End User Licence Agreement and Terms and Conditions
A. Eclosure (Australia) Pty Ltd (ACN 168 864 435) (the Licensor) has agreed to provide to you (the Licensee, being a natural person or persons in the form of a partnership, and/or any other legal entity) a non-exclusive, non-transferrable and revocable licence to use the Probate Assist Program (the Licence).
B. The Licence encompasses the current version of the Probate Assist Program, and, subject to the terms and conditions set forth herein, any updates, patches, other plug-ins or versions the Probate Assist Program that the Licensor may release from time to time (together, Probate Assist).
C. The Licensee has agreed to purchase the Licence on the terms and conditions set forth herein (the EULA). In particular, by using Probate Assist or any aspect or part thereof, the Licensee agrees to be bound by the EULA. In the event that the Licensee does not agree with any part of the EULA, he, she or it may use Probate Assist.
1.1. The Licensor hereby agrees to grant the Licensee a non-exclusive licence to use Probate Assist.
1.3. This Licence permits the Licensee to use Probate Assist on as many devices as he, she or it wishes. However, the use of Probate Assist must in each case be by the Licensee or for his, her or its own benefit. The Licensee must not allow, permit or encourage any third party to use Probate Assist for that third party’s benefit, unless the third party has entered into a separate EULA with the Licensor. The reference to a “third party” does not include the Licensee’s clients, or the person in relation to whose probate application the Licensee is using Probate Assist.
1.4. The Licence commences on the date of acceptance of this EULA (which acceptance is communicated by the acceptance by the Licensee of this EULA and the use of Probate Assist) and ends upon termination.
1.5. The Licence granted by this clause (and this EULA) is non-exclusive, non-transferrable (either by sublicense, transfer, assignment or otherwise) and may be terminated by the Licensor in the circumstances set forth herein.
2.1. From the expiry of any free trial, the Licensee must pay to the Licensor in advance a monthly or annual fee as applicable, as agreed between the Licensor and the Licensee from time to time, for the use of Probate Assist (the Licence Fee).
2.2. The Licence Fee is to be paid in advance and not in arrears, unless otherwise agreed between the Licensor and the Licensee from time to time.
2.3. The Licence Fee does not include payment for the eClosure Money service, which carries a fee on a per use basis, the amount of which is subject to any agreement between the Licensor and Licensee from time to time or, in the absence of any such agreement, is referable to the price for the eClosure Money service as advertised on the website of the Licensor, www.eclosure.com.au, at the time of the purchase or use of the eClosure Money service.
2.4. The Licence Fee is subject to any Goods and Services Tax (or other value-added tax), which must also be paid by the Licensee to the Licensor in accordance with the applicable taxation legislation. The Licence Fee may be recorded in any agreement between the Licensee and the Licensor either inclusive or exclusive of Goods and Services Tax.
2.5. The Licence Fee (and any Goods and Services Tax or other value-added tax) is payable by the Licensee to the Licensor in such amount, in such manner and by such method as the Licensor may from time to time direct of as agreed between the Licensee and the Licensor from time to time. In particular, subject to any agreement between the Licensee and the Licensor, the Licensee may authorisee the Licensor to debit from his, her or its nominated debit or credit account the amount of the Licence Fee on the due date for payment.
2.6. The Licensor may increase the Licence Fee for any future monthly or annual period (as applicable) at any time in its absolute discretion upon the giving of 30 days’ notice, subject to the terms of any agreement between the Licensor and the Licensee from time to time.
2.7. The Licence Fee is payable by the Licensee whether or not a tax invoice/ receipt has first been issued by the Licensor in respect of the Licence Fee. However, the Licensor will issue to the Licensee a tax invoice/ receipt for each payment of the License Fee within a reasonable time of the due date for such payment.
2.8. In the event that the Licensee and the Licensor agree on a method of payment other than direct debit and the Licensor issues a tax invoice to the Licensee for the payment of the License Fee, payment of the License Fee will be payable within 7 days from the date of any tax invoice.
