1. PARTIES TO THE AGREEMENT

This agreement is made between [EvolutionCode Pty Ltd or your substituted corporate entity] (the “Licensor”) and you (the “End User”) on the Commencement Date.

2. DEFINITIONS

2.1 In this Agreement, unless the contrary intention appears:

“Agreement” means this Agreement and all schedules to this Agreement.

“Commencement Date” means the date on which the End User downloads, installs or first uses the Software.

“Activation Date” date on which the licensor receives payment under clause 5 of this agreement.

“Activation” refers to the upgrading/unlocking of the functionality of the software from LITE Edition to the functionality present in the Purchased Editions.

“Functionality” means the intended result of using the computer program.

“Commercialised” means to sell, hire or license the Software to any third party.

“Computer Program” means computer program within the definition of section 9 of the Copyright Act including but not limited to all source and object code used in a computer process to bring about a certain result.

“Data Files” means any information stored in an electronic format which is utilised by the Software.

“End User” means a person that downloads, installs or uses the Software on a computer within their control.

“Intellectual Property Rights” means copyright, trade mark, design, patent, semiconductor or circuit layout rights; trade or other proprietary rights, or any rights to registration of such rights created before, on or after the Commencement Date.

“License” means the license described in clause 5 of this Agreement.

“License Fee” means the sum described in clause 8 of this Agreement.

“Licence Term” means the period of time described in clause 3 of this Agreement.

“Licensor” means [EvolutionCode Pty Ltd (ACN ACN 101 417 216) or your substituted corporate entity]

“Link” means an interactive address which allows the End User to access or download information or materials through an internet protocol.

“LITE Edition” means the software with functionality limited pursuant to the sole discretion of the Licensor.

“Moral Rights” means the right of integrity of authorship, the right of attribution of authorship and the right not to have authorship falsely attributed, more particularly as conferred by the Copyright Act 1968 (Cth), and rights of a similar nature anywhere in the world whether existing at the Commencement Date or which may come into existence on or after the Commencement Date.

“Parties” means the parties to this Agreement.

“Personal and Business Purposes” means the use for study by the end user and their immediate dependant family.

“Software” means the computer program entitled “RecallPlus” and all versions or editions of that computer program that the Licensor may offer to the public from time to time.

“Technological Protection Measures” means any measure falling within the definition of “Technological Protection Measure” under section 9 of the Copyright Act including, without limitation, any component incorporated into a process that is designed in the ordinary course of its operation to prevent infringement of copyright in a work by ensuring that access to the work or other subject matter is available solely by use of an access code or process (including decryption, unscrambling or other transformation of the work or other subject-matter) with the authority of the Licensee.

2.2 In this Agreement, unless the contrary intention appears:

(a) a reference to a clause number is a reference to its subclauses;

(b) words in the singular number include the plural and vice versa;

(d) a reference to a person includes bodies corporate and unincorporated associations and partnerships;

(e) a reference to a clause is a reference to a clause or subclause of this Agreement;

(f) a reference to a subclause is a reference to a subclause of the clause in which that reference is made;

(g) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

3. TERM

This Agreement commences on the Commencement Date and subject to the terms and conditions of this Agreement will continue unless this agreement is terminated or until one (1) day prior to copyright ceasing to subsist in the Software.

4. CLICK WRAP AGREEMENT

The End User will be bound by the Terms and Conditions of this agreement upon indicating, whether by causing an electronic signal to be sent to the Licensor’s computers or any other method whatsoever, that the End User intends to be bound by these Terms and Condition. It is a condition precedent of the Licensor granting the Licence in clause 5 of the Agreement that the End User agrees to be bound by the Terms and Conditions of this Licence Agreement.

5. LICENCE

5.1 From the commencement date and for the period of the term of the licence, the licensor grants the end user a non transferable, non exclusive licence to use the LITE edition of the software for personal and internal business purposes only.

5.2 The End User may at any time upgrade the LITE edition of the Software by paying to the Licensor a Licence Fee in accordance with clause 8 of this Agreement and in consideration for the License Fee and subject to the terms and conditions of this Agreement, the Licensor shall

5.2.1 Grant to the End User, a non-exclusive, non-transferable license to use an upgraded version and/or edition of the Software solely for personal and internal business purposes for the period of the Licence Term.

