Knowledge & Information Management Terms and Conditions
Knowledge & Information Management or (KIM SOFTWARE)
Terms and Conditions for Web site, Software, Service and Products
Terms and Conditions: Version No. 20091217v1
Please contact our office on firstname.lastname@example.org if you are in anyway unsure about our current terms and conditions, ask for a current version of our terms and conditions BEFORE you use the web site, software of products.
By accessing and using Knowledge & Information Management and (KiM SOFTWARE) web sites or by downloading materials from Knowledge & Information Management (KiM SOFTWARE) or using any of the sites, software service and products we offer, you thereby agree to abide by the terms and conditions of use detailed below. If you do not agree to be bound by these terms and conditions of use, please close the Knowledge & Information Management web site, software, service and or products now and refrain from using the Knowledge & Information Management web site, software, service or products.
1. Use of the Knowledge & Information Management and Control Zone web sites
References to “we”, “us” or “our” throughout this website (‘the Knowledge & Information Management web site”) pertains to the business of Knowledge & Information Management and Control Zone which operates the Knowledge & Information Management and ControlZone web sites among others. www.net.au , www.signsense.com.au , www.kimsoftware.com.au , www.controlzone.com.au and other sites, software, service and products under the ownership of Knowledge and Information Management and Control Zone.
The use of our web sites, software, service and products are governed by these terms. We reserve the right to modify these terms and conditions from time to time without any prior notice, after which use of our Website, Software, Service and Products will be governed by that revised version. It is recommended to check our current terms and conditions on the Website regularly.
Web Site: There is no charge imposed by us for accessing our web sites but you are liable to pay the cost of the communications link you used to visit our web sites. This free access does not include our on-line shop and purchases you may decide to make from our web sites or from us directly. Access to our web sites may be suspended, restricted or terminated at any time. We cannot guarantee that our web sites will be error free and we are not to be held liable for any interruption to service, information, and the accuracy of information and unavailability of these sites.
Software, Service and Products: There is a charge for access and use of all these items.
2. Links to Other Web Sites
We make no representations about any other Websites that you may be accessed through our sites or which may be linked to us. We are not responsible for the privacy practices of other website linked from our websites. Users are required to read the privacy policies or statements of other such web sites they visit. Any concerns regarding any external link should be directed to the concerned site’s Web administrator.
3. Intellectual Property Rights (IP)
All rights in our web sites including but not limited to design, text, graphics, other software, services and products including scripts, content, the selection and arrangements are claimed to be the intellectual property of our business where created by us. The contents of our websites and in our software programs, our services and our products are protected by international copyright laws and other intellectual property rights. If you purchase our software, services and products you may use this IP in your business only.
All company names and logos mentioned in our websites are the trade marks, service marks or trading names of their respective owners, including us. Any visitors including you may not modify, copy, reproduce, republish, upload, post, transmit or distribute, by any means or in any manner, any material or information on or downloaded from our websites, or our products including but not limited to text, graphics, video/s, messages, code and/or software without our prior written consent, except where expressly invited to do so. We respect the intellectual property of others.
We promote the importance of confidentiality to the successful planning, establishment and running of any business. Use of our Websites, our software, services and products, may offer us an insight into your business and to the best of our ability we will not at any time hereafter use, divulge or communicate to any person, except as may be required by law or any legal or regulatory authority, any confidential information concerning the business or affairs of any customer, prospective customer or supplier of Knowledge & Information Management. We will endeavour our best to prevent the publication or disclosure of any confidential information concerning such matters. We will always rely on our best decisions as to how, when and why we would divulge any information and would always aim to be in our client’s best interest in our opinion.
5. Applicability of Materials to your location.
We have done our best to ensure that our website, our software, services or products complies with international laws. However, we make no representations that the materials on our website, our software services and our products are appropriate or available for use in all international or local locations. Those who visit our website or use our software, services or products do so, on their own initiative and are responsible to comply with all applicable laws in your area, locality or country. If you use our website, our software, services or products, or use any of material or content or services offered through our website, our software, services or products offered violating any applicable law in your jurisdiction(s), then you are not authorised to view or use our website, our software, services or products and you must exit same immediately and cease use of same. Also see 7.
6. Access to Password Protected Areas
Access to and use of areas of our website, our software, services or products requiring a password is restricted to authorised users only. These areas are regulated by a separate agreement between us and user. In most cases payment is required for access of the same. Unauthorised access or access outside our agreed terms will be dealt with legally.
7. Products and or Services Purchased from us and or our distributors.
We aim to supply high quality products and services deemed to be of acceptable market quality and proven by existing sales and users. We have thoroughly tested our products over the years and have many satisfied customers. Our testimonials page has many user contact points, please take the time to invest your time in guaranteeing you are totally happy with our Website, our software, services or products before you purchase.
