*** IMPORTANT INFORMATION – PLEASE READ CAREFULLY ***
This agreement (the “Agreement”) is a legally binding document between you (meaning the individual person, or the entity that the individual represents (the “Customer”) and CRYPTOPHOTO (which means CRYPTOPHOTO.COM PTY. LTD).
This Agreement relates to the supply by CRYPTOPHOTO of software ("the Software"), hardware ("the Hardware") and associated documentation ("the Documentation") and services (" the Services"). In this Agreement, the Software, Hardware, Documentation and Services are collectively referred to as "the System". The System includes computer programs and other proprietary material and information, the use of which is subject to and expressly conditioned upon acceptance of this Agreement.
The System (or any part of it) is provided to Customer for its internal productive use and not for outright resale. Unless CRYPTOPHOTO agrees otherwise in writing, this Agreement governs Customer's use of the System, except to the extent all or any portion of the System is: (a) the subject of a separate written agreement set forth in a quotation issued by CRYPTOPHOTO which expressly states that it prevails over this Agreement to the extent of any inconsistency; or (b) governed by a third party Licencor’s terms and conditions. Capitalised terms have the meaning stated in this Agreement.
By signing a hardcopy of this Agreement, or clicking on the “Agree” or “Accept” or similar button at the end of this Agreement, or proceeding with the installation, download, use or reproduction of the System, or authorizing any other person to do so, you are representing to CRYPTOPHOTO that you are (i) authorised to bind the Customer; and (ii) agreeing on behalf of the Customer that the terms of this Agreement shall govern the relationship of the parties with regard to the subject matter in this Agreement and are waiving any rights, to the maximum extent permitted by applicable law, to any claim anywhere in the world concerning the enforceability or validity of this Agreement.
If you do not have authority to agree to the terms of this Agreement on behalf of the Customer, or do not accept the terms of this Agreement on behalf of the Customer, click on the “Cancel” or “Decline” or other similar button at the end of this Agreement and/or immediately cease any further attempt to install, download or use the System for any purpose, remove any partial or full copies made from the Software, and return any Hardware to CRYPTOPHOTO.
A. “Affiliate” means a legal entity that is controlled by, controls, or is under common “control” of CRYPTOPHOTO or Customer. “Control” means more than 50% of the voting power or ownership interests.
B. “Confidential Information” means and includes the terms of this Agreement, the Software and all confidential and proprietary information of CRYPTOPHOTO, including without limitation, all business plans, product plans, financial information, software, designs, and technical, business and financial data of any nature whatsoever but excludes information which:
a. at the time of the first disclosure, such information was in the lawful possession of Customer;
b. is in or comes into the public domain otherwise than by a disclosure in breach of this Agreement or an obligation of confidence owed to any person; or
c. Customer acquires such information from a third party entitled to disclose it.
C. “Distributor” means a reseller, distributor, system integrator, service provider, independent software vendor, value-added reseller, OEM or other partner that is authorised by CRYPTOPHOTO to licence Software to end users. The term shall also refer to any third party duly authorised by a Distributor to licence Software to end users.
D. “Documentation” means the then-current, generally available, written user manuals and online help and guides for Systems provided by CRYPTOPHOTO.
E. “Hardware” means the hardware product that the Software is incorporated in or bundled with and sold as a unit and all Documentation for the foregoing.
F. “Product Notice” means the notice by which CRYPTOPHOTO informs Customer of product-specific use rights and restrictions, warranty periods, warranty upgrades and maintenance (support) terms.
G. “Quote(s)” means one or more documents issued by CRYPTOPHOTO specifying the Systems that Customer seeks to obtain from CRYPTOPHOTO, the related pricing and sufficient other information to complete the transaction. Each Quote shall incorporate this Agreement by reference.
H. “Service Level Agreement(s)” means one or more documents which may be issued by CRYPTOPHOTO with a Quote, and explicitly referenced by that Quote, and specifying the percentage of payment in that Quote that shall be refunded to the customer should the service levels which are defined within that Service Level Agreement not be met.
I. “Service(s)” means Software as a Service, and any duty or labour performed by CRYPTOPHOTO for Customer.
J. “Software” means the CRYPTOPHOTO software product which requires acceptance of this Agreement, and any copies made by or on behalf of Customer and all Documentation for the foregoing.