3. UPDATES AND SUPPORT
3.1. The Licence granted to the Licensee by this EULA includes all updates, patches or other plug-ins to Probate Assist, unless otherwise expressly notified by the Licensor, which may be released by the Licensor from time to time. The Licensor undertakes to inform the Licensee of any update, patch, or other plug-in a reasonable time after its release and the Licensee hereby authorises the Licensor to contact him, her or it for that purpose. Any such update is subject to the terms and conditions contained in this EULA.
3.2. Payment of the Licence Fee by the Licensee, and the grant of the Licence pursuant to this EULA, includes the provision to the Licensee of reasonable technical support in a form decided by the Licensor from time to time in its absolute discretion. Any such technical support is subject to the terms and conditions herein or as otherwise agreed between the Licensor and the Licensee.
3.3. The Licensor will use its best endeavours to correct within a reasonable time any error, defect or problematic functionality experienced by the Licensee in his, her or its use of the current version of Probate Assist.
3.4. In order to assist the Licensor in providing the reasonable technical support referred to above, the Licensee must clearly communicate the nature of the problem to the Licensor and provide the Licensor with as much evidence of error, defect or problematic functionality as possible including, for example, screen dumps where appropriate, so that the Licensor can use its best endeavours to correct the problem.
4. INTELLECTUAL PROPERTY AND OTHER RIGHTS
4.1. Notwithstanding any other provision of this EULA, the copyright and other intellectual property in Probate Assist remains the property of the Licensor. The Licensee acquires no interest or right in Probate Assist otherwise than as expressly set forth herein.
4.2. The Licensee acquires no interest or right in, or to use, any trademark owned by the Licensor or Probate Assist by entry into this EULA.
4.3. The Licensor hereby reserves its exclusive right to grant licences to third parties to download, install and use Probate Assist.
4.4. The Licensee hereby permits the Licensor to implement and use technical measures to remotely monitor the Licensee’s use of Probate Assist to ensure there is no unauthorised or unlicensed use of Probate Assist and no breach of this EULA.
4.5. The Licensee must not alter, modify, adapt or translate Probate Assist in any way whatsoever, nor permit any part of Probate Assist to become incorporated into any other software program. The Licensee must not reverse-engineer, decompile or disassemble Probate Assist except to the extent to which such reverse-engineering, decompiling or disassembling is permitted by law.
5.1. The Licensee acknowledges that:
5.1.1. Probate Assist has not be guaranteed by the Licensor to be error free, may contain errors and that any errors in Probate Assist are not a breach of this EULA;
5.1.2. Probate Assist has not been developed to meet the Licensee’s individual requirements, unless as agreed between the Licensor and the Licensee from time to time;
5.1.3. it is the Licensee’s responsibility to ensure that Probate Assist meets his, her or its requirements; and
5.1.4. for the purposes clause 5.1.3 above, he, she or it has been provided with a reasonable period (including the duration of any trial) to examine Probate Assist before being required to pay the Licence Fee in accordance with the terms of this EULA and is satisfied as a result of that examination that Probate Assist is suitable for that purpose.
5.2. In the event that the Licensor is unable within a reasonable time to correct an error, defect or problematic functionality in Probate Assist in accordance with clause 3.3 above, the Licensor may in its absolute discretion refund the whole or part of the Licensee Fee paid by the Licensee.
5.3. The Licensee acknowledges and agrees that, subject to clause 5.2 above and to the fullest extent permitted by law, the Licensor is not to be liable for any other loss or damage suffered by the Licensee as a result of its using Probate Assist, whether such loss or damage is direct or indirect, consequential or otherwise whatsoever, and any such liability otherwise subsisting is hereby expressly negatived.
5.4. Our goods come with guarantees that cannot be excluded under the Australian Consumer Law.
5.5. Subject to clause 5.4 above, all warranties other than those expressly set forth herein are hereby negatived to the fullest extent permitted by law.