Ensuring you make your own decision: Our FAQ’s page offers a wide range of information on our websites, our software, services or products, therefore it's your actions and decisions you must ensure offers your needs BEFORE you purchase. We provide free personal demonstrations at our premises by arrangement, there are video demos, video tutorials on-line or personal online demonstrations to assist you in making your OWN DECISION. If you are in any way in doubt about purchasing our software, services or products we highly recommend not to buy our software, services or products. Not all software, services or products suit all businesses, you need to ensure our software, services or products is right for your business or it can be modified or edited to suit ( at an additional cost) your business. We will not be responsible for your change of mind, the suitability of use in your business, we don’t offer refunds of software, if your circumstances change it’s not our problem. We clearly state our No Refund policy within these terms and conditions. If you purchase our software, services or products from this web site or directly from our company you must TOTALLY and COMPLETELY ensure you have completed your own due diligence of said software, services or products BEFORE you purchase same.
8. User Information
We encourage feedback on how to improve our Products, Services and Websites. Feedback may be emailed to email@example.com Any feedback received shall be deemed to be non-confidential we hold the right to use such information in any way we deem to be fit. Users, licensee, visitors therefore agree that any information provided to us shall not contain defamatory, offensive, threatening, obscene, harassing, infringing or otherwise unlawful/material or proprietary material. We shall not be held liable for any such material and we reserve the exclusive rights to remove it from our Websites without liability.
9. Disabling Devices
Web Site: If the user, visitor or other person posts any content in the website, he/she should refrain from uploading any posting or postings which contain any viruses or other contaminating or destructive devices. We strive to ensure that our website, our software, services or products are free from any such viruses/devices or features but we give no warranty to that effect and will accept no liability whatsoever for any loss or damage suffered by the user in the event that it does.
10. Advertising and Sponsorship
Our websites, our software, services or products may contain advertising and sponsorship. Advertisers and sponsors are responsible for ensuring that material submitted for inclusion complies with international and national laws. We will not be held responsible for any error or inaccuracy in advertising material.
11. NO Refund policy.
Please be advised we do not refund and all sales are final. Our website, software, services or products may contain IP, software tools and specific usable items of information that once you open the software can be used immediately as you have instant access to use.
Our liability to you for direct damages for any cause whatsoever, and regardless of the form of the action, will be limited to the greater of $100 (AUD.) or 10% of the money paid for the use of our software, services or products that caused the damages once proven. The parties agree that this disclaimer of liability provision shall be enforced independently of and survive the failure of essential purpose of any warranty remedy.
13. Training In person, on site or by training videos
Disclaimer: NO WARRANTY on training outcomes due to the nature of skill levels of training participants is unknown to us. No guarantee of total completion of all areas of training is suggested or guaranteed. It is stated that we believe everyone learns at a different level, speed and ability to comprehend. We aim to deliver the best possible value in time available and the skill of your people. We aim to provide complete fulfillment of the course in a best case scenario however each person, group, company’s needs and the dynamics of the day are ALWAYS different and therefore offer NO WARRANTY to the outcomes you expect. You may need to speed up or slow down sections dependent on the lessons and people you send for training. It is our opinion that the course will provide an overview independent on these stated factors. We reserve the right to adjust the course delivery in line with our experience and the knowledge level of previous participants. We reserve the right to maintain times as advertised where “business observations and discussions” by either the trainer or students take away from allotted time. If you wish to adhere EXACTLY to a course outcome we clearly state it is IMPOSSIBLE to deliver the same results to differing skill sets in people within the scheduled time frame. Our aim of the course is to deliver the participant a user level practical getting started example. The user must commit to real time use and experience, watching training videos, personal training and development in line with their own skills, business knowledge and experience. It is recommended that should you need more specified or experienced training, we can quote once the initial training is completed and evaluation of you and your staff's knowledge and ability, if your request in writing.