2. Licence Terms
A. General Licence Grant. Subject to Customer’s compliance with this Agreement, the Product Notice, and payment of all licence fees (if applicable), CRYPTOPHOTO grants to Customer a non-exclusive and non-transferable (except as otherwise permitted herein) licence (with no right to sublicence) to use (i) Software for Customer’s internal business purposes; and (ii) the Documentation for the purpose of supporting Customer’s use of Software or Hardware. Licences granted to Customer shall, unless otherwise indicated on the Product Notice or a quote from CRYPTOPHOTO or Distributor will commence on delivery of the physical media or the date Customer is notified of electronic availability or the date Customer obtains or is provided with access credentials, as applicable and whichever is earlier. Documentation is licenced solely for purposes of supporting Customer’s use of Software or Hardware as permitted by this Agreement. To the extent applicable to Software, Customer may be required to follow CRYPTOPHOTO’s then current product registration process, if any, to obtain and input an authorization key or licence file.
B. Licencing Models. Software is licenced for use only in accordance with the commercial terms and restrictions of the Software’s relevant Licencing model, which are stated in the Product Notice and/or quote from CRYPTOPHOTO or Distributor.
C. Licence Restrictions. All Software licences granted herein are for use of object code only. Customer is permitted to copy Software as necessary to install and run it in accordance with the licence, but otherwise for back-up purposes only. Customer may copy Documentation insofar as reasonably necessary in connection with Customer’s authorised internal use of Software. Customer shall not, without CRYPTOPHOTO’s prior written consent (i) use Systems in a service bureau, application service provider or similar capacity; or (ii) disclose to any third party the results of any comparative or competitive analyses, benchmark testing, or analyses or scrutiny of Systems performed by or on behalf of Customer or anyone else; (iii) make available Systems in any form to anyone other than Customer’s employees or contractors; (iv) transfer Systems to an Affiliate or a third party; or (v) for any Systems that is licenced with Hardware, use the Systems on any hardware other than the Hardware on which it was provided.
D. No Combination with Open Source Software. Some third party licence terms require that computer code be generally (a) disclosed in source code form to third parties, (b) licenced to third parties for the purpose of making derivative works, or (c) redistributable to third parties at no charge (collectively, “Excluded Licence Terms”). If CRYPTOPHOTO grants Customer the right to incorporate, modify, combine or distribute any of the Software licenced hereunder, then Customer shall not incorporate, modify, combine or distribute the Software with any other computer code in a manner that would subject the Software to Excluded Licence Terms.
E. Audit Rights. CRYPTOPHOTO (including its independent auditors) shall have the right to audit Customer’s usage of Software and Hardware to confirm compliance with the agreed terms. Such audit is subject to reasonable advance notice by CRYPTOPHOTO and will not unreasonably interfere with Customer’s business activities. Customer will provide CRYPTOPHOTO with the support required to perform such audit and will, without prejudice to other rights of CRYPTOPHOTO, address any non-compliant situations identified by the audit by forthwith procuring additional licences.
F. Termination. CRYPTOPHOTO may terminate licences for cause, if Customer breaches the terms governing use of Software or Hardware and fails to cure within thirty (30) days after receipt of CRYPTOPHOTO’s written notice thereof. Upon termination of a licence, Customer shall cease all use and return or certify destruction of the applicable Software and Hardware (including copies) to CRYPTOPHOTO.
G. Customer agrees that it will not reverse compile, reverse engineer, author alternative software to carry out functionality and/or concepts present in the Software, disassemble any part of the Software, create derivative works based upon the Software, or remove or tamper with any proprietary notices or labels on the Software or contain on or within its output.
H. End of Product Lifecycle. CRYPTOPHOTO reserves the right to cease to product or provide a System at the end of its product lifecycle as determined by CRYPTOPHOTO in its absolute discretion. CRYPTOPHOTO agrees to provide Customer with thirty (30) days' notice of any such cessation of a System, unless the Service Level Agreement expressly states another period.