5.2.2 Register the End User as having a licence to use a purchased edition and/or version of the software for personal and internal business purposes only on its servers.

5.2.3 Upon any electronic request from the End User the Licensor shall activate the upgraded edition of the software on the end user’s computer.

5.3 The Parties agree that:

(a) the License granted in clause 5.1 does not include the right to grant sub-licenses;

(b) the Software in its original form or as altered or modified by the Licensor is not to be Commercialised by the End User;

(c) the End User will maintain records of the location where all activated copies of the Software in its original form or as altered or modified by the End User have been distributed. These records will be produced upon request by the Licensor.

(d) The End User shall not except as provided by law de-compile, reverse engineer, disassemble the Software or Data files.

(e) The End User shall not circumvent or attempt to circumvent any technological protection measures used by the Licensor in respect of the Software or Data files

(f) The End User shall not use any network monitoring software to analyse the software or any manual means to copy the software.

6. MODIFICATIONS

6.1 The End User acknowledges and agrees that the Licensor owns the Intellectual Property Rights in the Software and Data files in its original form and as modified or altered by the End User.

6.2 If the Software or Data Files are modified or altered by the End User, the End User will fully indemnify the Licensor against all liability which may be incurred by the Licensor if such modifications or alterations infringe any Intellectual Property Rights of a third person or otherwise cause the Licensor to suffer loss, damages or expense.

6.3 This Agreement shall apply to the Software and Data Files as modified or altered.

6.4 The End User shall execute such documents and perform such other acts as necessary in order to give effect to sub-clause 6.1.

7. UPDATES

The Licensor is under no obligation under this Agreement to maintain or to provide updates, if any, to the End User in relation to the Software during the term of this Agreement.

8. LICENCE FEE

8.1 The Licence Fee referred to in clause 5.2 of this Agreement and payable on the Activation Date will be the Licence Fee for the upgraded version or edition of the software shown on the webpage https://www.evolutioncode.com/secure/securepurchase.asp as shown on the Activation Date.

8.2 The Licensor reserves the right to amend the price of the Software shown on the webpage https://www.evolutioncode.com/secure/securepurchase.asp at any time prior to the Activation Date.

9. NO ENDORSEMENT

9.1 The Licensor has provided the End User with links to materials (e.g. online content library) belonging to third parties and the Licensor does not endorse those materials nor will the Licensor be held responsible for any materials thereon.

10. ERRORS

10.1 If at any time during the Agreement the End User becomes aware that there is an error in the Software, the End User will endeavor to notify the Licensor of the perceived defect.

10.2 The Licensor will not be liable for any damage or loss caused by an error in the Software.

11. INDEMNITY

11.1 The End User agrees it will indemnify the Licensor and its officers, employees and agents (“those indemnified”) from and against any loss or damage (including loss of profits, consequential loss or reasonable legal costs and expenses) or claims made by any person arising out of:

(a) the End User’s use of, or inability to use, the Software in its original form or as modified or altered;

(b) the content contained in the Software in its original form or as modified or altered being inaccurate or incomplete;

(c) any content, materials or information whatsoever provided by the Licensor to the End User through its website or by any other means.

(d) any breach by the End User of this Agreement; and

(e) any infringement or alleged infringement of the rights, including Intellectual Property Rights, of any person as a result of the End User’s use, modification or alteration of the Software.

11.2 This clause will survive termination of this Agreement.

12. EXCLUSION OF LIABILITY

12.1 The End User acknowledges and agrees that the Licensor and its officers, employees and agents will not be liable for any loss or damage including loss of profits, or consequential loss howsoever caused, including through negligence, incurred by any person arising from:

(a) the End User’s use of, or inability to use, the Software in its original form or as modified or altered; and

(b) the content contained in the Software in its original form or as modified or altered being inaccurate or incomplete, and/or

(c) the functionality or lack of functionality of the software.

12.2 The Parties agree that to the extent permitted by law, the Licensor excludes all implied terms (including conditions and warranties) applicable under this Agreement.