Booking Training : Confirmed dates: We reserve the right to offer individual or grouped dates then respectfully request conformation of any selection ( even a choice of two ) within 48hrs, then over the next week (7 days) if you have chosen to select / reserve multiple options that we are advised. This allows advance purchase of airfares, accommodation and also frees optional dates for other clients. We recommend to use training equal to YOUR assessed needs analysis, we respectfully highlight each person and each company is DIFFERENT. Our BEST recommendation is typically 1 - 3 days full training advanced users only small groups ( 1 or 2 people only) deliver better training. This will offer a novice an excellent opportunity to learn and therefore be able to start using the software ( assuming they have the right balance of industry skills prior) . The videos and manuals are free for 3 months and we highly recommend you extend these support services as a wise ongoing commitment. We offer full day course in Sydney at our office, or we will come to your site for full day training in Sydney Metro with free travel if the training facility is equal to or better than our training room. We supply a "room set up guideline sheet" to assist you.( all other travel arrangements may incur additional costs at hourly rate if less than a day) Full day Interstate capital city incurs no traveling time but does incur airfares, accommodation, transfers etc as per our quote or do and charge. Specific training other than our developed methods are based on each clients needs and may be organised for multiples of 2 hours each + incidental costs, travel, transfers etc Our experience highlights early week days are better than end of week. A key element in highly successful users are 1. Follow our "Getting Started guide courses. 2, Adhere to the training manual exercises and understad the basics by investing your time BEFORE you engage us to train your people. The best practice methods vary dependant on yours skill sets and staff knowledge - best advice is 'dont rush it, do a needs analysis, follow our suggestions and options. Advanced dates : Fact is we never know how busy or quite we are going to be, that coupled with holidays, events or long term advance booking it can be a roller coaster " Rafferty's Rules". Therefore a few clients who are committed to implementation style of training have the vision to book advance dates weeks even months in advance to reserve dates to secure dates for potential additional training, there is no issue with us to if you wish to cancel dates with no penalty ( unless airfares or accommodation costs are incurred)
14. Success of Application for your use.
Your level of success in attaining the results potentially perceived or as YOU perceive in our software, service, products, information, discussions and material depends on the time you devote to the program, or people skills levels, ideas and techniques used and mentioned. In addition your finances, ability to invest time and resources, your knowledge and various skills you may or may not have. Since these factors differ according to individuals, we cannot guarantee your success, nor do we suggest any increase in profits, benefits, and an increase in income level. We make NO claim whatsoever to your anticipated success level using any of our software, services and products. your evaluation of our website, software, services and products is just that YOUR evaluation, not our claim or offer.
15. Earnings Disclaimer
Every effort has been made to accurately represent our software, services and products and their potential. It’s our claim there is no business, industry or opportunity where one can write their own cheque in terms of earnings, improvement, benefits or potential opportunities. There is no guarantee that you will earn any money at all using the techniques, concepts and ideas in our software, services and products. Examples in these materials MUST not to be interpreted as a promise or guarantee of earnings. Earning potential is entirely dependent on the person using our product, ideas and techniques. We do not purport this as a “get rich or business improvement scheme”. We stress the results are entirely pro-rata to your knowledge, ability, skill sets, business knowledge and a myriad of other factors entirely beyond our control.
16. Governing Law
If use of our website, our software, services or products creates an issue for you and any dispute arising out of these items usage are subject to the laws of New South Wales Australia. Any legal action or proceedings relating to or arising out of this Terms and Conditions may/shall be settled in the courts and/or tribunals in New South Wales Australia. Any claim resolution or disputes must be held in Sydney NSW Australia. Our Terms and Conditions and END USER LICENSE AGREEMENT ("EULA") shall be governed by the laws of the Australia and the State of New South Wales. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods (1980), as amended, is specifically excluded from application to this License. This License constitutes the entire agreement between you and us concerning the subject matter, and any proposals for additional or different terms, including but not limited to the terms set forth in any purchase order, are hereby rejected. Any waiver or amendment of any provision of this Terms and Conditions and END USER LICENSE AGREEMENT ("EULA") shall be effective only if in writing and signed by both you and us. If any provision of this Terms and Conditions and END USER LICENSE AGREEMENT ("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 License will remain in full force and effect.
Additional Software Terms and Conditions:
KNOWLEDGE & INFORMATION MANAGEMENT (KIM SOFTWARE) applies to any of our software versions and END USER LICENSE AGREEMENT (“EULA”) and use of FileMaker Software (FMI)N.B Use of FileMaker Software must be in accordance to separate user and or licence agreement contained in FileMaker’s software.
IMPORTANT -- READ CAREFULLY: BY INSTALLING, COPYING, DOWNLOADING, ACCESSING OR OTHERWISE USING KNOWLEDGE & INFORMATION MANAGEMENT (KIM SOFTWARE), SERVICES AND PRODUCTS, YOU AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT INSTALL, ACCESS OR USE THE SOFTWARE, SERVICES AND PRODUCTS.