I. Reserved Rights. All rights not expressly granted to Customer are reserved. In particular, no title to, or ownership of, the Software is transferred to Customer. Customer shall reproduce and include copyright and other proprietary notices on and in any copies of the Software. Unless expressly permitted by applicable mandatory law, Customer shall not modify, enhance, supplement, create derivative works from, reverse assemble, reverse engineer, decompile or otherwise reduce to human readable form the Software without CRYPTOPHOTO’s prior written consent, nor shall Customer permit any third party to do the same.
3. PRODUCT NOTICES
A. Product Notices may be delivered in a Quote, otherwise in writing and/or a posting on the applicable CRYPTOPHOTO website, currently located at http://www.cryptophoto.com/.
B. The terms of the Product Notice in effect as of the date of the CRYPTOPHOTO quote shall be deemed incorporated into a Quote requested by the Customer.
C. Each Product Notice is dated and is archived when it is superseded by a newer version.
D. CRYPTOPHOTO shall not change any Product Notice retroactively with regard to any Software listed on a Quote issued prior to the date of the applicable Product Notice.
E. At Customer’s request, CRYPTOPHOTO shall without undue delay provide Customer with a copy of the applicable Product Notice and/or attach it to the relevant Quote.
4. WARRANTY AND LIMITATION OF LIABILITY
A. CRYPTOPHOTO makes no express warranties to Customer except those expressly set out in this Agreement.
B. CRYPTOPHOTO excludes from this Agreement all conditions, warranties, guarantees and terms implied by statute or general law or custom except any implied condition or warranty the exclusion of which would contravene any statute or cause this clause to be void ("Non Excludable Warranty").
C. CRYPTOPHOTO's liability to Customer for a breach of any Non Excludable Warranty (except a Non Excludable Warranty implied by sections 51, 52 and 53 of Schedule 2 of the Competition and Consumer Act 2010 (Cth)) is limited at CRYTPOPHOTO's option to one of:
a. in respect of goods:
i. replacing the goods or supplying equivalent goods;
ii. repairing the goods;
iii. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
iv. the payment of the cost of having the goods repaired; and
b. in respect of services:
i. supplying the services again; or
ii. the payment of the cost of having the services supplied again.
D. Except to the extent that clause 4C applies, CRYPTOPHOTO will not be liable under any circumstances for, and Customer hereby releases CRYPTOPHOTO in respect of, any and all loss or damage suffered by Customer (including but not limited to any consequential loss, direct or indirect loss of profit, loss of income, loss of production, loss of actual or potential business opportunity or loss of goodwill), howsoever arising, as a result of this Agreement or the use of the Systems by any person, including, without limitation, where such losses arise as a result of CRYPTOPHOTO's negligence, breach of contract, tortious conduct or breach of statutory duty.
A. CRYTPOPHOTO takes pride in developing its Systems and takes all reasonable steps to ensure that the Systems minimise the chance of any security breach. Notwithstanding these steps, Customer acknowledges and agrees that:
a. the Systems cannot protect against every security breach including without limitation hackers, data theft, computer bugs, glitches, viruses, trojan horses, physical breaches, and other threats;
b. Customer should use the Systems in conjunction with (and not in place of) additional security precautions which may include but are not limited to passwords, PINs, anti-virus software, backups, appropriate fraud detection and recovery measures, intrusion detection, firewalls, physical server access restrictions; and
c. it is Customer's responsibility to ensure that the Systems and all operating system, firmware, system utility and patch levels are kept up to date to the levels recommended by CRYPTOPHOTO.
B. Customer may not engage any third parties to conduct security audits of the Systems without the prior written agreement of CRYPTOPHOTO.
6. CLASS ACTION WAIVER
A. Customer agrees not to bring or participate in any class action against CRYPTOPHOTO.
7. EVALUATION SOFTWARE
A. This Agreement shall also apply to “Evaluation Software”, meaning the copy of Software which is licenced by Customer for a limited duration for the specific purposes of evaluation prior to making a final decision on procurement including any copies made by or on behalf of Customer, and all Documentation for the foregoing.
B. The particular Evaluation Software, period of use, installation site and other transaction-specific conditions shall be as mutually agreed between CRYPTOPHOTO and Customer and recorded in the form of an evaluation or loan schedule.
