END USER LICENCE AGREEMENT

Current as at 16 July 2019

Background

  1. This End User License Agreement (“EULA”) between uDrew Pty Ltd (“uDrew”) with principal offices located at 5/896 Beaufort St., Inglewood WA 6052, and you, as the “End User” governs the grant of the license by uDrew to the End User to use the uDrew Product, subject to the terms and conditions outlined in this EULA.  
  2. By accessing or otherwise using the uDrew Product, you, the End User, agree to be bound by the terms of this EULA. If you do not agree to the terms of this EULA, do not install, download or otherwise use the uDrew Product or allow your permitted users to install, download or otherwise use the uDrew Product. 

1. Definitions 

    1.1 In this EULA, the following terms shall have the definitions as follows:

“Approved Purpose” means the purpose for which the Product and the Software was created. 

“Documentation” means the Software's standard user manual and all manuals, instructions and other documents and materials that uDrew provides or makes available to End User in any form or medium which describe the functionality, components, features or requirements of the Software, including any aspect of the installation, configuration, integration, operation, use, support or maintenance of the Software.

“Embedded Software” means any third-party software code licensed by uDrew from a third-party and embedded in the Software. 

“Fees” means the Fees payable under the Proposal Document.

“Intellectual Property” is defined as including; but is not limited to; all Trade Marks, patents, copyrights, processes, know-how, registered designs, specifications, statements, formulae, trade secrets, manner of new manufacture, drawings and data or other like property or rights owned or held by uDrew in relation to the Software.  These rights include: 

    1. Marks, logos, service marks, trade names, business names, internet domain names, slogans, symbols, brand names, a copyright or other trade indicia; and
    2. all rights in information, know-how, processes, procedures, compositions, devices, methods, formulae, protocols, techniques, software, designs, drawings, programs, source code, dynamic link libraries, graphical user interfaces, trade secrets or data, whether or not protectable by patent uDrew design registration, copyright, circuit layouts or otherwise, whether unregistered, registered or registerable.

“Product” means the product provided by uDrew which utilizes the Software created by uDrew for the Approved Purpose.

“Protection Mechanisms” means any license protection mechanisms that are designed to manage and protect the Intellectual Property of uDrew and its third-party licensors that may be included in the Software.

 “Software” means the uDrew software which is being licensed to the End User under this EULA, which includes computer software, source code, object code and may include associated media, Documentation and other printed or electronic materials, internet-based services, Embedded Software and all Supplementary Software.

“Supplementary Software” means updates, upgrades, enhancements, supplements, add-on components, service components, service releases (new builds) and new versions of the Software.

“Uncontrolled Systems” means hardware systems not owned, leased or controlled by the End User.

2. Acceptance 

    2.1 By using the uDrew Product you agree to this EULA and our Privacy Policy, available here: https://www.udrew.com.au/legal/privacy. Please read this EULA and the Privacy Policy carefully. Your use of the uDrew Product will be subject to this EULA. 

3. License to use the Software 

    3.1 Grant of License 

    Upon downloading, installing or using the Software, uDrew grants to End User a non-exclusive license to use the Software for the Approved Purpose. 

    End User may not and must procure that its users do not:

  1. decompile, reverse engineer, disassemble, modify, adapt, create derivative works from, or otherwise attempt to derive source code, any portion of the Software; 
  2. directly or indirectly access or use any Embedded Software independently of the rest of the Software; 
  3. sell, sublicense, redistribute, reproduce, transmit, circulate, disseminate, translate or reduce to or from any electronic medium or machine readable form of the Software or any data/information not owned by the End User; 
  4. post the Software or part of the Software code on any website that is accessible to parties other than the End User;
  5. copy or embed elements of the Software into other applications; or
  6. while the End User is permitted to conduct "benchmarking" in relation to the Software as a whole, the End User shall not conduct any "benchmarking" in relation to individual Embedded Software elements.

