EULA
This copy of the Spektra+ ("the Software Product") and accompanying documentation is licensed and not sold. This Software Product is protected by copyright laws and treaties, as well as laws and treaties related to other forms of intellectual property. Creative Lighting & Sound Systems Pty Ltd or its subsidiaries, affiliates, and suppliers (collectively "Creative Lighting") own intellectual property rights in the Software Product. The Licensee's ("You" or "Your") license to download, use, copy, or change the Software Product is subject to these rights and to all the terms and conditions of this End User License Agreement ("Agreement").
PLEASE READ THIS AGREEMENT CAREFULLY. BY TAKING ANY STEP TO SET UP OR INSTALL, RUN OR DOWNLOAD THE PROGRAM MEANS THAT YOU ACCEPT ALL OF THE TERMS OF THIS LICENSE AGREEMENT. PERMISSION TO DOWNLOAD AND/OR USE THE PROGRAM IS EXPRESSLY CONDITIONED ON YOUR FOLLOWING OF THESE TERMS. WRITTEN OR ELECTRONIC APPROVAL IS NOT REQUIRED TO MAKE THIS AGREEMENT VALID AND ENFORCEABLE. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO USE OR DOWNLOAD THE PROGRAM AND MUST STOP INSTALLING IT OR UNINSTALL IT, AS APPLICABLE. IF YOU DO NOT AGRE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST NOT COPY THE SOFTWARE PRODUCT.
Creative Lighting reserves the right to amend the terms of this Agreement at any time and will post a notice on its website giving notice of that change for a period of 30 days. Following Creative Lighting's posting of the amendment notice on Creative Lighting's website, Your subsequent access to or use of the Program and Documentation will constitute an acceptance of those amendments.
1. DEFINITIONS
1.1 "Documentation" means written documentation, specifications and help content made generally available by Creative Lighting to aid in installing and using the Program.
1.2 "Intellectual Property Rights" means all copyright, patents, design rights, trademarks and service marks and applications for any of the foregoing, together with all trade secrets, know-how, database rights, rights to confidentiality, intellectual and industrial property rights and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration in all parts of the world.
1.3 "Software Product" means the Creative Lighting programming graphical user interface which you are installing.
1.4 "Program" means all or any part of Creative Lighting's software for the Software Product for the purpose licensed to You by Creative Lighting under this Agreement.
2. LICENCE
2.1 License Grant
Subject to your compliance with this Agreement and this Agreement's restrictions, Creative Lighting grants to You a limited, non-exclusive, non-transferable, royalty-free licence (without the right to sublicence):
(a) to install and use one copy of the Software Product; and
(b) to create a single archival copy of the Software Product so long as the copy is not stored on a hard drive or uploaded to a cloud computing service, and provided that all titles and trademark, copyright and restricted rights notices are reproduced on the copy.
2.2 Restrictions
Without first obtaining the express written consent of Creative Lighting, you may not
(a) assign your rights and obligations under this Agreement, or redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer your rights to the Software Product; or
(b) Install or use multiple copies of the Software Product; or
(c) Install the Software Product on
i) more than one computer at any point in time; or
ii) on a system that allows shared use of application; or
iii) on a multi-user network; or
iv) on any configuration or system of computers that allows multiple users;
b) Attempt, directly or indirectly to modify, reverse engineer, adapt, sub-license, translate, sell, disassemble or decompile any portion of the Program or the Documentation, or the source code thereof; or
c) allow any third party, directly or indirectly to modify, reverse engineer, adapt, sub-license, translate, sell, disassemble or decompile any portion of the Program or the Documentation or the source code thereof; or
d) Make any products derived from the Program or Documentation, except to the extent expressly permitted by applicable Australian law; or
e) Cause the Software Product to be in the possession of a third party to this Agreement.
Multiple copy use or installation is allowed only if you obtain an appropriate licensing agreement for each user and each copy of the Software Product.
2.3 Ownership
Creative Lighting or its licensor retains all rights, titles and interests in and to all Intellectual Property Rights in the Software Product and Documentation, and any derivative works thereof. You acknowledge that You do not acquire any Intellectual Property Rights, express or implied, in the Program and Documentation beyond the limited license set forth in this Agreement.
2.4 Intellectual Property Infringement.
If You become aware of any infringement or suspected infringement by any third party of any Intellectual Property Rights in the Software Product or Documentation, You must immediately notify Creative Lighting and must, at the request of Creative Lighting, take such action as Creative Lighting may reasonably deem appropriate to protect its Intellectual Property Rights. If You become aware of any actual or potential claim which may be made against Creative Lighting or You, alleging that the Software Product or Documentation infringes any third party's Intellectual Property Rights, You must immediately notify Creative Lighting of that claim, and do all reasonable things or take any necessary action, at the request of Creative Lighting, to defend that claim.
2.5 No Support.
Creative Lighting has no obligation to provide support, maintenance, upgrades, modifications or new releases ("Upgrades") for the Program or Documentation under this Agreement. However if Upgrades are provided by Creative Lighting, the use of such Upgrades is governed by this Agreement and is subject to the licence and restrictions in this clause 2, unless different terms accompany the relevant Upgrades in which case those terms will apply.
2.6 Use of upgrades.
To use a Software Product identified by Creative Lighting as an upgrade, you must first be licensed for the original Software Product identified by Creative as eligible for the upgrade. After upgrading, you may no longer use the original Software Product that formed the basis for your upgrade eligibility and the upgraded software shall be deemed the "Software Product".