C. Notwithstanding any deviating terms in this Agreement, all licences for Evaluation Software expire at the end of the evaluation or loan period.
D. Customer shall return Evaluation Software and any Hardware used with such Evaluation Software at the end of the evaluation or loan period or when sooner terminated by CRYPTOPHOTO for convenience by giving thirty (30) days’ written notice, whichever occurs first. Customer shall bear the risk of loss and damage for return of physical media, if any, and de-installation.
E. Unless otherwise specifically agreed in writing by CRYPTOPHOTO, CRYPTOPHOTO does not provide maintenance or support for any Evaluation Software. CUSTOMER RECOGNIZES THAT EVALUATION SOFTWARE MAY HAVE DEFECTS OR DEFICIENCIES WHICH CANNOT OR MAY NOT BE CORRECTED BY CRYPTOPHOTO. CRYPTOPHOTO shall have no liability to Customer for any action (or any prior related claims) brought by or against Customer alleging that Customer’s sale, use or other disposition of any Evaluation Software infringes any patent, copyright, trade secret or other intellectual property right. In event of such an action, CRYPTOPHOTO retains the right to terminate this Agreement and take possession of the Evaluation Software and Hardware. THIS SECTION STATES CRYPTOPHOTO’S ENTIRE LIABILITY WITH RESPECT TO ALLEGED INFRINGEMENTS OF INTELLECTUAL PROPERTY RIGHTS BY EVALUATION SOFTWARE OR ANY PART OF IT OR ITS OPERATION.
A. Obligations. Customer will use Confidential Information only for the purpose for which it was disclosed or for the benefit of CRYPOPHOTO, and will use reasonable care to avoid disclosure of the Confidential Information other than to Customer’s:
(i) employees and employees of an Affiliate; or
(ii) subcontractors, financial and legal advisors, and then only to those who have a need to know.
Before disclosure of Confidential Information to any party in (i) or (ii) above, Customer must have a written agreement with such party sufficient to require that party to treat the disclosed Confidential Information on substantially the same terms as described in this Agreement.
If required to disclose Confidential Information by law or court order, Customer will endeavour to give CRYPTOPHOTO prompt notice to allow CRYPTOPHOTO a reasonable opportunity to obtain a protective order.
9. GOVERNMENT REGULATIONS AND EXPORT CONTROL
Customer shall comply with relevant Export Laws and CRYPTOPHOTO export policies to the extent such policies are made available to Customer by CRYPTOPHOTO. Diversion contrary to U.S. law or other Export Laws is expressly prohibited.
Either Customer or CRYPTOPHOTO may terminate this Agreement upon written notice due to the other party’s material breach of the terms governing use of the Systems; provided that such breach is not cured within thirty (30) days after the provision of written notice to the breaching party specifying the nature of such breach. Upon termination of this Agreement, Customer shall cease all use and, at CRYPTOPHOTO's election, return to CRYPTOPHOTO or certify destruction of the applicable Systems (including copies) and any Confidential Information. Any provision that by its nature or context is intended to survive any termination or expiration, including but not limited to provisions relating to payment of outstanding fees, confidentiality and liability, shall so survive.
A. References. CRYPTOPHOTO may identify Customer for reference purposes unless and until Customer expressly objects in writing
B. Notices and Language. Any notices permitted or required under this Agreement shall be in writing, and shall be deemed given when delivered (i) in person, (ii) by overnight courier, upon written confirmation of receipt, (iii) by certified or registered mail, with proof of delivery, (iv) by facsimile transmission with confirmation of receipt, or (v) by email, with confirmation of receipt (except for routine business communications issued by CRYPTOPHOTO, which shall not require confirmation from Customer). Notices shall be sent to the address, facsimile number or email address set forth below, or at such other address, facsimile number or email address as provided to the other party in writing. Notices shall be sent to: CRYPTOPHOTO.COM PTY. LTD., PO Box 988, Noosa, Queensland, 4567 or email@example.com. The parties agree that this Agreement has been written in the English language, that the English language version shall govern and that all notices shall be in the English language.