5.6. To the extent that Probate Assist contains code that was not developed by the Licensor, the Licensor warrants that it holds the appropriate licences to use that code and is authorised to sublicence it for use by the Licensee in accordance with this EULA.
7.1. In the event that the Licensee does not agree to pay the Licence Fee, does not agree to pay any increase in the Licence Fee that may be imposed by the Licensor from time to time, or the method of payment provided by the Licensee to the Licensor is dishonoured, and such failure to pay is not remedied within 7 days to the satisfaction of the Licensor, the Licensor may terminate the Licence in its absolute discretion.
7.2. In the event the Licensee offers to remedy any failure to pay outside of the 7 day period of grace provided for by clause 7.1, the Licensor will consider, in its absolute discretion, whether or not the offered remedy is adequate and ought result in the continuation of the Licence notwithstanding the provisions of clause 7.1.
7.3. The Licensor may also, in its absolute discretion, terminate the Licence without prior notice in the event that the Licensee breaches any other term or condition in this EULA.
7.4. The Licensor may also terminate the Licence in the event that it is placed into external administration, or passes a resolution for its winding up.
7.5. The Licensee may terminate the Licence upon the giving of 30 days’ written notice.
7.6. Subject to clause 7.7 below, in the event that the Licence is terminated, the Licensee may not at any time in the future use Probate Assist unless he, she or it has:
7.6.1. paid to the Licensor any outstanding Licence Fee that is due and owing; and
7.6.2. remedied, or offered to remedy, to the satisfaction of the Licensor, any other breach of this EULA.
7.7. The termination of this Licence does not prevent the Licensee from continuing to use Probate Assist to read (but not edit, add to or otherwise modify) existing data on the Licensee’s profile on Probate Assist.
7.8. There shall be no refund of any part of the Licence Fee by reason of any termination of the Licence.
7.9. Any termination of the Licence or EULA will not affect accrued rights of the parties, nor will it affect any provision of this EULA which is by its terms intended to come into force upon, or in consequence, of such termination.
8.1. This EULA is subject to the laws of New South Wales. In the event of any dispute, the Licensor and the Licensee hereby submit to the exclusive jurisdiction of the Courts of New South Wales.
8.2. This EULA constitutes the entire agreement between the Licensor and the Licensee and supersedes all previous or contemporaneous oral or written communications with respect to Probate Assist or the subject-matter of this EULA.
8.3. To the fullest extent permitted by law, the express terms of this EULA supersede and exclude all warranties, conditions, terms, undertakings or obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise.
8.4. The Licensee expressly acknowledges and warrants that it has not entered into this EULA in reliance upon any representation made by the Licensor or any of its employees, agents or directors, and has only relied upon the terms of this EULA and his, her or its own inquiries in deciding to enter into this EULA and download, install and use Probate Assist.
8.5. No delay by the Licensor in enforcing or exercising any of its rights under this EULA will prejudice or restrict the rights of the Licensor to enforce or exercise those rights and shall not be interpreted to be a waiver of those rights.
8.6. In this EULA:
8.6.1. any reference to legislation is a reference to that legislation as modified from time to time; and
8.6.2. any reference to a party includes a reference to its successors in title and permitted assigns; and
8.6.3. headings are for reference purposes only and are not to be used in the interpretation of this EULA.
8.7. Notwithstanding that the whole or any part of this EULA may prove to be illegal or unenforceable, the remaining provisions of the EULA shall remain in full force and effect.
8.8. The terms of this EULA may be modified by the Licensor from time to time. Any such modification will only occur contemporaneously with the release of an update, patch or plug-in to, or the release of a mobile verison of, Probate Assist, at which time it will be notified to, and become reviewable by, the Licensee. The Licensee’s continued use of Probate Assist following such modification, and the continued payment of the Licence Fee, will constitute sufficient acceptance of any such modification.