12.3 This clause will survive termination of this Agreement.

12.4 The End User agrees that the Licensor will not be liable for any damage, loss or suffering caused by any of the following materials which may be unlawfully uploaded by third parties and which are accessible through the Software is expressly excluded by the Licensor:-

(a) Pornographic material or material of an adult and/or indecent nature

(b) Materials depicting dangerous acts or gratuitous violence

(c) Materials which are intended to shock or disgust other users

(d) Hate Speech being materials intended to demean any individual or group on the basis of their gender, sexuality, race, age or any other characteristic of that individual or group.

(e) Material that infringes intellectual property rights of third parties

(f) Materials intended to threaten, stalk or harass other individuals or groups including materials which invade privacy or reveal personal information about those individuals or groups.

13. WARRANTIES

13.1 The End User warrants that:

(a) it will not infringe the rights including Intellectual Property Rights or Moral Rights of any person in the performance of this Agreement;

(b) it will not engage in activity, i.e. enter into any license, agreement or understanding with any person which is likely to conflict with its obligations under this Agreement; and

(c) it will not deal with the Intellectual Property Rights in the Software in a manner that is inconsistent with this Agreement.

13.2 The End User warrants that he or she will not use the software to upload onto any Website or share in any way whatsoever any of the following materials:-

(a) Pornographic material or material of an adult and/or indecent nature

(b) Materials depicting dangerous acts or gratuitous violence

(c) Materials which are intended to shock or disgust other users

(d) Hate Speech being materials intended to demean any individual or group on the basis of their gender, sexuality, race, age or any other characteristic of that individual or group.

(e) Material that infringes intellectual property rights of third parties

(f) Materials intended to threaten, stalk or harass other individuals or groups including materials which invade privacy or reveal personal information about those individuals or groups.

14. ACKNOWLEDGMENT

14.1 The Parties acknowledge that downloading, installing and using the Software is at the End Users risk.

14.2 The End User acknowledges that:-

(a) the Licensor is not responsible for any damage caused to the End Users computer or computer system caused by downloading, installing or using the Software.

(b) The Licensor owns all intellectual property in the Software.

15. PRIVACY POLICY

The Licensees Privacy Policy can be viewed at the EvolutionCode website.

16. TERMINATION

16.1 The Licensor may terminate this Agreement immediately by notice in writing to the End User if:

(a) the End User is in breach of any term of this Agreement and such breach is not remedied within seven (7) days of notification by the Licensor;

(b) the End User Commercialises the Software and any modifications or alterations to the Software;

(d) the Licensor, in its discretion, gives seven (7) days written notice to terminate the Agreement;

(e) the End User has reasonable grounds for believing that the End User is using the Software in its original form or as modified or altered in an inappropriate manner.

16.2 Upon termination of this Agreement, the End User must:

(a) immediately discontinue use of the Software in its original form or as modified or altered by the End User;

(b) return to the Licensor, upon request, all copies of the Software in its original form or as modified or altered by the End User; and

(c) do such further things as may be reasonably requested by the Licensor to protect its interests and its Intellectual Property Rights in the Software in its original form or as modified or altered by the End User.

17. ENTIRE AGREEMENT

This Agreement constitutes the entire agreement between the parties on the subject matter.

18. ASSIGNMENT AND NOVATION

The benefit of this Agreement must not be assigned by the End User.

19. WAIVER

No right under this Agreement shall be deemed to be waived except by notice in writing signed by the Licensor.

20. VARIATION

The provisions of this Agreement shall not be varied, except by agreement in writing signed by the Parties.

21. DISPUTES

Any dispute arising in connection with this Agreement which cannot be settled by negotiation between the Parties or their representatives must be submitted to mediation through an independent mediator chosen by agreement between the Parties, the costs of which will be borne equally by both Parties.

22. NO RELATIONSHIP

Nothing in this Agreement constitutes a Party, the partner, employee, agent, or legal representative of the other Party for any purpose or creates any partnership, agency or trust, and no Party has any authority to bind the other Party in any way.

23. GOVERNING LAW

This Agreement will be governed by and construed according to the law of the State of Queensland.

Licence - End User Licence Agreement - EULA

6.1 The End User acknowledges and agrees that the Licensor owns the Intellectual Property Rights in the Software and Data files in its original form and as modified or altered by the End User.