END USER LICENSE AGREEMENT FOR Knowledge & Information Management (KiM Software) References to “we”, “us” or “our” throughout this End-User License Agreement ("EULA") pertains to the business of Knowledge & Information Management and Control Zone which operates the Knowledge & Information Management and Control Zone web sites among others. www.kim.net.au , www.signsense.com.au , www.kimsoftware.com.au , www.controlzone.com.au and other sites, software, service and products under the ownership of Knowledge and Information Management and Control Zone
A. License Grant. Our software is licensed, not sold, to you by us and/or subsidiaries for use only under the terms of this License, and we reserve any rights not expressly granted to you. Subject to all the terms and conditions of this License, We grant you a nonexclusive, non-transferable license to use, modify, edit and make back-up copies of the Software in your business only, provided that the Software is only used with an authorised licensed copy of the FileMaker Pro software application, version 7.0 or later or as a run-time version created by us. You must reproduce on each copy any copyright or other proprietary notices that were on the original copy supplied by us, along with a copy of this software license.
THE SOFTWARE LICENSE
The Software is protected by intellectual property laws and treaties. The Software is licensed, not sold.
A.1 GRANT OF LICENSE. This Section of the EULA describes Your general rights to install and use The Software license rights described in this Section and are subject to all other terms and conditions of this EULA.
A.2 General License Grant to Install and Use The Software. You may install and use one copy of The Software on a single computer, device, workstation, terminal, or other digital electronic or analogue device ("Device") and/or additional user licenses if you have purchased the same from us. You may make additional back up copies of The Software and install them to a back up server, computer of suitable portable device for the exclusive use of the person, company or business who is the primary user of the first copy of The Software. A license for The Software may not be shared between other separate persons, companies or businesses unless with written agreement from us.
A.2.1 BACKUP COPY. After installation of one copy of The Software pursuant to this EULA, you may keep the original media on which The Software was provided by Knowledge & Information Management (KiM Software) solely for backup or archival purposes. If the original media is required to use The Software on the Device, you may make one copy of The Software solely for backup or archival purposes. Except as expressly provided in this EULA, you may not otherwise make copies of The Software or the printed materials accompanying the Software Product. It is YOUR entire and sole responsibility to back up your data and your copy of The Software.
A1.3 General License Grant to Install and Use The Software as a Subscription Product. The following licensing terms apply to You instead of the license grants in the previous two paragraphs if You licensed a subscription-based The Software (a "Subscription Product"). You may install one copy of the Subscription Product on a single Device and/or additional user licenses if you have purchased the same from us. You may use the Subscription Product for the term of Your subscription. You may also exercise the additional license rights described in the paragraphs below, but only for the term of Your subscription. The initial subscription period begins on the date You first activate Your copy of the Subscription Product and ends three hundred and sixty five (365) days thereafter or a term set in our original agreement with you. You cannot use the Subscription Product after Your subscription expires unless You renew or extend Your subscription. By renewing or extending Your subscription, You will be entitled to continue using the Subscription Product for a specified period of time beyond the date when Your previous subscription would have otherwise ended. All the terms and conditions of this EULA will continue to apply to Your use of the Subscription Product during any subsequent renewal periods unless otherwise specified. After the expiration of Your subscription, You can continue to open, view and print any documents You created with the Subscription Product. ( see Disabling Devices for additional information)
A.4 Additional License Grant “additional user licenses”: You may use The Software with additional users if you purchase the additional licenses from us. The software is sold per license equals one (1) license per con-current user. That means a three (3) users license allows three (3) people or users to use The Software at the same time. Other information related to this use:• You can have several / many other peoples names who can log in and have their personal details used to identify them in The Software. These additional people may still only log on to the maximum number of users you have purchased.
• Or if you have occasions to have needs to use The Software in several areas or even remotely, you can simply purchase additional FileMaker software license. These additional people may still only log on to the maximum number of users you have purchased.• The Software enables you to install FileMaker software on several other computers and access KiM Software remotely. ( As long as you don’t exceed the total concurrent users of The Software at one time)
A.5 Disabling Devices Our software, services and products may / will contain disabling software keys or the like if purchased and paid over a time period, via subscriptions, lease, and annual license or for any other reason. Once the software is paid in full these disabling software keys will be deactivated if still licensed to the original purchaser. The fee to unlock this time-clock is equal to 1 month payment as an additional payment from your payment plan ( normally Ezidebit) You are made aware this is a condition of sale IF you chose to subscribe, lease, pay over time periods or otherwise make payments over time rather than purchase in full at one time. Your continuing use acknowledges you understand this key attribute and why it defaults to the log on reminder. Should you wish to no longer use the software, service, or products, we acknowledge the data you have inputted is your property and we can export the data at your request into a spreadsheet and provide to you at a cost. Typically this service is approximately 1 – 2 days work dependent on the volume of data. The cost will be quoted prior to export, once an evaluation review of your data is performed at your cost. An evaluation review cost will be $250+ GST. We require 14 days notice to deactivate the software key and to ensure payment status.
