I. A
FUTURE CORPORATION PTY. LTD. (HEREAFTER “FUTURE CORPORATION”, “OUR”, “OURS”, “US”,
OR “WE”) AND YOU AND/OR THE LEGAL ENTITY (I) YOU HEREBY REPRESENT; AND/OR (II)
INTENDS TO PURCHASE OR LICENSE GOODS FROM FUTURE CORPORATION (REFERRED
COLLECTIVELY HEREIN AS “YOU” OR “YOUR”) AGREE THAT THE PURCHASE OR LICENSING OF
(I) FUTURE CORPORATION HARDWARE PRODUCTS (HEREAFTER “HARDWARE”); AND (II)
FUTURE CORPORATION SOFTWARE PRODUCTS (HEREAFTER “SOFTWARE”); AND (III) FUTURE
CORPORATION HARDWARE AND/OR SOFTWARE SERVICES AND SUPPORT (HEREAFTER
“SERVICES”); AND (IV) THIRD PARTY SOFTWARE PRODUCTS (HEREAFTER “3RD PARTY
SOFTWARE”) ARE MADE UNDER THESE TERMS AND CONDITIONS, AND THAT FUTURE
CORPORATION SHALL NOT BE BOUND BY YOUR, ANOTHER OR 3RD PARTY'S ADDITIONAL OR
DIFFERENT TERMS.
II. IMPORTANT: TO THE EXTENT PERMITTED BY APPLICABLE
LAW, FUTURE CORPORATION'S ACCEPTANCE OF YOUR: (I) APPLICATION OR ORDER TO
PURCHASE OR TO LICENSE; AND/OR (II) PURCHASE OR LICENSE OF: HARDWARE, SOFTWARE,
3RD PARTY SOFTWARE AND/OR SERVICES (REFERRED COLLECTIVELY HEREIN AS “GOODS”)
SHALL CONSTITUTE YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS AS SET FORTH
HEREIN; AND (A) YOU HEREBY ACKNOWLEDGE AND AGREE WITH FUTURE CORPORATION THAT
THIS AGREEMENT IS LIKE ANY NEGOTIATED WRITTEN AGREEMENT SIGNED BY YOU; AND (B)
THAT THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND/OR THE LEGAL ENTITY THAT
MAKES APPLICATION AND/OR ORDERS AND/OR PURCHASES OR LICENSES ANY GOODS FROM
FUTURE CORPORATION.
III. AGREEMENT
IRREVOCABLE: YOUR
OBLIGATIONS UNDER THIS AGREEMENT ARE ABSOLUTE, NON CANCELLABLE AND SHALL
CONTINUE WITHOUT ABATEMENT AND REGARDLESS OF ANY DISABILITY OF YOURS TO USE THE
GOODS OR ANY PART THEREOF FOR ANY REASON INCLUDING, BUT NOT LIMITED TO WAR, ACT
OF GOD, PANDEMIC, GOVERNMENTAL REGULATIONS, STRIKE, LOSS, DAMAGE, DESTRUCTION,
OBSOLESCENCE, FAILURE OF OR DELAY IN DELIVERY, REPAIR OR MAINTENANCE,
UNAVAILABILITY OF PARTS OR SUPPLIES, FAILURE OF THE GOODS TO OPERATE PROPERLY,
TERMINATION BY OPERATION OF LAW, YOUR CHANGE OF MIND OR CHANGE IN YOUR PERSONAL
CIRCUMSTANCES, OR ANY OTHER CAUSE.
THIS
AGREEMENT INCLUDES THE FOLLOWING
1.
TERMS AND DEFINITIONS
2. NOTICE SPECIFIC TO THE SOFTWARE
3. SALES OF GOODS AND LICENSING
4. LIMITED WARRANTY
5. NO LIABILITY
6. LIMITED INDEMNITY AGAINST INFRINGEMENT
7. SERVICES
8. GENERAL & TECHNICAL SUPPORT
9. GOVERNING LAW
10. TERMINATION
11. GENERAL PROVISIONS
12. LINKS TO FUTURE CORPORATION LEGAL DOCUMENTS & SUPPORT
1. TERMS AND DEFINITIONS
1.1
Words importing the singular number shall include the plural and vice versa; and,
1.1.2
Words importing any gender shall include all other genders; and words importing
persons include individuals, sole proprietors, partnerships, companies,
corporations (public or private), all government bodies and departments
including the armed and covert forces, trusts and unincorporated associations,
businesses, organisations, and all other legal entities; and,
1.1.3
Unless expressly stated otherwise all words herein shall be given their
ordinary or plain meaning according to the Australian Oxford English dictionary
at such date this Agreement is executed by the parties including any words
using United States spelling conventions; and,
1.1.4
References in this Agreement to Sections are to sections in this Agreement
except where otherwise expressly stated; and,
1.1.5
Numbered Headings (as described in Section 1.2 below), excluding those words
referred to in section 1.1.6 (below), are used in this Agreement for the
convenience of the Parties only and shall not be incorporated into this
Agreement and shall not be deemed to be any indication of the meaning of the
Clauses or Sections to which they relate; and,
1.1.6
For the purposes of section 1.1.5 (above) Numbered Headings hereby excludes all
those words contained within inverted commas (“”) or in parentheses (),
italicised or bolded; and,
1.1.7
To avoid any doubt those words contained within inverted commas (“”) or
in parentheses (), italicised or bolded that are not Numbered Headings are
included in and form part of this Agreement.
1.2 IN THIS AGREEMENT UNLESS EXPRESSLY STATED OTHERWISE THE
FOLLOWING WORDS, GROUPING OF WORDS OR PHRASES SHALL HAVE THE FOLLOWING MEANING:
“Academic License”
means a restricted version of the Software license which is only sold to a
qualifying and registered academic institution regardless of the payment
method.
“Account” and
“Account Holder” means your unique registration with Future Corporation and
its Affiliates within a Customer Portal to securely store and manage your
details under the Terms and Conditions of Sale and Privacy Notice (see section
9 below) published on our website, and any software products you may have
licensed with us.
“Activation
Number” means
the unique number used to Activate the Software to operate in a restricted or
unrestricted state.
“Affiliate” means
any corporation, company, or other entity that directly or indirectly sells
Future Corporation software licenses under Agreement between the parties.
“Antivirus
software” means
a computer program that attempts to identify, neutralise, or eliminate a wide
range of threats to a computer or device, including but not limited to (i)
malware, (ii) worms, (iii) phishing attacks, (iv) rootkits, and (v) Trojan
horses or any other type of similar, related, or malicious software.
“Apple” means
Apple Inc. of One Apple Park Way, Cupertino, CA
95014-0642, United States.
“Apple
computer” means
iMac, MacBook (Air/Pro), Mac mini and Mac Studio, which is manufactured,
supplied and/or sold by Apple Computer Inc. or its Authorised or Licensed
Dealers that runs MacOS, and to avoid any doubt does not include Apple
Watch, G3, G4, G5, iBook, iPad or iPhone computers or devices (see MacOS
below for its meaning).
“Authorised
Dealer” means
an individual or a business (incorporated or otherwise) that has been approved
and authorised by Future Corporation under a separate agreement to carry (store
or stock) the Software to promote, support and sell it to end-users.
“Circumvent” means
(i) to deliberately, utilising any means, work-around or bypass and/or
eliminate (successfully or otherwise) the Software’s built-in (programmed)
mechanisms that are intended to prevent its unlicensed, unauthorised or
unlawful use to prevent the Software’s unlicensed, unauthorised or unlawful
use; and/or (iii) to interfere with the Software’s programming code and/or
secret mechanisms using an individual's skills and/or another program, utility,
script or device, commonly known as "Reverse Engineering",
"Cracking" or "Hacking", in an attempt (successful or
otherwise) to either remove, work-around or bypass the Software’s built-in
(programmed) or hardware (security device) mechanisms that is intended to
prevent the software's unlicensed, unauthorised or unlawful use.
“Club
Membership” means Subscription Software for the purposes of this
Agreement (see below).
