dunn&churchill End User License Agreement Diamond Binding Dunn & Churchill Pty Ltd IMPORTANT: THIS AGREEMENT (or "EULA") IS A LEGAL AGREEMENT BETWEEN THE PERSON, COMPANY, OR ORGANIZATION THAT HAS LICENSED THIS SOFTWARE ("YOU" OR "CUSTOMER" OR "LICENSEE") AND DUNN & CHURCHILL PTY LTD OF DULWICH, AUSTRALIA, ACN 125 069 329 ("DUNN & CHURCHILL"). BY INSTALLING AND USING THE SOFTWARE, LICENCEE ACCEPTS THE SOFTWARE AND AGREES TO THE TERMS OF THIS AGREEMENT. READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE SOFTWARE. BY INSTALLING AND/OR USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, OR DO NOT HAVE AUTHORITY TO BIND CUSTOMER TO THESE TERMS, THEN DO NOT INSTALL AND/OR USE THE SOFTWARE AND RETURN THE SOFTWARE TO YOUR PLACE OF PURCHASE FOR A FULL REFUND IN ACCORDANCE WITH ITS REFUND POLICIES. THIS EULA SHALL APPLY ONLY TO THE SOFTWARE SUPPLIED BY DUNN & CHURCHILL HEREWITH REGARDLESS OF WHETHER OTHER SOFTWARE IS REFERRED TO OR DESCRIBED HEREIN. 1. Definitions a) "Software" means only the Dunn & Churchill software programs, and corresponding documentation, associated media, printed materials, and online or electronic documentation. Any updates to such Software which you are entitled to receive and that has been provided to you by Dunn & Churchill shall also mean Software for purposes of this Agreement. b) "Personal Edition" means an edition of the Software licensed to you, so identified at the time of licensing and by the Licence File provided to you. c) "Professional Edition" means an edition of the Software licensed to you, so identified at the time of licensing and by the Licence File provided to you. d) "Enterprise Edition" means an edition of the Software licensed to you, so identified in a separate Enterprise License Agreement. e) "Diamond Binding Runtime" (the "Runtime") means the portion of the Software required in order for the End User Product to operate. f) "Output File" means an file generated by you using the Software, or a file containing the Runtime. g) "End User Product" means an Output File containing the Runtime, or reliant on the Runtime, or containing code or compiled code generated by the Software. Examples of End User Products include, and are not limited to, websites, software applications, source code and the like. h) "Licence File" means a file containing a machine readable summary of the Customer's license conditions, digitally signed by Dunn & Churchill. i) "Diamond Binding Attribution Policy" means the conditions and guidelines for providing attribution to the Software. This policy is available at (http://dunnchurchill.com). 2. License Grants The licenses granted in this section are subject to the terms and conditions set forth in this EULA. Dunn & Churchill reserves all rights not expressly granted. a) You may install and use the Software on a single computer; or install and store the Software on a storage device, such as a network server, used only to install the Software on your other computers over an internal network, provided you have a license for each separate computer on which the Software is installed and run. Except as otherwise specifically provided a license for the Software may not be shared, installed or used concurrently on different computers. b) You agree that Dunn & Churchill may audit your use of the Software for compliance with these terms at any time, upon reasonable notice. In the event that such audit reveals any use of the Software by you other than in full compliance with the terms of this Agreement, you shall reimburse Dunn & Churchill for all reasonable expenses related to such audit in addition to any other liabilities you may incur as a result of such non-compliance. c) Your license rights under this EULA are non-exclusive. d) Where the licensed Software is the Professional Edition, a. You may distribute the Diamond Binding Runtime along with your End User Product to other computers within your organisation, for use only within your organisation. e) Where the licensed Software is the Enterprise Edition there may be additional grants in the separate Enterprise License Agreement. 3. License Restrictions a) Other than as set forth in Section 2, you may not make or distribute copies of the Software, or electronically transfer the Software from one computer to another or over a network. b) You 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. c) Unless otherwise provided herein, you may not rent, lease, or sublicense the Software. d) Where the licensed software is the Professional Edition, you may permanently transfer all of your rights under this EULA only as part of a sale or transfer, provided you retain no copies, you transfer all of the Software (including all component parts, the media and printed materials, any upgrades, all platforms, this EULA, the serial numbers, and, if applicable, all other software products provided together with the Software), and the recipient agrees to the terms of this EULA. You may retain no copies of the Software. You may not sell or transfer any Software purchased under a volume discount. You may not sell or transfer any Personal Edition of the software. e) Unless otherwise provided herein, you may not modify the Software or create derivative works based upon the Software. f) If you are granted the right to distribute the Diamond Binding Runtime, you may only distribute the Runtime using the provided Runtime installer package or Runtime installer merge module. g) Where the licensed Software is the Personal Edition, a. You may not use the software for any commercial purpose, and b. If the End User Product produces results which are visible to other individuals (for example, in the case where the End User Product is a website) you must provide attribution to Dunn & Churchill Diamond Binding in a manner consistent with the Diamond Binding Attribution Policy. h) You may receive the Software in more than one medium but you shall only install or use one medium. Regardless of the number of media you receive, you may use only the medium that is appropriate for the server or computer on which the Software is to be installed. i) You may receive the Software in more than one platform but you shall only install or use one platform. j) You shall not use the Software to develop any product having the same primary function as the Software. k) In the event that you fail to comply with this EULA, Dunn & Churchill may terminate the license and you must destroy all copies of the Software (with all other rights of both parties and all other provisions of this EULA surviving any such termination). l) Where the licensed Software is the Enterprise Edition there may be additional restrictions in the separate Enterprise License Agreement. 