A.5.1 Custom software development edits and modifications to existing software or other FileMaker development work.
At a clients’ verbal request, written order or discussion or such, on any kind of FileMaker development work we will elect to use either agile development techniques, functional specification development techniques or other FileMaker techniques to best suit mutually both you and us, as determined by us as the experts.
We will require the clients to allow full and unrestricted remote access to FileMaker only and provide your access codes during this process, during beta testing and for the warranty period of 30 days. Should additional work be required for requests for access additional changes will be incurred.
Alternatively if you don’t feel comfortable about remote access, we offer you the opportunity to supply a current copy of your program ‘zipped’ and sent to us. We will work on the mods and return to you to re-install and test. At some further point you will be required to pay an additional charge to update data IF you have added data in the period of test, or other services not required if you provide us remote access.
We reserve the right to add disabling devices on any such development part or whole to install a time lock out device until all outstanding payments are received in full. This will / may mean the time - lock out will effect the entire programs operation.
This includes any work performed by us or any developers engaged by us.
Plain English for the lay – person. We determine agile development and functional specification development to be:
Agile Development: this means FileMaker development whereby an existing sample model, a simple wireframe or even a discussion of features and functions, an approximate budget verbal or otherwise is set and we move ahead to develop understanding and acknowledging we will build a proof of concept, working first drafts in that budget plus or minus 10%. It is agreed additional work will most likely be required as Agile development is a staged developmental process. At each stage an approximate budget guideline and a + or – percentage of budget will be set.
Functional Specification: this means a written functional specification for all the functions features layouts that would be developed in conjunction with the client to describe what the software is going to be, delivered as a rule of thumb a simple functional specification for a single module is likely to run a minimum 40 hours to 60 hours, following that a written quote will be provided for modifications based on the specifications.
Payment of Custom modification: We reserve the right to work in a manner normally accepted business terms which may include to request a deposit for any modifications. Regardless of agreed terms we will install a disabling device to ensure our agreed payment is made with terms and guideline as set in these terms and conditions and under our grant of license to use our software.
A.5.2 Remote access for modifications, edits and creation of reports - we require "full remote access" which is the typical term used in the industry. This means you will need to have your IT people create a "static IP address". Typically this could be not more than a couple of hours work and a small monthly charge from your internet provider. WHY - the integrity of your data is critical as is the developments, changes or modifications we would be performing, therefore static IT will provide a quality solution. We may depending on the Other work we are doing, offer other options see FAQ Remote Access. These will be for low level access for support, presentations and training.
A.6 Additional License Grant for Media Elements. The Software may include certain photographs, drawings, libraries, clip art, animations, sounds, music and video clips (together "Media Elements"). If so, the following terms describe Your rights to the Media Elements:
Except as specified in the next Section, You may use, copy and modify the Media Elements in your business.
You are not licensed to do any of the following:
• You may not sell, license or distribute copies of the Media Elements on a stand-alone basis or as part of any collection, product or service where the primary value of the product or service are the Media Elements.
• You must indemnify, hold harmless, and defend us from and against any claims or lawsuits, including attorneys' fees, that arise from or result from the use or distribution of Media Elements as modified by You.
• You must include a valid copyright notice on Your products and services that include copies of the Media Elements.
• You may not permit third parties to distribute copies of the Media Elements except as part of Your product or service.
(a) THE SOFTWARE IS NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, AIR TRAFFIC CONTROL, OR OTHER ENVIRONMENTS IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. (b) YOU MAY NOT TRANSFER OR ASSIGN YOUR RIGHTS UNDER THIS LICENSE TO ANOTHER PARTY WITHOUT OUR PRIOR WRITTEN CONSENT.
Reservation of Rights. All rights not expressly granted are reserved by us.
DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.
B.2 Academic Edition Software. If The Software is identified as "Academic Edition" or "AE," You must be a "Qualified Educational User" to use the Software Product. If You are not a Qualified Educational User, You have no rights under this EULA. To determine whether You are a Qualified Educational User, please contact Knowledge & Information Management (KiM Software) PO Box 435 Moorebank NSW 1875 Australia or the subsidiary serving Your country.
B.3 Copy Protection. The Software may include copy protection technology to prevent the unauthorised copying of The Software or may require original media for use of The Software on the Device/s. It is illegal to make unauthorised copies of The Software or to circumvent any copy protection technology included in the Software Product.