“CNC
Machine” means
an electronic device that uses a rotary bit, blade or tool, a laser, a plasma,
a water jet or similar, to follow a tool path via numerical control to cut,
gouge or score a wide variety of substrates and/or materials and does not
include every make and model of CNC machine manufactured or currently available,
and to avoid any doubt Future Corporation does not warrant support for
any specific make or model of CNC machine;
“Compatible
computer” means
either an Apple computer or an IBM compatible computer for the purposes of this
Agreement and where the software specifically states as part of its published
specification on its website that it is compatible with (a) an Apple computer
only, or (b) an IBM compatible computer only, or (c) compatible with both an
Apple and an IBM compatible computer.
“Component” means
a separate and identifiable part of the Software that may be obtained
separately for a fee, or at no charge as described in the Software’s
documentation that seamlessly integrates with the Software and is typically
referred to as a plugin, snap-in or module.
“Computer” means
an electronic device that accepts information in digital or similar form and
manipulates it for a specific result based on a sequence of instructions and is
(a) compliant and (b) compatible with Future Corporation's software protection
measures and computer identification mechanism as set out herein.
“Content
Files” means the animations, artistic works and samples, audio,
charts, clipart, data, gradients, fonts (in all formats), illustrations,
images, internal graphics and works, sample and stock photographs, sample
files, sounds, templates, text, textures, video and all other similar works
bundled (included) with the Software and/or available online at no charge, or
for a fee, and are provided for demonstration and training purposes with the
Software. To avoid any doubt Corporate Logos do not mean and are not
Content Files.
“Copy” with
respect to the Software means one (1) instance of the Software that is
installed onto one (1) hard disc drive that is permanently affixed and/or
exclusively used in one (1) computer; and does not mean a removable or
transportable hard disc drive that is used as a start-up drive on more than one
(1) computer.
“Credit-Card” means
a payment device lawfully issued to the bearer by a Major credit card company
including all debit cards, digital wallet, and any other payment method that is
accepted by Future Corporation and its Affiliates.
“Customer
Number” means
Product Serial Number for the purposes of this Agreement (see below).
“Customer
Portal” means
a private and secure gateway to a collection of services, access to and control
over the information you provide to Future Corporation or its Affiliates,
software downloads and other services accessible over the Internet through a
web browser and/or the Software.
“Day” or “Days” means
consecutive calendar days and does not exclude weekend days, or any: public,
bank and government sanctioned public holidays with each day concluding
precisely at 4:00PM AEST and any time thereafter considered the following day
for the purposes of this Agreement.
“Delphi” means
a computer programming language, more specifically a branch of object-oriented
derivatives of Pascal.
“Documentation” means
any accompanying printed materials, Software License, and any other Agreement
you may have with Future Corporation relating to the Software, and online
(Future Corporation Internet sites); or its electronic equivalent.
“Expert” means
an individual or individuals who comply with the experience and/or tertiary
qualifications as required under the Software License Agreement to provide
sworn testimony in the event of a dispute between the parties hereto in a court
of competent jurisdiction, to assist the court if required.
“First
user” means
the individual or legal entity that first licensed the Software from Future
Corporation or its Affiliate.
“Full License” means an unrestricted version of the
Software license which is sold without the requirement of a prequalifying
condition, such as academic, student, teacher, a lower level, or an earlier
version of the Software (Upgrade) regardless of the payment method. To
AVOID DOUBT Full License does not mean Perpetual License
only unless the Software License is paid in full upfront with cleared funds
and is not paid as Instalment or Subscription Software.
“Future
Corporation” means a Future Corporation Pty. Ltd. A.C.N. 078 538
022 of Unit 43, 328 Reserve Rd, Cheltenham VIC. 3192 Australia.
“Future
Corporation and its Affiliates” means a collective group of
parties including (i) Future Corporation and (ii) any third party referred to
herein as an Affiliate (Authorised Dealer).
“Hard
disc drive” or “HDD” (Internal or External) means any disc or
media regardless of kind or type that can have the Software copied or installed
onto it for use in or with a computer or device.
“Hardware
Serial Number” means a unique number affixed to a device sold with
OEM Software that may be used to identify that device and any rights to the
Software.
“Help” means
the printed and/or electronic documentation provided by Future Corporation with
the Software and/or online and does not mean email, facsimile, telephone or
technical support, training, or assistance.
“IBM
compatible computer” means any computer that can run Microsoft
Windows but excludes all Apple and Chromebook computers (see Windows
below for its meaning).
“In
writing” from
Future Corporation which appends or modifies this agreement means a written
document signed by the C.E.O., a director, a vice president, or a senior
executive of Future Corporation that is duly authorised to represent Future
Corporation for such purposes.
“Install
Code” means
the unique number that identifies each computer and is required to Activate or
Register the Software.
“Instalment Software
or Pay Over Time Software” means a payment method
that allows you to pay for a Software license over a pre-set price and
number of months to own the license in full when the final payment is made
and cleared, unless cancelled (i) by the licensee, or (ii) for non-payment
by the licensee. To AVOID DOUBT Instalment Software is not
its own version of the Software, it refers to a payment method for any
qualifying Software product.
“Internal
Network” means
a private or proprietary network resource (Intranet) accessible only by
management, employees and individual contractors or subcontractors of a
specific corporation, company, business entity or government department or
body. Internal Network does not mean or include a global and/or public
network (Internet) or any portion thereof or any other network community open
to the public or other non-related corporations, such as membership or
subscription driven groups, trade or professional associations, public
associations, or forums and/or similar organizations or groups.
“Internet” means
the global computer network commonly referred to as the world wide web.
“License
Management Regime” means the system employed by Future
Corporation and the Software to manage the Software's Licensing on a computer.
“License
Remaining” means
the contiguous time remaining (usually reported in days) before the License
expires on a computer.
“License
Status” means
the current state of the Software License on a computer.
“License
Type” means
the method of payment for the Software License.
“Life”, “Life
Cycle”
or “Life of the Product” means Product Life for the purposes of this
Agreement (see below).
“Machine
code”
or “Machine language” means a system of instructions and data directly
executed by a computer’s central processing unit.
“MacOS” means
Apple’s computer operating system software, namely: MacOS from 10.15 Catalina
through to and including MacOS 13 Ventura in all correctly installed (loaded)
variants and service packs or any version thereof for Apple computers but does
not include any other version or variant of MacOS, OS X, or Mac OS X and to
avoid any doubt does not include any future versions after MacOS 13
Ventura.
“Materials
and workmanship” means the Software’s physical: (i) media (including
but not limited to discs and the hardware security device), (ii) written
(printed) materials, (iii) packaging, and (iv) any other similar materials but
does not refer or relate to the Software program and/or its components, extras,
plug-ins, snap-ins, modules or its code, or any online services. Materials and
workmanship does not mean or include the quantity or quality of the
Software or its code, its fitness for purpose or merchantability.
“Microsoft” means
Microsoft Corporation Inc. of 1 Microsoft Way, Redmond, WA 98052-6399 United
States.
“Module” means
Component for the purposes of this Agreement (above).
“Month” or “Months” means
consecutive calendar months and does not exclude weekend days, or any: public,
bank and government sanctioned public holidays within such month or months.
“MSRP” means
Manufacturer’s Suggested Retail Price abbreviated to MSRP and has the same
meaning as: Recommended Retail Price or RRP, or the list price.
“Numbered
Headings” means
a word or group of words within this Agreement that are immediately preceded by
a numeric value which is the consecutive decimalized number to those numbers that
have come before it in preceding sections and does not include alpha, roman or
other numerals which may appear within and throughout the various sections of
this Agreement.
“Online” means
access to and/or interaction with the global computer network commonly referred
to as the Internet or world wide web via a computer or other device whether it
be unrestricted or otherwise.
“Operating
System” means
an interface between a computer user and computer hardware. An operating system
is a software which performs all the basic tasks like file management, memory
management, process management, handling input and output, and controlling
peripheral devices such as disk drives and printers.
“Opt-Out” means an
action of an Account Holder withdrawing their consent to receive any specific
or all Communications from Future Corporation or from sending statistical data
to Future Corporation.
“Original
Equipment Manufacturer” or “OEM” means a variation of the
Software that is exclusively included (bundled) and licensed by Future
Corporation with a piece of third-party equipment or hardware (machines and
devices) including but not limited to: CNC, engraving, laser, plotting,
printing, routing, and vinyl cutting machines and devices by the manufacturer
and/or their agents and dealers to end-users.