3. WARRANTY DISCLAIMER
TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THE PROGRAM AND DOCUMENTATION ARE PROVIDED WITHOUT ANY REPRESENTATIONS OR WARRANTIES, AND YOU AGREE TO USE THEM AT YOUR SOLE RISK. NOTHING IN THIS AGREEMENT EXCLUDES, RESTRICTS OR MODIFIES ANY RIGHT OR REMEDY, OR ANY GUARANTEE, WARRANTY OR OTHER TERM OR CONDITION IMPLIED OR IMPOSED BY LEGISLATION WHICH CANNOT BE LAWFULLY BE EXCLUDED OR LIMITED (EACH A "NON EXCLUDABLE PROVISION"). SUCH LEGISLATION INCLUDES THE AUSTRALIAN CONSUMER LAW WHICH CONTAINS GUARANTEES THAT PROTECT THE PURCHASERS OF GOODS OR SERVICES IN CERTAIN CIRCUMSTANCES. SUBJECT TO CREATIVE LIGHTING'S OBLIGATIONS UNDER THE NON-EXCLUDABLE PROVISIONS AND TO THE FULLEST EXTENT PERMISSIBLE BY LAW, CREATIVE LIGHTING EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE PROGRAM AND DOCUMENTATION, WHETHER EXPRESS, IMPLIED, STATUTORY, OR ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, TITLE OR NON-INFRINGEMENT.
4. DAMAGES AND REMEDIES FOR BREACH
You agree that any breach of this Agreement's restrictions would cause Creative Lighting irreparable harm for which money damages alone would be inadequate. In addition to damages and any other remedies to which Creative Lighting may be entitled, You agree that Creative Lightings may seek injunctive relief to prevent the actual, threatened or continued breach of this Agreement.
5. TERMINATION
This Agreement is effective until terminated. Creative Lighting may terminate this Agreement at any time upon Your breach of any provision. If this Agreement is terminated, Your licence to use the Program and the Documentation will immediately terminate and You must stop using the Program, permanently delete it from the equipment where it resides, and destroy all copies of the Program and Documentation in Your possession, confirming to Creative Lighting in writing that You have done so. Sections 2.2, 2.3, 2.4, 2.5, 2.6, 3, 4, 5 and 6 will continue in effect after this Agreement's termination. Any termination of this Agreement is without prejudice to any right, action or remedy which has accrued or which may accrue in favour of Creative Lighting.
6. GENERAL TERMS
6.1 Law.
This Agreement and all matters arising out of it are governed by the laws of Queensland, Australia, and the parties irrevocably consent to the exclusive jurisdiction and venue in the courts of that State and the Commonwealth of Australia. Application of the United Nations Convention on Contracts for the International Sales of Goods is expressly excluded.
6.2 Limitation of Liability.
Subject to the obligations of Creative Lighting under the Non-excludable Provisions and to the fullest extent permissible by law, neither Creative Lighting or its subsidiaries nor Creative Lighting's suppliers will be liable (whether in contract, negligence or anything else) to You or to any third party:
(a) for any inability to use any third party equipment or access to data, for loss of or corruption of data, loss of business, loss of profits, loss of revenue and anticipated savings, business interruption or the like (whether such loss or damage is direct or indirect); or
(b) for any indirect, incidental, punitive, special, or consequential loss or damage whatsoever, in each case, arising out of the use or inability to use the Software Product or Documentation , even if Creative Lighting has been advised of the possibility of such damages or if such damages are foreseeable. Subject to the obligations of Creative Lighting under the Non-excludable Provisions and to the fullest extent permissible by law, in no event will Creative Lighting's liability for all damages exceed the amounts actually paid by You to Creative Lighting for the Program. To the fullest extent permitted by law, the liability of Creative Lighting for a breach of a Non-excludable Condition is limited to:
(1) in the case of the supply of goods:
(i) replacement of the goods;
(ii) supply of equivalent goods;
(iii) repair of the goods;
(iv) payment of the cost of replacing the goods or of acquiring equivalent goods; or
(v) the payment of the cost of having the goods repaired; and
(2) in the case of the provision of services:
(i) the supplying of the services again; or
(ii) payment of the cost of having the services supplied again.
Notwithstanding this clause 6.2 or anything else contained in this Agreement, neither party's liability for death or personal injury resulting from its own negligence shall be limited.
6.3 Indemnity.
You indemnify, defend and hold harmless Creative lighting in respect of all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal fees on a full indemnity basis), in connection with any of the following:
(a) any breach of this Agreement by You;
(b) Your negligent acts or omissions; or
(c) Your use of the Program, including any third party claims made in connection with, or arising out of, Your use of the Software Product and Documentation.
6.4 Severability and Waiver.
If any provision of this Agreement is held to be illegal, invalid or otherwise unenforceable for any reason, then where such provision can be read down as to give it a valid and enforceable operation of a partial nature it must be read down to the extent necessary to achieve that result; and in any other case, such provision must be severed from this Agreement in which event the remaining provisions will continue in full force and effect as if the severed provision had not been included. The waiver by either party of any default or breach of this Agreement will not waive any other or subsequent default or breach.
6.5 No Assignment.
You must not assign, sell, transfer, delegate or otherwise dispose of this Agreement or any rights or obligations under it, whether voluntarily or involuntarily, by operation of law or otherwise, without Creative Lighting's prior written consent. Any purported assignment, transfer or delegation by You will not be effective. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns. You agree, represent and warrant that You will not export the Program or any underlying technology in contravention of any applicable U.S. or foreign export laws and regulations.
6.6 Entire Agreement.
This Agreement constitutes the entire agreement between the parties and supersedes allprior or contemporaneous agreements or representations, whether written or oral, concerning its subject matter. This Agreement may not be modified or amended without Creative Lighting's prior and express written consent, and no other act, document, usage or custom will be deemed to amend or modify this Agreement.