B.4 Not for Resale Software. If The Software is labeled "Not For Resale" or "NFR," then, notwithstanding other sections of this EULA, Your use of The Software is limited to use for demonstration, test, or evaluation purposes and You may not resell, or otherwise transfer for value, the Software Product.
B.5 Limitations on Reverse Engineering, De-compilation, and Dis-assembly. You may not reverse engineer, decompile, or disassemble the Software Product, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
B.6 Separation of Component Parts. The Software is licensed as a single product. Its component parts may not be separated for use on more than one Device unless expressly permitted by this EULA or by prior written agreement from us.
B.7 Trademarks. This EULA does not grant You any rights in connection with any trademarks or service marks of Knowledge & Information Management (KiM Software or any other trademark, logo or image contained, link or accessible through The Software.
B.8 No rental, leasing or commercial hosting. You may not rent, lease, lend or provide commercial hosting services to third parties with the Software Product.
B.9 Support Services. We may provide You with support services related to The Software ("Support Services"). Use of Support Services is governed by our policies and programs described in Support Services documentation, in "online" documentation, or in other Knowledge & Information Management (KiM Software) provided materials. Any supplemental software code provided to You as part of the Support Services are considered part of The Software and subject to the terms and conditions of this EULA. You acknowledge and agree that Knowledge & Information Management (KiM Software) may use technical information You provide to us as part of the Support Services for its business purposes, including for product support and development. Knowledge & Information Management (KiM Software will not utilise such technical information in a form that personally identifies You.
B.10 Software Transfer. You may not sell, license or distribute copies of The Software on a stand-alone basis or as part of any collection, product or service.
C. Termination. Without prejudice to any other rights, Knowledge & Information Management (KiM Software) may terminate this EULA if You fail to comply with the terms and conditions of this EULA. In such event, You must cease to use The Software and destroy all copies of The Software and all of its component parts. Your data can be exported to a spreadsheet without our prior knowledge or we can advise see A.5.
D. Lost, Stolen or Otherwise Unavailable Software (Fire, flood, theft etc). No replacement of The Software, Media, Data or Hardware Lock(s) is offered. You are advised to insure the software for the full purchase price and any other contingency you feel necessary. Replacement of The Software can then be claimed under said insurance policy if necessary. THE replace of The Software will CARRY THE FULL PURCHASE PRICE. Customers should fill out the registration form provided on the web site as a security measure to prevent unauthorised use, claim or upgrades of The Software covered in this EULA. In the event that a licence is lost, stolen or otherwise becomes unavailable due to fire flood, theft etc, it is imperative to advise Knowledge & Information Management (KiM Software) Software immediately of EULA affected.
E. Intellectual property rights regarding our Software. All title and intellectual property rights in The Software (including but not limited to any images, photographs, animations, video, audio, music, text, libraries, and "applets" incorporated into the Software Product), any accompanying printed materials, and any copies of The Software are owned by us or our suppliers. All title and intellectual property rights in and to the content that is not contained in the Software Product, but may be accessed through use of the Software Product, is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties. This EULA grants You no rights to use such content. If The Software contains documentation that is provided only in electronic form, you may print one copy of such electronic documentation. You may not copy the printed materials accompanying The Software.
F. Upgrades. The Software is sold as a fully developed application. However from time to time we may decide to enhance the existing product due to technical advances, new FileMaker versions, other software modules or any reason we decide. Existing users may qualify for upgrades at no or low cost if we so decide or they have purchased the licence/s within 90 days or less from the release date of the upgrade. Unless otherwise specifically noted, If any modifications have been created in the software by us, you or anyone else we will NOT be responsible for their continuing operation, enhancement , print out, use or any type of benefit you previously had prior to the upgrade. You MUST inform us and request a quote to upgrade WITH your modifications and enhancements.
F.1 Standard Software Product. If The Software is labeled as an upgrade, You must be properly licensed and registered via our web site with acknowledgment to use a product identified by us as being eligible for the upgrade in order to use the Software. The Software labeled as an upgrade replaces or supplements (and may disable) the product that formed the basis for Your eligibility for the upgrade. You may use the resulting upgraded product only in accordance with the terms of this EULA. If The Software is an upgrade of a component of a package of software programs that You licensed as a single product, the Software may be used and transferred only as part of that single product package and may not be separated for use on more than one Device.
F.2 Subscription Based Software Product. The following terms apply to You instead of the terms in the previous paragraph if You licensed a Subscription Product. If we release any upgrades or new versions of the Subscription Product during the term of Your subscription, You will be entitled to receive a copy of such upgrade(s) or new version(s) at the ruling costs and incur any applicable connection charges, taxes, fees, costs related to such upgrade, duties and shipping costs if You select fulfillment by mail, delivery or other method. Such upgrades shall be considered part of the Subscription Product and subject to all of the terms and conditions of this EULA unless otherwise indicated in any license agreement that accompanies such upgrade or new version.