4. Ownership  

5. End User Obligations 

    At all times during the Term of this EULA, End User shall:

  1. fully comply with the provisions of the EULA and only use the Software in accordance with this EULA and for the Approved Purpose;
  2. promptly notify uDrew in writing, but in no event more than two (2) business days after it becomes aware that any breach of its obligations under this EULA has occurred;
  3. not commit any act or omission the likely result of which is that uDrew 's or any of its third-party suppliers’ reputation will be brought into disrepute or which act or omission could reasonably be expected to have or does have a material and adverse effect on uDrew 's interests; and
  4. not modify or alter any Protection Mechanisms to circumvent or defeat the Software use rules that such Protection Mechanisms are designed to enforce.

6. Disclaimer and limitations of liability 

  1. Nothing in this EULA excludes, restricts or modifies any term, condition, warranty, guarantee, right or remedy (including but not limited to a consumer guarantee under the Australian Consumer Law (“ACL”)) which cannot lawfully be excluded, restricted or modified. 
  2. In no event shall we be liable (whether for breach of contract, negligence or for any other reason) for any loss arising from your use of the uDrew Product or Software. This paragraph does not, and nothing in this EULA shall act to, exclude or limit our liability for death or personal injury resulting from our gross negligence or fraud.  
  3. Your use of the uDrew Product comes with guarantees that cannot be excluded under the Australian Consumer Law. Where there is a failure to comply with a consumer guarantee, you are entitled, and our liability to you is limited, to:  
    1. the re-supply of the uDrew Product; or 
    2. our payment of the reasonable cost of having the uDrew Product re-supplied.  
  4. We are not liable for any action you may take as a result of relying on any information (including misinformation) displayed in the uDrew Product. 
  5. You will indemnify us in respect of any and all losses, costs, expenses, claims, demands, liabilities and damages (including legal fees on a solicitor/client basis) suffered or incurred by us, our officers, directors, employees, agents and related companies that arise in connection with your use of the uDrew Product or any breach by you of this EULA, but you will not be liable for any losses or damages we suffer or incur to the extent such loss or damage is caused by us. 
  6. End User will defend, indemnify and hold harmless uDrew and its affiliates against all costs, expenses, losses, damages and claims made against uDrew arising from or related to any infringement or claim of infringement of any third-party’s Intellectual Property arising from the End User’s or its users’ modification of the Software.  
  7. uDrew shall not be liable to any party for any consequential loss, loss of profits, loss of data, business interruption or any form of indirect loss.

7. Suspension and termination of service 

  1. We may update, change or suspend access to the UDrew Product at any time and from time to time and without liability to you or your authorised users for any loss suffered as a result of suspending access to the uDrew Product.  
  2. Without limiting paragraph (a) above, we may suspend the operation of the uDrew Product for repair or maintenance work or in order to update or upgrade the contents or functionality of the uDrew Product at any time and from time to time.  We do not guarantee that access to or use of the uDrew Product or any sites or pages linked to it will be uninterrupted or error free. 
  3. We may terminate this Agreement and your right to use of the uDrew Product immediately in the event you breach any of these Terms. To the extent that the License Fee has been paid beyond the date of termination, uDrew shall refund within 30 days the unused portion of the License Fee to the End User.

8. Actions following Termination 

    Immediately following termination of this EULA and the License granted and in any event not more than 7 days after the date of termination, the End User shall at its own cost: 

  1. cease permitting access to and cause all authorized users to immediately cease all use of the Software; and
  2. remove all copies of the Software from its computer systems.

9. Legal 

  1. If any part or provision of the Agreement is void, unenforceable or illegal in a jurisdiction, that part or provision will be struck from this EULA. However, the remainder of the Agreement continues in operation in that jurisdiction unless this would alter the basic agreement between you and us, in which case we can terminate your use of the uDrew Product at our election. 
  2. If we do not insist upon strict performance of any part or provision of the Agreement, that waiver will not be deemed to be a waiver of any subsequent breach or default of the Agreement. 
  3. You cannot assign or otherwise transfer the benefit of the Agreement between us and you without our prior written consent. We can assign or otherwise transfer the benefit of the Agreement between us and you. 
  4. The Agreement is governed by the laws of WA and the courts of WA have jurisdiction over the parties to the Agreement (being you and us).