“Output
File” means
a file in a Future Corporation proprietary or generic format that has been
created and saved and/or exported by the Software.
“Patch” means
Update for the purposes of this Agreement (see below).
“Permitted
Number” means
a single unit or one (1) unless otherwise indicated under a valid Volume
License granted by Future Corporation or one of its subsidiaries, authorised
Licensees or Dealers.
“Performance
Reporting” or “Performance Report” means the anonymous and
secure collection, storage, and periodic uploading to a remote server of
statistical information produced by the Software when in use.
“Perpetual” or
"Perpetual License” means a period of no more than four (4)
consecutive years from the commencement date of this Agreement and to avoid
doubt DOES NOT mean everlasting or forever.
“Plotter”
or
“Vinyl Cutter” means an electronic device that uses a pen or blade
to create drawings on a substrate or to cut out signage from an adhesive backed
vinyl or similar substrate and does not include every make and model of
plotter or vinyl cutter manufactured or currently available, and to avoid any
doubt Future Corporation does not warrant support for any specific make
or model of plotter or vinyl cutter, other than OEM devices it expressly
supports.
“Plugin” or
“Plug-in” means Component for the purposes of this Agreement (see
above).
“Possession
or Control” means (i) the effective ownership or
proprietorship of the Software License notwithstanding the legal ownership or
proprietorship thereof, and/or (ii) the effective ownership or
proprietorship of a computer or device notwithstanding the legal ownership or
proprietorship thereof that has any prior or actual relationship with, or to,
the Software.
“Printer” or
“Large/Wide Format Printer” means an electronic device that uses any
process/technology to print onto a substrate and does not include every
make and model of printer or large/wide format printer manufactured or
currently available, and to avoid any doubt Future Corporation does not
warrant support for any specific make or model of printer or large/wide
format printer, other than OEM devices it expressly supports.
“Product” means the
version of the Software licensed by Future Corporation under the terms of this
Agreement.
“Product
Life” means
the period from where a version of the Software is released for licensing to
the public (the current version) and remains current up until such time as a
subsequent or replacement version (Upgrade) is released for licensing to the
public (see Upgrade below).
“Product
Serial Number” or “PSN” means the unique and identifying
number for each Future Corporation Software product which incorporates a PSN and
does not relate to any Hardware product or item.
“Programming
language” means
a set of written instructions (and comments) that are used to develop and
create programs which control the behaviour of a computer or device.
“Published
functionality” means the functions (tools and features) each
variation or level of the Software includes as listed on the Software’s website
and it is the purchaser’s sole responsibility to make inquiries as to which
level is suitable for its needs.
“Reasonable
amount” means
for the purposes of section 5 (below) an amount only to the extent necessary to
resolve, or an attempt to resolve (successful or otherwise), a technical issue
pertaining or relating to the Software; and does not mean (i) a
guarantee, or (ii) a warranty, or (iii) a promise of any kind to permanently
resolve such technical issue.
“Registration
Number” has
the same meaning as Activation Number for the purposes of this Agreement (see
above).
“RRP” means MSRP
for the purposes of this Agreement (see above).
“Sample
File” means
a file in a Future Corporation proprietary or generic format that has been
created and saved and/or exported by Future Corporation or its Affiliates using
the Software.
“Security-1” or “S1” means
an extension, variation, or modification of the Software that (i) is for use
within a secured or protected internal network, and/or (ii) provides for
restricted user levels and access, and/or (iii) has built-in mechanisms to
track all access and use of the Software, and/or (iv) implements strong
encryption to protect Output and Export files.
“Snap-in” means
Component for the purposes of this Agreement (see above).
“Software
Development Kit” or “SDK” means a set of development tools provided
by Future Corporation that assists a software programmer to create components,
file format filters for Future Corporation Software and/or its components for
use with third party computer programs, utilities, or applications.
“Software” means
(i) computer software (including its compiled code), and/or (ii) a computer
program including plugins, snap-ins, modules and/or components (including their
respective code), and (iii) any modified versions and copies of, and upgrades,
updates and additions to the Software; and (iv) all of the information with
which the Software License Agreement is provided, including but not limited to
Future Corporation or third party software files and other computer information
but does not include the physical: (i) media (including but not limited
to discs and the hardware security device), (ii) written (printed) materials,
(iii) packaging, and (iv) any other similar materials.
“Software
Protection Measures” or “SPM” means various processes
(schemas) to protect Future Corporation Software from unauthorised or misuse.
These processes include but are not limited to: Activation, Authorisation,
Licensing, and/or Registration and are required to be correctly implemented for
the Software to fully operate.
“Strong
encryption” means a method of data encryption that is less
susceptible to having its key discovered by a third party through what is
commonly referred to as brute force attack, hacking or cracking.
“Student or Teacher License”
means a restricted version of the Software license which is only sold to (i)
enrolled students or (ii) registered teachers (academic practitioners) of a
qualifying and registered academic institution regardless of the payment
method.
“Subscription
Software” means a payment method for a Software license on an
indefinite monthly basis until cancelled (i) by the licensee, or (ii) for
non-payment by the licensee. To AVOID DOUBT Subscription
Software is not its own version of the Software, it refers to a payment
method for any qualifying Software product.
“Software
License Number” or “SLN” means the unique and identifying
number for each Future Corporation Software product which incorporates a SLN and
does not relate to any Hardware product or item.
“Subsidiary” means
Affiliate for the purposes of this Agreement (see above).
“Supervisor” and “Manager” means
an employee of Future Corporation who has a senior position within the company
and has been authorised by the C.E.O., a director, a vice president, or senior
executive of Future Corporation to represent Future Corporation for the tasks
as expressly set forth in this Agreement.
“Supplier” means
an individual, or a business, or a corporation which has and/or continues to
provide Future Corporation with any goods, intellectual property and/or
services to assist Future Corporation in designing, creating, producing, and
delivering the Software.
“Technical
support” means
the identification and attempted remedy (successful or otherwise) of an error,
bug or an unexpected circumstance pertaining or relating to the Software when
used in accordance with the Software's documentation, the Operating System and
directions from Future Corporation via email, user forums, knowledgebase,
online ticketing, facsimile, telephone and/or by any other appropriate means,
undertaken by an authorised Future Corporation representative; and does not
mean (i) training, or (ii) the consulting or consultation of the
applicability, suitability or otherwise of the Software, or any explanation of
how to use the Software or any other Software or Hardware product, or (iii) how
it is supposed to, or does function except to the extent to remedy a technical
matter and does not include assistance, advice or support of any third
party software, computer hardware, cutting or printing device, machine or any
related equipment that (i) is not functioning correctly or as it ordinarily
should, or (ii) is faulty, or (iii) is misconfigured, or (iv) is incapable of
working with the Software, or (v) is subject to malware, a virus, a Trojan or
otherwise malicious software or firmware.
“Update” means
a separate component of Software designed to update, modify, repair, remove or
fix problems identified by Future Corporation with the Software that includes
fixing bugs, replacing or removing tools and/or features and improving the
usability or performance of the Software (e.g. V1.0 of the Software may be
replaced with V1.1 of the Software, with V1.1 an update from V1.0, with V1.1
potentially followed by V1.2 and so on and so forth. Note, update increments
may not necessarily be in values of .1).
“Upgrade” means
the complete replacement of the Software with a newer version of the same
branded Software, that may include but is not limited to: error corrections,
modifications, removal and replacement of tools and features, compatibility
improvements, new tools and features, additions and/or enhancements to the
Software (e.g. V1.0 of the Software will be replaced with V2.0 of the Software,
with V2.0 an upgrade from V1.0, with V2.0 subsequently followed by V3.0 and so
on and so forth. Note, update increments may not necessarily be in values of
1).
“Upgrade License”
means an unrestricted version of the Software license which is only sold to
existing licensees of (i) a lower level of the same Software or (ii) an
earlier version of the same Software regardless of the payment method.
“USB
Drive” or
“USB Flash Disc/Drive” means Hard disc drive for the purposes of this
Agreement (see above).
“Use” means
the opening and/or installation (loading) of the Software with an Operating
System and its manipulation and/or exploitation on a computer or device by a
user.
“User” means
the individual or legal entity that is licensed to use the Software or has
effective control of the Software, which is referred to herein as “you” and/or
“your”.