G. Suitability of The Software Products and or Services Purchased for your use. We aim to supply quality software products and services deemed to be of acceptable market quality and proven by existing sales and users. We have thoroughly tested The Software over the years and have many satisfied customers. Our testimonials page has many user contact points, please take the time to invest your time in guaranteeing you are totally happy with our Website, our software, our services or our products before you buy. Our FAQ’s page offers a wide range of information on our Websites, our software, our services or our products, you must ensure our offer suits your needs BEFORE you purchase. If you purchase our software, our services or our products from this web site or directly from our company you must ensure you have completed your own due diligence of said software, services or products BEFORE you purchase same.
We provide free personal demonstrations at our premises, there are video demos, video tutorials on-line or personal online demonstrations to assist you in making your OWN DECISION. If you are in any way in doubt, we highly recommend don’t buy our software, services or products. Not all software, services or products suit all businesses, you need to ensure our software, services or products is right for your business or it can be changed to suit ( at an additional cost). We will not be responsible for your change of mind, suitability of use in your business, we don’t offer refunds of software, if your circumstances change it’s not our problem. We clearly state our No Refund policy within these terms and conditions.
H. NO GUARANTEE OF SUITABILITY, USE, APPLICATION OR IMPLIED BENEFITS. YOU ACKNOWLEDGE THAT THE SOFTWARE MAY NOT SATISFY YOUR REQUIREMENTS OR BE FREE FROM DEFECTS. THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, KNOWLEDGE & INFORMATION MANAGEMENT (KIM SOFTWARE) EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FURTHERMORE, THERE IS NO WARRANTY AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE OR AGAINST INFRINGEMENT OF THIRD PARTY RIGHTS BY THE SOFTWARE.
I. Disclaimer of Liability. WE WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, THAT STEM FROM ANY USE OR INABILITY TO USE THE SOFTWARE OR OTHERWISE ARISING FROM THIS LICENSE. Our liability to you for direct damages for any cause whatsoever, and regardless of the form of the action, will be limited to the greater of AUD $100 or a maximum10% of the money paid for the Software that caused the damages. The parties agree that this disclaimer of liability provision shall be enforced independently of and survive the failure of essential purpose of any warranty remedy.
J. LIMITED WARRANTY
LIMITED WARRANTY FOR SOFTWARE PRODUCTS. We warrant that THE SOFTWARE will perform substantially in accordance with the accompanying materials for a period of thirty (30) days from the date of receipt. If an implied warranty or condition is created by your state/jurisdiction and federal or state/provincial law prohibits disclaimer of it, you also have an implied warranty or condition, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THIS LIMITED WARRANTY (THIRTY DAYS). AS TO ANY DEFECTS DISCOVERED AFTER THE THIRTY (30) DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. Some states/jurisdictions do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to you. Any supplements or updates to THE SOFTWARE, including without limitation, any (if any) service packs or hot fixes provided to you after the expiration of the thirty (30) day Limited Warranty period are not covered by any warranty or condition, express, implied or statutory.
J.1 LIMITATION ON REMEDIES; NO CONSEQUENTIAL OR OTHER DAMAGES. Your exclusive remedy for any breach of this Limited Warranty is as set forth below. Except for any refund elected by us, YOU ARE NOT ENTITLED TO ANY DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES, if The Software does not meet our Limited Warranty, and, to the maximum extent allowed by applicable law, even if any remedy fails of its essential purpose. The terms of Section L below ("Exclusion of Incidental, Consequential and Certain Other Damages") are also incorporated into this Limited Warranty. Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. This Limited Warranty gives you specific legal rights. You may have others which vary from state/jurisdiction to state/jurisdiction.
J.2 YOUR EXCLUSIVE REMEDY. We and our suppliers' entire liability, and your exclusive remedy shall be, at our option from time to time and may be exercised subject to applicable law,
(a) return of a percentage of price paid (if any) for the Software Product only, or
(b) repair or replacement of the Software Product, that does not meet this Limited Warranty.
You will receive the remedy elected by us without charge, except that you are responsible for any expenses you may incur (e.g. cost of shipping The Software to Knowledge & Information Management (KiM Software) Software). This Limited Warranty is void if failure of The Software has resulted from accident, abuse, lack of training, correct implementation, failure to use, change of mind, sale of business, misapplication, abnormal use or a virus. Any replacement of The Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. Outside the United States, Canada, Australia or New Zealand neither these remedies nor any product support services offered by us are available without proof of purchase from an authorised international source appointed by us. To exercise your remedy, contact: Knowledge & Information Management (KiM Software) PO Box 435 Moorebank NSW 1875 Australia or the subsidiary serving your country.