6.3 This Agreement shall apply to the Software and Data Files as modified or altered.

6.4 The End User shall execute such documents and perform such other acts as necessary in order to give effect to sub-clause 6.1.

The Licensor is under no obligation under this Agreement to maintain or to provide updates, if any, to the End User in relation to the Software during the term of this Agreement.

11.1 The End User agrees it will indemnify the Licensor and its officers, employees and agents (“those indemnified”) from and against any loss or damage (including loss of profits, consequential loss or reasonable legal costs and expenses) or claims made by any person arising out of:

(a) the End User’s use of, or inability to use, the Software in its original form or as modified or altered;

(b) the content contained in the Software in its original form or as modified or altered being inaccurate or incomplete;

(c) any content, materials or information whatsoever provided by the Licensor to the End User through its website or by any other means.

(d) any breach by the End User of this Agreement; and

(e) any infringement or alleged infringement of the rights, including Intellectual Property Rights, of any person as a result of the End User’s use, modification or alteration of the Software.

11.2 This clause will survive termination of this Agreement.

12.1 The End User acknowledges and agrees that the Licensor and its officers, employees and agents will not be liable for any loss or damage including loss of profits, or consequential loss howsoever caused, including through negligence, incurred by any person arising from:

(a) the End User’s use of, or inability to use, the Software in its original form or as modified or altered; and

(b) the content contained in the Software in its original form or as modified or altered being inaccurate or incomplete, and/or

(c) the functionality or lack of functionality of the software.

12.2 The Parties agree that to the extent permitted by law, the Licensor excludes all implied terms (including conditions and warranties) applicable under this Agreement.

12.3 This clause will survive termination of this Agreement.

12.4 The End User agrees that the Licensor will not be liable for any damage, loss or suffering caused by any of the following materials which may be unlawfully uploaded by third parties and which are accessible through the Software is expressly excluded by the Licensor:-

(a) Pornographic material or material of an adult and/or indecent nature

(b) Materials depicting dangerous acts or gratuitous violence

(c) Materials which are intended to shock or disgust other users

(d) Hate Speech being materials intended to demean any individual or group on the basis of their gender, sexuality, race, age or any other characteristic of that individual or group.

(e) Material that infringes intellectual property rights of third parties

(f) Materials intended to threaten, stalk or harass other individuals or groups including materials which invade privacy or reveal personal information about those individuals or groups.

13.1 The End User warrants that:

(a) it will not infringe the rights including Intellectual Property Rights or Moral Rights of any person in the performance of this Agreement;

(b) it will not engage in activity, i.e. enter into any license, agreement or understanding with any person which is likely to conflict with its obligations under this Agreement; and

(c) it will not deal with the Intellectual Property Rights in the Software in a manner that is inconsistent with this Agreement.

13.2 The End User warrants that he or she will not use the software to upload onto any Website or share in any way whatsoever any of the following materials:-

(a) Pornographic material or material of an adult and/or indecent nature

(b) Materials depicting dangerous acts or gratuitous violence

(c) Materials which are intended to shock or disgust other users

(d) Hate Speech being materials intended to demean any individual or group on the basis of their gender, sexuality, race, age or any other characteristic of that individual or group.

(e) Material that infringes intellectual property rights of third parties

(f) Materials intended to threaten, stalk or harass other individuals or groups including materials which invade privacy or reveal personal information about those individuals or groups.

16.1 The Licensor may terminate this Agreement immediately by notice in writing to the End User if:

This Agreement constitutes the entire agreement between the parties on the subject matter.

The benefit of this Agreement must not be assigned by the End User.

No right under this Agreement shall be deemed to be waived except by notice in writing signed by the Licensor.

The provisions of this Agreement shall not be varied, except by agreement in writing signed by the Parties.

Any dispute arising in connection with this Agreement which cannot be settled by negotiation between the Parties or their representatives must be submitted to mediation through an independent mediator chosen by agreement between the Parties, the costs of which will be borne equally by both Parties.

This Agreement will be governed by and construed according to the law of the State of Queensland.

Legal Notices You Must Be Aware Of