“Valid
Credit Card” means credit card for the purposes of this Agreement
(see above).
“Validly
Received Order” means an order to purchase a software license via an
online cart or service where the information provided by the purchaser and the
payment method used is accepted prima facie as genuine and subsequently
processed and paid by a third party payment processor, including but not
limited to: AliPay, American Express, Cirrus, Delta, Digital River, Diners
Club, Discover Card, JCB, Maestro, MasterCard, PayPal, Stripe, Visa, Union Pay,
WeChat, Wire Card.
“Version” means
the numeric or alphanumeric value given to the Software license as each
subsequent edition is released for sale by Future Corporation and its
Affiliates at their absolute discretion and from time to time.
“Volume
License” means
either (i) a Site License granted in single licenses, or (ii) a License Pack
usually granted in multiples of five (5) five licenses, or (iii) License Seats
usually granted in multiples of one hundred (100) licenses.
“Windows” means
Microsoft’s computer operating system software, and for the purposes of this
Agreement means Windows: 11, 10, and 8.1 only, and excludes Windows: 8, 7,
Vista, XP, 2000, Me (Millennium), 98, 95, 3.X and all prior releases, versions,
and variants and to avoid any doubt does not include any future versions
of Windows after Windows 11.
“Written
notice” means
any method of delivering written advice to the recipient including but not
limited to (i) email, (ii) facsimile, (iii) post, (iv) courier, or (v) hand
delivery and if the written notice is delivered to the ordinary or registered
address of the recipient it does not require third party or independent
verification to effect legal notification.
“Year” or “Years”
means consecutive calendar years and does not exclude weekend days, or any:
public, bank and government sanctioned public holidays within such year or
years.
2. NOTICE SPECIFIC TO
THE SOFTWARE
2.1 SOFTWARE LICENSE: FUTURE CORPORATION
SOFTWARE IS LICENSED, NOT SOLD, AND ANY REFERENCE TO THE SALE OF, TRANSFER OF,
TITLE OF, OR THE SELLING OF THE SOFTWARE HEREIN OR ANYWHERE AT ANY FUTURE
CORPORATION INTERNET SITE OR WITHIN ANY PRICE MATERIALS SHALL BE CONSTRUED AS
THE GRANT OF A NONEXCLUSIVE LICENSE TO SOME USE
OF THE SOFTWARE ONLY IN ACCORDANCE WITH ITS SOFTWARE LICENSE AGREEMENT (SEE
SECTION 12 BELOW) AND
SHALL NOT BE CONSTRUED AS A SALE OF ANY RIGHTS THERETO OR THEREIN THE SOFTWARE,
ITS ALGORITHMS, DESIGNS, METHODS, LAYOUTS,
ORGANIZATION, STRUCTURE AND/OR UNDERLYING TECHNOLOGIES OR ANY ASSOCIATED
INTELLECTUAL PROPERTY THEREOF. ANY FUTURE CORPORATION OR 3RD PARTY SOFTWARE
THAT IS MADE AVAILABLE TO DOWNLOAD FROM ANY FUTURE CORPORATION INTERNET SITE OR
ON DISC (CD/DVD) IS THE COPYRIGHTED WORK OF FUTURE CORPORATION AND/OR ITS
SUPPLIERS AND FUTURE CORPORATION, ITS AFFILIATES, AND ITS SUPPLIERS RESERVE ALL
OTHER RIGHTS. USE OF SUCH SOFTWARE IS GOVERNED BY THE TERMS OF THE SOFTWARE
LICENSE AGREEMENT, AND YOU WILL BE UNABLE TO INSTALL ANY SOFTWARE THAT IS
ACCOMPANIED BY OR INCLUDES A SOFTWARE LICENSE AGREEMENT, UNLESS YOU FIRST AGREE
TO BE BOUND BY SUCH SOFTWARE LICENSE AGREEMENT. THE SOFTWARE IS MADE AVAILABLE
FOR DOWNLOADING OR INSTALLATION SOLELY FOR USE BY END USERS ACCORDING TO THE
SOFTWARE LICENSE AGREEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY
REPRODUCTION, ATTEMPT TO CIRCUMVENT THE SOFTWARE PROTECTION MEASURES AND/OR
REDISTRIBUTION OF THE SOFTWARE NOT IN ACCORDANCE WITH THE SOFTWARE LICENSE
AGREEMENT IS EXPRESSLY PROHIBITED, AND MAY RESULT IN TERMINATION OF THE
SOFTWARE LICENSE AND THIS AGREEMENT AND/OR A CLAIM OF DAMAGES AGAINST YOU
AND/OR SEVERE PENALTIES AT LAW. WITHOUT LIMITING THE FOREGOING, AND UNLESS
PERMITTED IN WRITING AND DULY SIGNED BY AN AUTHORISED SUPERVISOR OR MANAGER OF
FUTURE CORPORATION OR ONE OF ITS AUTHORISED AFFILIATES COPYING OR REPRODUCTION
OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR
REDISTRIBUTION IS HEREBY PROHIBITED.
2.2 THE SOFTWARE AND
WARRANTY: FUTURE
CORPORATION SOFTWARE IS WARRANTED, IF AT ALL, ONLY ACCORDING TO THE TERMS OF
THE SOFTWARE LICENSE AGREEMENT. EXCEPT AS WARRANTED IN THE SOFTWARE LICENSE
AGREEMENT, AND TO THE EXTENT PERMITTED BY LAW, FUTURE CORPORATION HEREBY
DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO FUTURE CORPORATION AND
3RD PARTY SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
2.3 WARNING: (1) FUTURE CORPORATION
SOFTWARE AND GOODS ARE NOT DESIGNED WITH COMPONENTS AND TESTING FOR A LEVEL OF
RELIABILITY SUITABLE FOR USE IN OR IN CONNECTION WITH NUCLEAR OR SCIENTIFIC OR
LIKE FACILITIES THAT INVOLVE HIGH-RISK AND/OR DANGEROUS ACTIVITIES, SURGICAL
IMPLANTS OR AS CRITICAL COMPONENTS IN ANY LIFE SUPPORT SYSTEMS WHOSE FAILURE TO
PERFORM CAN REASONABLY BE EXPECTED TO CAUSE SIGNIFICANT INJURY TO A PERSON OR
PERSONS AND/OR TO A POPULATION; AND (2) IN ANY APPLICATION, INCLUDING THE
ABOVE, RELIABILITY OF OPERATION OF FUTURE CORPORATION SOFTWARE CAN BE IMPAIRED
BY ADVERSE FACTORS, INCLUDING BUT NOT LIMITED TO FLUCTUATIONS IN ELECTRICAL
POWER SUPPLY, COMPUTER HARDWARE MALFUNCTIONS, COMPUTER OPERATING SYSTEM
SOFTWARE FITNESS, FITNESS OF COMPILERS AND DEVELOPMENT SOFTWARE USED TO DEVELOP
AN APPLICATION, INSTALLATION ERRORS, SOFTWARE AND HARDWARE COMPATIBILITY
PROBLEMS, MALFUNCTIONS OR FAILURES OF ELECTRONIC MONITORING OR CONTROL DEVICES,
TRANSIENT FAILURES OF ELECTRONIC SYSTEMS (HARDWARE AND/OR SOFTWARE),
UNANTICIPATED USES OR MISUSES, OR ERRORS ON THE PART OF THE USER OR
APPLICATIONS DESIGNER (ADVERSE FACTORS SUCH AS THESE ARE HEREAFTER COLLECTIVELY
TERMED “SYSTEM FAILURES”). ANY APPLICATION WHERE A SYSTEM FAILURE WOULD CREATE
A RISK OF HARM TO PROPERTY OR PERSONS (INCLUDING THE RISK OF BODILY INJURY AND
DEATH) SHOULD NOT BE RELIANT SOLELY UPON ONE FORM OF ELECTRONIC SYSTEM DUE TO
THE RISK OF SYSTEM FAILURE. TO AVOID DAMAGE, INJURY, OR DEATH, THE USER OR
APPLICATION DESIGNER MUST TAKE ALL REASONABLE STEPS TO PROTECT AGAINST SYSTEM
FAILURES, INCLUDING BUT NOT LIMITED TO BACK-UP OR SHUT DOWN MECHANISMS. BECAUSE
EACH END-USER SYSTEM IS CUSTOMIZED AND DIFFERS FROM FUTURE CORPORATION’S
TESTING PLATFORMS AND BECAUSE A USER OR APPLICATION DESIGNER MAY USE FUTURE
CORPORATION SOFTWARE AND/OR GOODS IN COMBINATION WITH OTHER PRODUCTS IN A
MANNER NOT EVALUATED OR CONTEMPLATED BY FUTURE CORPORATION, THE USER OR
APPLICATION DESIGNER IS ULTIMATELY RESPONSIBLE FOR VERIFYING AND VALIDATING THE
SUITABILITY OF FUTURE CORPORATION SOFTWARE AND/OR GOODS WHENEVER SUCH SOFTWARE
AND/OR GOODS ARE INCORPORATED IN A SYSTEM OR APPLICATION, INCLUDING, WITHOUT
LIMITATION, THE APPROPRIATE DESIGN, PROCESS AND SAFETY LEVEL OF SUCH SYSTEM OR
APPLICATION.