4. Ownership The foregoing license gives you limited license to use the Software. Dunn & Churchill and its suppliers retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Software (as an independent work and as an underlying work serving as a basis for any application you may develop), and all copies thereof. All rights not specifically granted in this EULA, including Federal and International Copyrights, are reserved by Dunn & Churchill and its suppliers. 5. Limited Warranty and Disclaimer a) Except with respect to the Personal Edition of the Software, Dunn & Churchill warrants that, for a period of ninety (90) days from the date of delivery (as evidenced by a copy of your receipt): a. when used with a recommended hardware and software configuration, the Software will perform in substantial conformance with the documentation supplied with the Software; and b. the physical media on which the Software is furnished will be free from defects in materials and workmanship under normal use b) DUNN & CHURCHILL PROVIDES NO REMEDIES OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, FOR ANY SAMPLE CODE AND THE PERSONAL EDITION OF THE SOFTWARE. ANY SAMPLE CODE AND THE PERSONAL EDITION OF THE SOFTWARE ARE PROVIDED "AS IS". c) EXCEPT AS SET FORTH IN THE FOREGOING LIMITED WARRANTY WITH RESPECT TO SOFTWARE OTHER THAN ANY SAMPLE CODE AND PERSONAL EDITIONS, DUNN & CHURCHILL AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OF NON-INFRINGEMENT AND TITLE OR QUIET ENJOYMENT. DUNN & CHURCHILL DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UCC WILL BE CONFERRED ON YOU UNLESS EXPRESSLY GRANTED HEREIN. THE SOFTWARE IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. DUNN & CHURCHILL SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES. d) IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY. e) NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY DUNN & CHURCHILL, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN. f) (Australia Only) Where any legislation implies in this EULA any term, and that legislation avoids or prohibits provisions in a contract excluding or modifying such a term, such term shall be deemed to be included in this EULA. However, the liability of Dunn & Churchill for any breach of such term shall be limited as set out in clause d) above and section 6 below. g) (USA Only) SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE. 6. Exclusive Remedy Your exclusive remedy under the preceding is to return the Software to the place you acquired it, with a copy of your receipt and a description of the problem. Provided that any non-compliance with the above warranty is reported in writing to Dunn & Churchill no more than ninety (90) days following delivery to you, Dunn & Churchill will use reasonable commercial efforts to supply you with a replacement copy of the Software that substantially conforms to the documentation, provide a replacement for defective media, or refund to you your purchase price for the Software, at its option. Dunn & Churchill shall have no responsibility if the Software has been altered in any way, if the media has been damaged by misuse, accident, abuse, modification or misapplication, or if the failure arises out of use of the Software with other than a recommended hardware and software configuration. Any such misuse, accident, abuse, modification or misapplication of the Software will void the warranty above. THIS REMEDY IS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU FOR BREACH OF EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SOFTWARE AND RELATED DOCUMENTATION. 7. Limitation of Liability a) NEITHER DUNN & CHURCHILL NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF DUNN & CHURCHILL OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. b) DUNN & CHURCHILL'S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE GREATER OF AUD$100 OR THE AMOUNT PAID BY YOU FOR THE SOFTWARE THAT CAUSED SUCH DAMAGE. c) (USA Only) SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE. d) THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS EULA. 8. Third Party Software The Software may contain third party software which requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions are located at http://dunnchurchill.com and are made a part of, and incorporated by reference, into this EULA. By accepting this EULA, you are also accepting the additional terms and conditions, if any, set forth therein. 9. General This EULA shall be governed by the internal laws of South Australia, without giving effect to principles of conflict of laws. You hereby consent to the exclusive jurisdiction and venue of the state courts sitting in that state to resolve any disputes arising under this EULA. In each case this EULA shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods. This EULA, or in the case where the Software is the Enterprise Edition this EULA and the Enterprise License Agreement, contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written, and you agree that any varying or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Software licensed hereunder shall be of no effect. Where the Software is the Enterprise Edition the Enterprise License Agreement cannot vary sections 4, 5, 6, 7 and 8 of this agreement. The failure or delay of Dunn & Churchill to exercise any of its rights under this EULA or upon any breach of this EULA shall not be deemed a waiver of those rights or of the breach. No Dunn & Churchill dealer, agent or employee is authorized to make any amendment to this EULA unless such amendment is in writing and signed by a duly authorized representative of Dunn & Churchill. If any provision of this EULA shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this EULA will remain in full force and effect. All questions concerning this EULA shall be directed to: The Secretary, Dunn & Churchill Pty Ltd, 178 Fullarton Road, Dulwich, South Australia, 5065. Trademarks contained in the Software are trademarks or registered trademarks of Dunn & Churchill Pty Ltd. in Australia and/or other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. This EULA does not authorize you to use Dunn & Churchill or its licensors' names or any of their respective trademarks. dunn&churchill