K. DISCLAIMER OF WARRANTIES. THE LIMITED WARRANTY THAT APPEARS ABOVE IS THE ONLY
EXPRESS WARRANTY MADE TO YOU AND IS PROVIDED IN LIEU OF ANY OTHER EXPRESS
WARRANTIES (IF ANY) CREATED BY ANY DOCUMENTATION OR PACKAGING. EXCEPT FOR THE
LIMITED WARRANTY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
KNOWLEDGE & INFORMATION MANAGEMENT (KIM SOFTWARE) AND ITS SUPPLIERS PROVIDE THE SOFTWARE AND SUPPORT SERVICES (IF ANY) AS IS AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY OR COMPLETENESS OR RESPONSES, OF RESULTS, OF WORKMANLIKE EFFORT, OF LACK OF VIRUSES AND OF LACK OF NEGLIGENCE, ALL WITH REGARD TO THE SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE.
L. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL KNOWLEDGE & INFORMATION MANAGEMENT (KIM SOFTWARE) OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF KNOWLEDGE & INFORMATION MANAGEMENT (KIM SOFTWARE) OR ANY SUPPLIER, AND EVEN IF KNOWLEDGE & INFORMATION MANAGEMENT (KIM SOFTWARE) OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
M. LIMITATION OF LIABILITY AND REMEDIES. NOTWITHSTANDING ANY DAMAGES THAT YOU
MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES
REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF
KNOWLEDGE & INFORMATION MANAGEMENT (KIM SOFTWARE) AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS EULA AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING (EXCEPT FOR ANY REMEDY OF REPAIR OR REPLACEMENT ELECTED BY KNOWLEDGE & INFORMATION MANAGEMENT (KIM SOFTWARE) SOFTWARE)WITH RESPECT TO ANY BREACH OF THE LIMITED WARRANTY) SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE WILL BE LIMITED TO THE GREATER OF AUD $100 OR A MAXIMUM 10% OF THE MONEY PAID FOR THE SOFTWARE THAT CAUSED THE DAMAGES. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS (INCLUDING SECTIONS G,H, J, J.1, J.2 , K, AND L ABOVE) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
N. Termination. This License is effective until terminated. This EULA License will terminate immediately without notice from KNOWLEDGE & INFORMATION MANAGEMENT (KIM SOFTWARE) or judicial resolution if you fail to comply with any provision of this EULA License. Upon such termination you must destroy the Software, any accompanying written materials and all copies thereof, and Sections (INCLUDING SECTIONS G,H, J, J.1, J.2 , K, AND L ABOVE) will survive any termination
O. Export Law Assurances. You may not use or otherwise export or re-export the Software except as authorised by Australian law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into (or to a national or resident of) any other country without our written consent. By using the Software you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.
P. Export restrictions. You acknowledge that this The Software of Knowledge & Information Management (KiM Software) is of Australian origin. You agree to comply with all applicable international and national laws that apply to the Software Product.
Q. U.S. GOVERNMENT LICENSE RIGHTS. All The Software provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995 is provided with the commercial license rights and restrictions described elsewhere herein. All The Software provided to the U.S. Government pursuant to solicitations issued prior to December 1, 1995 is provided with RESTRICTED RIGHTS as provided for in FAR, 48 CFR 52.227-14 (JUNE 1987) or DFAR, 48 CFR 252.227-7013 (OCT 1988), as applicable.
R. Governing Law
This EULA is governed by the laws of New South Wales, Australia. Should you have any questions concerning this EULA, or if you desire to contact Knowledge & Information Management (KiM Software) for any reason, please contact Knowledge & Information Management (KiM Software) or subsidiary serving your country or write to Knowledge & Information Management (KiM Software) PO Box 435 Moorebank NSW 1875 Australia.
ENTIRE AGREEMENT. This EULA (including any addendum or amendment to this EULA which is included with the Software Product) is the entire agreement between you and Knowledge & Information Management (KiM Software) relating to The Software and the support services (if any) and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to The Software or any other subject matter covered by this EULA. To the extent the terms of any Knowledge & Information Management (KiM Software) policies or programs for support services conflict with the terms of this EULA, the terms of this EULA shall prevail.
KNOWLEDGE & INFORMATION MANAGEMENT (KIM SOFTWARE) reserves the right to change these terms and conditions from time to time and recommends the users to request a current version, or view our web site. E&OE Version 20091214/2010001