3. SALES OF GOODS AND
LICENSING
3.1 TITLE: Ownership and property
shall pass from Future Corporation to you upon delivery of the Goods.
Notwithstanding this Future Corporation retains a security interest (see below)
and right of possession in the Goods until you make full and final payment. If
payment is not made within the agreed payment terms, Future Corporation shall
without prejudice to any other remedies, be entitled to enter the premises
where the Goods are situated and re-take possession of the Goods. Upon the
appointment of Receiver, Receiver and Manager, Liquidator or Mortgagee in
possession of the business of the Buyer, ownership of any Goods for which the
Future Corporation has not been paid will immediately revert to the Future
Corporation notwithstanding that the due date for payment may not have elapsed.
Future Corporation is hereby granted an irrevocable license to enter such
premises for the purpose of repossessing the Goods and upon the re-taking of
possession Future Corporation shall have title to such Goods.
3.1.1 RISK OF LOSS AND
INSURANCE: You
shall bear all risks of loss or damage to Goods from any cause from date of
delivery to you and you shall keep the Goods insured against all risks of loss
or damage from every cause whatsoever during the term of this Agreement or
until the Goods are paid in full for not less than the full replacement value
thereof.
3.1.2 SECURITY
INTEREST:
On any sales or grant of a nonexclusive License, you hereby grant to Future
Corporation a priority or equitable lien, purchase money security interest
and/or chattel mortgage in the Goods and in any accounts receivable or cash
from resale thereof until full payment is made to Future Corporation for the
Goods purchased or Software Licensed. On request of Future Corporation, you
agree to file any financing statements or other appropriate document with all
applicable governmental authorities to assure the validity, priority, and
enforceability of Future Corporation's lien.
3.1.3 PARALLEL SOFTWARE
LICENSES:
The purchase of two (2) or more Future Corporation Software Licenses by you
irrespective from where purchased, shall be construed as a single (1) Parallel
Software License and you hereby acknowledge and agree with Future Corporation,
its Affiliates and/or its Authorised Dealers that that the termination or
suspension of any one Software License for any breach of the terms and
conditions herein and/or under the terms and conditions of the Software License
Agreement shall equally apply to any and all other Software Licenses granted to
you by Future Corporation. To avoid any doubt and in the event, you fail to pay
for any one (1) Software License, including but not limited to: Instalment,
Membership and Subscription Software whereby that Software License is suspended
ALL other Software Licenses shall be suspended until such time as all
outstanding moneys are paid in full.
3.2 TAXES: All prices, fees and
charges listed herein are exclusive of, and you shall pay, applicable goods and
services, sales, use, service, value added or like taxes, unless you have
provided Future Corporation with an appropriate exemption certificate for the
delivery destination acceptable to the applicable taxing authorities.
3.3 CUSTOM-MADE GOODS
AND SOFTWARE
3.3.1 Custom-Made
Goods: As
to any Goods which are made to order (custom-made), you assume full
responsibility for the specifications of the Goods, including specifications
suggested by Future Corporation and accepted by you, and for their suitability
for the use to which they are to be applied. You acknowledge and agree to pay
in full all fees and charges incurred as set forth in section 3.3.3 (below) to
Future Corporation.
3.3.2 Custom-Made
Software: As
to any order or request by you to modify, alter or otherwise change the
Software (“CustomWare”), you assume full responsibility for the specifications
of such CustomWare, including specifications suggested by Future Corporation
and accepted by you, and for their suitability for the use to which they are to
be applied. You acknowledge and agree to pay in full all fees and charges
incurred as set forth in section 3.3.3 (below) to Future Corporation.
3.3.3 Fees and Charges:
You
hereby acknowledge and agree to compensate Future Corporation all its fees and
charges including but not limited to any materials, base hourly rate (USD$660
per hour, per developer or part thereof), third party expenses and shipping
charges for the carrying out of the work as requested and/or ordered by you
pursuant to sections 3.3.1 and 3.3.2 (above).
3.4 PRICES
3.4.1 MSRP or RRP: Unless expressly
stated otherwise in writing by Future Corporation, all prices listed or
displayed at: (i) Future Corporation’s Internet Sites and/or listed or
displayed in Future Corporation: (ii) Catalogues, (iii) Brochures, (iv) Price
Lists and any and all related Marketing Materials (referred collectively herein
as “Price Materials”) are stated in United States Dollars (“USD$”) and the
prices offered are valid for a period of thirty (30) days from the date of
Future Corporation’s Offer.
3.4.1.1 Special Offers,
Payment Options and Discounts: You acknowledge and agree with Future
Corporation that Future Corporation, its Affiliates and/or its Authorised
Dealers reserve the right to refuse combining with each other, any and all: (i)
special offers; or (ii) one-off offers; and/or (iii) (a) discounts and/or (b)
special discounts; or (c) promotional discounts for the Goods, and shall not be
obliged or required by you, another or third party to accept (i) pay by Instalments;
or (ii) pay by subscription, which you further agree any acceptance thereof is
at the absolute discretion of Future Corporation, its Affiliates and/or its Authorised
Dealers.
3.4.1.2 Coupon,
Promotional Codes and Vouchers: You acknowledge and agree with Future
Corporation, its Affiliates and/or its Authorised Dealers may at their absolute
discretion provide a numeric or alphanumeric code as a discount from MSRP for a
specified product or products (hereafter “coupon code”) and that a coupon code
must (i) be a valid coupon code issued only by Future Corporation, and (ii) is
valid for a limited time only, and (iii) must be entered at the time of
purchase on our website, and (iv) is not subject to, and cannot be applied
retrospectively to any past purchase made by you, and (v) each coupon code can
be used only once, unless otherwise specified, and (vi) each coupon code
applies only to qualifying items as specified in the offer, and (vii) the
promotion is subject to all restrictions set forth in the offer, and (viii) the
coupon code is not transferrable and may not be resold, and (ix) if you return
items purchased using a coupon code as permitted herein, we will subtract the
value of the coupon code from your return credit, and (x) coupon codes may not
be combined with other offers, and (xi) there is a limit of one (1) coupon code
per customer. If you violate any of the terms and conditions, the promotion
will be invalid, and the coupon code discount will not apply.
3.4.2 Special Quotes
and Trade Orders:
All individual and/or non MSRP/RRP quotations including but not limited to
emails, facsimiles, written and verbal offers are stated in USD$ and shall
expire thirty (30) days from date of issuance, unless otherwise set forth on
the quotation or agreed in writing by an authorised Future Corporation
supervisor or manager.
3.4.3 Pricing and
Information Disclaimer: All pricing is subject to change. For all prices, products
and offers, Future Corporation reserves the right to make adjustments due to
changing market conditions, CPI inflation, product discontinuation,
manufacturer price changes, errors in advertisements and other extenuating
circumstances. While Future Corporation uses reasonable efforts to include
accurate and up-to-date information, Future Corporation makes no warranties or
representations as to the accuracy of its Price Materials. Future Corporation
assumes no liability or responsibility for any errors or omissions in the
content of its Price Materials.
