in writing to Licensee detailing the amendments, provided that any amendments will not be effective until 30 days after notice of the amendments has been provided to Licensee.

18. Entire Agreement

This Agreement contains the entire agreement between Linrock and Licensee related to the software and supersedes all prior agreements and understandings, whether oral or written. It may be amended only by a writing executed by both parties.