C. Entire Agreement. This Agreement, along with the Quote, if any, and any Service Level Agreement explicitly referenced by that Quote (i) is the complete statement of the agreement of the parties with regard to the subject matter hereof; and (ii) may be modified only by a writing signed by both parties. All terms of any purchase order or similar document provided by Customer, including but not limited to any pre-printed terms thereon and any terms that are inconsistent or conflict with this Agreement, shall be null and void and of no legal force or effect; and (iii) in the case of any conflict between this Agreement and the Quote or Service Level Agreement, this Agreement shall prevail unless the Quote or Service Level Agreement expressly states otherwise.
D. Force Majeure. Except for the payment of fees, if any, due to CRYPTOPHOTO from Customer, neither party shall be liable under this Agreement because of a failure or delay in performing its obligations hereunder on account of any force majeure event, such as strikes, riots, insurrection, terrorism, fires, natural disasters, war, governmental action, or any other such cause which is beyond the reasonable control of such party.
E. Assignment. Customer shall not assign this Agreement or any right or delegate any performance without CRYPTOPHOTO’s prior written consent, which consent shall not be unreasonably withheld. Customer shall promptly notify CRYPTOPHOTO, and CRYPTOPHOTO may terminate this Agreement on thirty days’ notice, if Customer merges with or is acquired by a third party or otherwise undergoes a change of control.
F. Governing Law. To the maximum extent permitted by law, this Agreement is governed by the laws of the State of Queensland, Australia and you hereby consent to the exclusive jurisdiction and venue of the courts in Queensland, Australia in all disputes arising out of or relating to this Agreement or contract or activities that the parties will be engaging in as part of the transaction contemplated by the agreement or contract. Where the dispute is within the jurisdiction of the Magistrates Court of Queensland, the parties agree that the dispute will be heard in the Magistrates Court in Noosa, Queensland, Australia. And if the dispute is not within the jurisdiction of the Magistrates Court of Queensland but in the jurisdiction of a court in Brisbane, Queensland, Australia, then the dispute shall be heard in Brisbane, Queensland, Australia.
G. In each case, the applicability of laws shall exclude any conflict of law rules. The U.N. Convention on Contracts for the International Sale of Goods shall not apply.
H. Waiver. No waiver shall be deemed a waiver of any prior or subsequent default hereunder.
I. Partial Invalidity. If any part of this Agreement, a Quote or Service Level Agreement is held unenforceable, that part shall be severed and the validity of the remaining provisions shall not be affected.
12. TRADEMARK AND USAGE GUIDE
The SECURED BY CRYPTOPHOTO logo ("Logo") has been designed as an indicator that the customer is using the System. It is designed for web and print use and is not intended to be a substitute for the corporate logo or for use in locations other than the web pages or promotional material of persons who are using the System. Nor is the Logo to be used as a substitute for the corporate logo in places where the Customer corporate logo is appropriate. The Logo consists of the CRYPTOPHOTO brick and the words SECURED BY. These two components should not to be separated or changed.
Logo files may be obtained from http://cryptophoto.com/legal/logos/.
In Customer applications, the Logo is to be seen only as a third-party mark that indicates the security features of the Customer’s web site.
Therefore the following restrictions apply to use of the Logo:
(i) The Logo may not be enclosed by the Customer’s logo or other artwork so as to appear to be part of the Customer’s logo.
(ii) The Logo may be placed adjacent to the Customer’s logo or other artwork as long as there is sufficient empty (white) space between the two logos. Sufficient space online is defined as 20 pixels in any direction from the outer edges of the Logo. Sufficient space in print is defined as 1 centimetre in any direction from the outer edges of the Logo.
(iii) Customer will comply with all directions of CRYPTOPHOTO in relation to the Logo.
(iv) CRYPTOPHOTO may, in its absolute discretion, demand that Customer ceases use of the Logo at any time.
Customer will not display the Logo when the System is not in use.
Customer will not place the Logo where it might confuse customers if they cannot use or choose the CRYPTOPHOTO system.
Reference: 20160209 v1.1
Terms of Service in a PDF document (https://cryptophoto.com/legal/20160209 CryptoPhoto Terms of Service (v1.1).pdf): The text on this web page and in the PDF document should be identical, but if they are not, then the PDF document is authoritive.
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