3.4.4 Support-Services
Charges: You
hereby acknowledge and agree to compensate Future Corporation at the rate of
USD$330 per hour, per incident or part thereof, for Future Corporation
providing any in-house, telephone or online support for any 3rd party software,
computer hardware, cutting or printing device, machine or any related equipment
that (i) is not functioning correctly or as it ordinarily should, or (ii) is
faulty, or (iii) is misconfigured, or (iv) is incapable of working with the
Software, or (v) is subject to malware, a virus, a Trojan or otherwise
malicious software or firmware; for or on your behalf;
3.5 PAYMENT
3.5.1 Casual Retail
Sales: Payments
shall be made in full by you prior to delivery of the Goods by cashier’s or
company check/cheque, digital wallet, credit, or debit card (referred
collectively herein as “credit-card”), direct deposit, electronic funds
transfer (“EFT”), money order or transfer, or via wire, or any other acceptable
payment method which you acknowledge is at Future Corporation’s sole discretion
to either accept or refuse. Where Future Corporation quotes and/or lists prices
in non USD$ (“Other Currency”) and you offer to pay with a valid credit-card
and Future Corporation accepts such credit-card and offer, Future Corporation
will ordinarily charge in that currency. However, Future Corporation reserves
the right to calculate and process such payment to an amount equivalent to such
Other Currency in AUD$ or USD$ as listed by and at http://www.xe.com. All other
payment methods unless agreed to in writing by Future Corporation prior to
payment must be to an equivalent amount in USD$ as listed by and at http://www.xe.com on the
same day of payment. For example, if a product is listed at EUR€1.00,00 and the
equivalent according to http://www.xe.com
is USD$150.00 on such day, then USD$150.00 is the amount which must be paid to
Future Corporation for the order to be accepted should all other terms and
conditions as listed herein be satisfied.
3.5.2 Credit Sales: If Future Corporation
approves your credit application for credit terms, payment shall be due no
later than 30 days from the date of Future Corporation’s invoice. All sums not
paid when due shall accrue interest daily at the lesser of a monthly rate of
1.5% or the highest rate permissible by law on the unpaid balance until paid in
full.
3.5.3 Instalment Sales: Future Corporation, its Affiliates and/or its Authorised
Dealers may in their absolute discretion permit you
to pay for certain Future Corporation Software Licenses in Instalments until
such time as the Software License is paid in full, in lieu of paying upfront,
as set out in Future Corporation's Price Materials subject to the terms and
conditions as set forth below (collectively “Instalment Software”). If you
apply to pay for a Software License by Instalments and Future Corporation
accepts your application, and except as expressly limited by applicable law,
you hereby agree and warrant that: (i) your purchase
of Instalment Software forms an irrevocable and binding agreement that
is non-cancellable during the Instalment period, or until the Software License
is paid in full (whichever is the earlier); and (ii) installation,
use or usefulness thereof and/or the activation (unlocking) of the Software
shall not be a condition precedent of the obligations created herein; and (iii)
Instalment Software is a payment method for the Software License to be
paid in Instalments over an agreed period of time, including any and all related
charges or fees that equals the whole amount otherwise payable for the Software
License when all Instalments have been paid to Future Corporation; and (iv) you
acknowledge and agree to be bound by all those terms applicable to you and/or
the legal entity that obtained the software and on whose behalf it is used
under the Software License Agreement and in particular but not limited to
sections 3.5.3.1, 6.3, 6.4 and 6.5 pursuant to such Instalment Software; and
(v) pursuant to this agreement you will provide
identification documents and/or numbers and dates, contact telephone number(s)
and other relevant details thereof, as set out in the application document or
online form as provided by Future Corporation, its Affiliates and/or its Authorised
Dealers; and (vi) you will provide the necessary details of a valid
credit-card that you certify is lawfully issued by a credit-card provider to
you that is a type of credit-card accepted by Future Corporation, its
Affiliates and/or its Authorised Dealers (as set out in the application
document) and that you are authorised by law to use and bind such credit-card
to this and for the full term of this Agreement; and (vii) you agree to be
responsible for any bank fees or charges, credit-card
provider fees or charges, costs or conversion charges, and all other
charges that may apply as a result of foreign
exchange rates, and/or international or domestic processing fees and charges incurred
as a result of making your Instalment payments; and (viii) Future
Corporation, its Affiliates and/or its Authorised Dealers may at their
discretion (a) round the Instalment Amount up or down to the nearest whole
dollar and (b) adjust the Instalment due date (hereafter “due day”) to any day
it sees fit of each subsequent month after the initial Instalment payment (e.g.
if your application is approved on the “x” day of the month Future Corporation,
its Affiliates and/or its Authorised Dealers may at their discretion reset all
future payments to the 1st day of each month for the remainder
thereafter of the Agreement); and (ix) you shall at all times keep the credit
facility associated with your credit-card subject to this Agreement in good
standing and with sufficient credit to meet your obligation under this
Agreement when it falls due each month of the Agreed term until the Agreement
is concluded; and (x) Future Corporation, its
Affiliates and/or its Authorised Dealers will record and retain the credit-card
information provided by you pursuant to this section in order to process the Instalment
Amount each month of the agreed term until such time as the Instalment Software
is paid in full by you and/or as is reasonably required; and (xi) any accidental,
mistaken and/or unintentional charge or overcharge made against your credit
card by Future Corporation and/or its bank will either (a) be refunded to the
credit card account in full, or (b) carried forward to the following month (or
months) payment or payments at the sole discretion of Future Corporation and
you hereby agree to hold Future Corporation harmless in such event and shall
advise Future Corporation in writing of any charge or charges in addition
listed herein within thirty (30) days to Future Corporation; and (xii) Future
Corporation reserves the right to (a) suspend the Instalment Software from
operating on your computer or computers after the due day for non payment
and/or to (b) permanently stop the Software from operating on your computer or
computers after (i) six (6) failed attempts (cumulative total) to process the
payment when due, that is denied or refused by the card issuer for and
including but not limited to insufficient funds, blocked access by the card
issuer and/or you and/or other reason at any time during the Instalment period;
and/or (ii) thirty (30) days from the due day for non payment notwithstanding
any reason, and you hereby acknowledge and agree with Future Corporation that
any suspension or termination of the Software's operation under this section
does not waive, suspend or cancel any of your obligations herein, or the
Software License Agreement and does not entitle you to any refund of moneys
and/or consideration for any payments previously paid for the Instalment Software;
and (xiii) pursuant to this Agreement you acknowledge that Future Corporation
IS NOT a Financial Services Provider and the Instalment Scheme is not a credit
line or revolving credit facility and that Future Corporation IS NOT providing
any financial advice or recommendation or any financial service or product to
you.
3.5.3.1 DIRECTORS
GUARANTEE: PURSUANT
TO SECTION 3.5.3 ABOVE AND WHERE THE SOFTWARE HAS BEEN LICENSED AS INSTALMENT
SOFTWARE BY A LEGAL ENTITY OTHER THAN A NATURAL PERSON INCLUDING BUT NOT
LIMITED TO A PRIVATE OR PUBLICLY LISTED COMPANY, CORPORATION AND/OR BUSINESS
MANAGED AND/OR OPERATED BY DIRECTORS, MEMBERS AND/OR MANAGERS (HEREAFTER “THE
COMPANY”) EACH DIRECTOR, MEMBER OR MANAGER THEREOF IRREVOCABLY AND
UNCONDITIONALLY AGREES TO PERSONALLY GUARANTEE THE PERFORMANCE OF THE INSTALMENT
SOFTWARE AGREEMENT BY THE COMPANY AND ALL PRESENT AND FUTURE PAYMENT
OBLIGATIONS OF THE COMPANY PURSUANT TO THE AGREEMENT AS VARIED FROM TIME TO
TIME. THE OBLIGATIONS OF EACH DIRECTOR, MEMBER OR MANAGER OF GUARANTEEING THE
DEBTS UNDER THIS GUARANTEE ARE JOINT AND SEVERAL AND ARE CONTINUING OBLIGATIONS
UNTIL ONLY SUCH TIME AS THE INSTALMENT SOFTWARE IS PAID IN FULL AND NO MONEYS
REMAIN OUTSTANDING TO FUTURE CORPORATION BY THE COMPANY.
3.5.3.2 INSTALMENT
SOFTWARE UPGRADES: Pursuant
to section 3.5.3 above and where you have requested to upgrade your existing Instalment
Software License to a more recent Software License (“Upgrade”) notwithstanding
the payment method, and such request has been accepted by Future Corporation, its Affiliate and/or an Authorised Dealer, you
hereby acknowledge and agree with Future Corporation that all current and
future payments for your existing Instalment Software shall remain payable in
full under the terms of the Agreement, only unless: (i) any and all current and
outstanding amounts are paid in full; or, (ii) the Instalment amount and/or the
frequency of Instalment payments are modified and/or incorporated into a
replacement Instalment Software Agreement under the terms and conditions set
out by Future Corporation which shall be in writing, and in Future
Corporation's absolute discretion.
3.5.4 Subscription Sales: Future
Corporation, its
Affiliates and/or its Authorised Dealers may, but are
under no obligation to allow you to License certain Future Corporation Software
Licenses on a Subscription basis, payable in
advance, as set out in Future Corporation's Price Materials subject to the terms
and conditions as set forth below (collectively “Subscription Software”). If
you elect to License the Software on a Subscription basis and except as expressly limited by applicable law, you
agree that: (i) your rights to use the
Software are limited to the Subscription period; and, (ii) Subscription
software is subject to all the terms and conditions of the Software License
Agreement; and, (iii) after the termination of your Subscription the Software
will cease to operate. You hereby acknowledge and agree with Future
Corporation, its Affiliates and/or its Authorised Dealers that Subscription
Software shall automatically recommence for the same period at the conclusion
of each Subscription period (roll-over) unless (i) cancelled by you or Future
Corporation in writing; and, (ii) if cancelled by
you, you shall: (a) correctly complete and submit the Subscription
cancellation form provided by Future Corporation at the product's website; and,
(b) obtain a return authorisation (RA) number from Future Corporation; and, (c)
uninstall and where applicable deactivate and/or
deregister the Software; and, (d) return any media and other associated
materials including the hardware security device (if applicable) to Future
Corporation or the place of purchase; and (e) obtain a receipt for such return
as evidence of such termination of your Subscription Software; and (f) do so in
no less than fourteen (14) days from the next payment due date. If you apply to
pay your License by Subscription, and except as expressly limited by applicable
law, you agree that: (i) you will provide
identification documents and/or numbers and dates, contact telephone number(s)
and other relevant details thereof, as set out in the application document or
online form as provided by Future Corporation, its Affiliates and/or its Authorised
Dealers; and (ii) you will provide the necessary details of a valid
credit-card that you certify is lawfully issued by a credit-card provider to
you that is a type of credit-card accepted by Future Corporation, its
Affiliates and/or its Authorised Dealers (as set out in the application
document) and that you are authorised by law to use and bind such credit-card
to this and for the full term of this Agreement; and (iii) the credit-card
shall remain current for Subscription period; and (iv) Future Corporation, its
Affiliates and/or its Authorised Dealers shall process and take payment from
your credit-card (“Subscription Instalment”) to an amount (a) equal to the
Subscription fee of the Software as listed at the Software’s Internet site
and/or published by Future Corporation in its Price Materials from time to
time; and, (b) you agree to be responsible for any
bank fees or charges, credit-card provider fees or charges, costs or
conversion charges, and all other charges that may apply as a result of foreign exchange rates, and/or international or domestic
processing fees and charges incurred as a result of making your Instalment
payment.; and (v) Future Corporation, its Affiliates and/or its Authorised
Dealers may at their discretion (a) round the Subscription fee up or down to
the nearest whole dollar and adjust the Instalment due date to any day it sees
fit of each subsequent month after the initial Instalment payment (e.g. if your
application is approved on the “x” day of the month Future Corporation, its
Affiliates and/or its Authorised Dealers may at their discretion reset all
future payments to the 1st day of each month for the remainder
thereafter of the Agreement); and (vi) you shall at all times keep the credit
facility associated with your credit-card subject to this Agreement in good
standing and with sufficient credit to meet your obligation under this
Agreement when it falls due each month of the Subscription period until the
Agreement is concluded; and (vii) you acknowledge and agree that Future Corporation, its Affiliates and/or its Authorised
Dealers will record and retain the credit-card information provided by you
pursuant to this section in order to process the Subscription Instalment each
month of the agreed term and/or as is reasonably required; and (viii) Future
Corporation reserves the right to indefinitely suspend the Software from
operating on your computer or computers after fourteen (14) days for non and/or
delayed payment of a Subscription Instalment until such time that any
outstanding moneys pursuant to this section are paid in full by you and you
hereby acknowledge and agree with Future Corporation that any suspension of the
Software's operation under this section does not waive, suspend or cancel any
of your obligations under these Terms and Conditions of Sale herein, or the
Software License Agreement; and (ix) pursuant to this Agreement you acknowledge
that Future Corporation IS NOT a Financial Services Provider and that the
Subscription is not a loan, credit line or revolving credit facility and that
Future Corporation IS NOT providing finance or any financial advice or
recommendation or any financial service or product to you, only a choice of
licensing and related payment method, that is at Future Corporation’s, its
Affiliate’s and/or its Authorised Dealers’ absolute discretion to provide to
you, your nominee or third party; and (x) you
acknowledge and agree to be bound by all those terms applicable to you and/or
the legal entity that obtained the software and on whose behalf it is used
under the Software License Agreement and in particular but not limited to
sections 6.3, 6.4 and 6.5 pursuant to such Subscription Software.
3.5.5 3rd Party Fees
and Charges:
Notwithstanding any payment method described herein, you agree to be
responsible for any bank fees or charges, credit-card
provider fees or charges, costs or conversion charges, and all other
charges that may apply as a result of foreign
exchange rates, and/or international or domestic processing fees and charges
incurred as a result of Future Corporation
accepting and processing your payment. Future Corporation reserves the
right to (i) process your payment in your local currency as listed or quoted by
Future Corporation and (ii) reject or refuse any non USD$ payment regardless of
payment method or type.
3.5.6 Foreign Exchange
Losses: Future
Corporation shall not be held responsible or liable for any foreign exchange
movements which may occur during the period of a sales transaction with you,
nor shall you claim any losses incurred as a result of such foreign exchange
movements. For example, where a non US credit card is provided by you and
payment is taken by Future Corporation in USD$, and is refunded in USD$ at a
later date and during that period the USD$ loses value against the other
currency, and consequently, the refund results in your net loss, Future
Corporation shall not be held liable or responsible to refund or make good any
such loss to you, another or third party under any circumstances.
3.5.7 Cash Back or
Cashback Offers:
Where Future Corporation offers cash or other pecuniary benefit to you when
purchasing Goods from Future Corporation its
Affiliates and/or its Authorised Dealers (Hereafter “Cash Back”) you hereby
acknowledge and agree with Future Corporation that (i) All Cash Back claims
must be registered online. All supporting documents should be sent within
fourteen (14) days of purchase. Applications sent after this period will not be
accepted. No extensions will be given under any circumstances; and (ii) Once
your claim has been received and accepted by Future Corporation, please allow
up to eight (8) weeks for the delivery of your check/cheque by ordinary mail;
and (iii) A print out of the completed online form, bearing a system generated
Cash Back claim number must be mailed in, along with a legible copy of the
invoice or receipt from the place of purchase, the physical barcode label and
if applicable the Product Serial Number (“PSN”); and (iv) Delivery dockets,
hand written store receipts and photocopies of the barcode will not be
accepted. No responsibility is taken for late, lost or misdirected mail; and
(v) The Cash Back Offer is limited to ten (10) Cash Back claims per customer for
each product in any given twelve (12) month period; and (vi) A single PSN can
be used for ONE claim ONLY. A claim will not be accepted if the same PSN has
been used on another claim; and (vii) The purchase date is determined by the
date of the invoice or receipt issued by the place of purchase submitted by you
with the claim; and (viii) Future Corporation reserves the right to refuse any
claim if the product purchased is returned for any reasons; and (ix) The Cash
Back Offer is not available for products sold in conjunction with any other
special offer or promotional product bundle; and (x) All claims are subject to
verification by Future Corporation and Future Corporation reserves the right to
reject any claim which does not comply with these terms and conditions; and
(xi) Employees of Future Corporation and its Affiliates and/or its Authorised
Dealers, Resellers, Distributors and Agencies associated with this Cash Back
offer are not eligible for the Cash Back offer; and (xii) any further terms and
conditions published under the Cash Back offer.
3.6 RETURNS,
CANCELLATIONS AND REFUNDS
3.6.1 Future
Corporation Software - Returns: The Future Corporation fourteen (14) day money
back guarantee for the Software is strictly subject to Part III of the Software
License Agreement and No returns will be accepted by Future Corporation, or its
Affiliates and/or its Authorised Dealers after the fourteen (14) day period has
expired. It is your responsibility to satisfy yourself as to the suitability of
the Software for your purposes. Any failure to do so will not give rise to an
extension or recalculating of time from the purchase date.
3.6.1.1 Future
Corporation Instalment Software - Non-Cancellable: Payments for Future
Corporation Instalment Software ARE NOT subject to cancelation by the Licensee
or their nominee under any circumstances. Notwithstanding suspension or
termination under section 3.5.3 herein and/or termination under sections 3.7.2
or 6.3 of the Software License Agreement you hereby acknowledge and agree with
Future Corporation, its Affiliates and/or its Authorised Dealers that where you
have applied and been granted a Software License payable by Instalments that
(i) all payments shall be paid by the date each payment falls due; and (ii)
your obligation to pay the whole amount for the Software License including any
fees and charges is absolute and cannot be waived by you for any reason; and
(iii) failure to meet your obligations under this section and section 3.5.3
herein shall result in your debt being forwarded to a collection agency for
collection and a negative report recorded on your credit rating and/or legal
action to recover any outstanding moneys.
3.6.1.2 Suspended
Software License:
You hereby acknowledge and agree with Future Corporation, its Affiliates and/or
its Authorised Dealers that in the event your Software License, or any other
Future Corporation Software Licenses that have been temporarily suspended by
Future Corporation for non-payment of the Software License, including but not
limited to: Instalment or Subscription software that you are NOT entitled to,
and cannot make any claim for compensation, refund, prorated quantum, offset or
loss howsoever incurred during the suspended period and that any losses
incurred by you shall be entirely at your own risk and expense.
3.6.2 Future
Corporation Hardware and 3rd Party Software: You may return unopened/unused Hardware
or 3rd Party Software within thirty (30) days of the Delivery Date. You shall
pay a fifteen percent (15%) restocking charge on any unopened/unused Hardware
or 3rd Party Software returned to Future Corporation. No returns will be
accepted after the thirty (30) day period has expired. Where special equipment
or services are involved, you shall be responsible for all related work in
progress; however, Future Corporation shall take reasonable steps to mitigate
damages immediately upon receipt of a written cancellation notice from you. A
return authorisation number (“RA”) must be obtained from Future Corporation for
return of any Hardware or 3rd Party Software. Future Corporation may terminate
any order if any representations made by you to Future Corporation are false or
misleading. Changes to orders shall not be binding upon nor be put into effect
by Future Corporation unless confirmed in writing by Future Corporation’s authorised
representative.
3.6.3 Custom-Made Goods
and Software: Neither
Custom-Made Goods or CustomWare pursuant to sections 3.3.1 and 3.1.2 (above)
can be cancelled or returned for any refund since these goods have been
requested and/or ordered and subsequently developed and created exclusively for
you.
3.6.4 Credit Card
Chargeback:
An unauthorised or inappropriate chargeback by credit card customers is costly
to process and respond to and may subject the person making the chargeback to
civil and criminal liability. If you wish to return and obtain a refund for a
Future Corporation Software product, see Part III of the Software License
Agreement. If you wish to return a Future Corporation Hardware or 3rd Party
Software product, see the Returns and Refunds section to accomplish a return
(above), if qualified. Any unauthorised, inappropriate, or otherwise unlawful
chargeback will be automatically rejected and contested by Future Corporation
and will be subject to (i) a USD$50 fee charged to your credit card; and (ii)
an amount equal in USD$ to any net loss incurred by Future Corporation due to
any foreign exchange rate movements. By ordering from Future Corporation, you
agree to the Terms and Conditions of Sale herein and give Future Corporation
the authority to charge your credit card the aforementioned service fee and any
foreign exchange losses to cover the cost of processing any chargeback you
issue. If you subsequently chargeback any or all of those fees and charges,
your account will be forwarded to a collection agency for collection and a
negative report will be recorded on your credit rating. Any chargeback for a
Future Corporation Software product may result in (i) permanent cancellation of
your credit-card purchasing privileges; and/or (ii) suspension and/or
cancellation of all Licenses and/or Subscriptions acquired by you; and/or (iii)
cancellation or rejection of an uncompleted refund; or a refund in process;
and/or (iv) other applicable action as set forth in the Software License Agreement;
and (v) Future Corporation reserves the right to prosecute all misuse of credit
cards to the fullest extent permitted by law and to discontinue any and all
communications with you.
3.6.4.1 Declined Credit
Card Transactions:
You hereby acknowledge and agree with Future Corporation, its Affiliates and/or
its Authorised Dealers that should your credit card be declined by the card
issuer for any reason when an instalment or subscription payment is processed
on the day it falls due, that (i) a USD$15 reprocessing fee will charged to
your account; and (ii) non payment of this fee and/or any outstanding moneys
owing to Future Corporation may result in the temporary suspension of your
Software License and/or any other Software Licenses you have from Future Corporation
until all outstanding moneys are paid in full.
3.6.5 Wire Errors: Wire transfer
customers should take great care in obtaining full information before wiring
funds to Future Corporation. Any funds returned for wire transfers sent in
error or otherwise cancelled will have a USD$100 wire transfer fee deducted.
Please take the time to have all questions answered before sending a wire
transfer to make sure you are ordering what you want. Before sending a wire
transfer, please make sure to contact sales@iifuture.com
to obtain complete instructions.
3.6.6 Dishonoured
Check/Cheque:
If a check/cheque you provide for payment is dishonoured for any reason by the
bank or other institution on which it is drawn, you agree to pay a USD$40
service and processing fee to Future Corporation. In addition, you agree to pay
any other reasonable charges imposed by any check verification company or
collection agency that we may use for collection.
3.6.7 Electronic
Communications:
You hereby acknowledge and agree with Future Corporation, its Affiliates and/or
its Authorised Dealers that any electronic communications including but not
limited to email and/or a messenger service provided by another or 3rd party
including but not limited to services provided by AOL, eBay, Gawab, Google
(gmail), GMX, Hotmail, HushMail, iCloud, Mail.com, Messenger, Microsoft (Live
and MSN), Outlook, Skype, Tiscali, Yahoo or Zoho shall be solely at your own
risk and that Future Corporation shall be under no obligation to guarantee
receipt or delivery of any electronic communications with you, nor shall Future
Corporation have any obligation to contact you by any other means should any
electronic communications fail even if Future Corporation or its representative
is advised or becomes aware of any such or potential failure.
3.6.7.1 Electronic
Communications and Spam Email: Pursuant to section 3.6.7 above Future
Corporation reserves the right to temporarily or permanently block and/or
refuse to accept any email messages from any email address that transmits
illegitimate and/or unsolicited messages to its servers or computer systems
notwithstanding any relationship the sender has or purports to have with Future
Corporation (hereafter “Spam Email”), and you hereby agree that you shall
indemnify and hold Future Corporation harmless from and against any and all
claims, actions, suits, proceedings, costs, expenses, damages, and liabilities,
including legal fees (on an attorney/solicitor and own client basis) arising out
of, connected with, or resulting from Future Corporation's refusal to accept
your email and/or blocking of any email address howsoever associated with you
that Future Corporation in its absolute discretion deems to be Spam Email.
3.7 ORDERS
3.7.1 Acceptance and
Rejection Policy: All
orders for the Goods are subject to acceptance by Future Corporation and Future
Corporation reserves the right to refuse or reject your application and/or
offer to purchase the Goods for any, or no reason, or to cancel any transaction
at Future Corporation's absolute discretion. By way of example, but not
limitation, some reasons why Future Corporation may choose not to do business
with a given person or legal entity or to cancel a particular transaction may
include any actual or suspected illegal or immoral activity, any fraud or
suspicion thereof in commercial transactions, previous history of credit card
chargeback, non payment for goods and/or services or other financial abuse,
violations of Software Licensing terms and conditions or any profanity, threats
or other abusive other financial abuse, violations of Software Licensing terms
and conditions or any profanity, threats or other abusive behaviour directed at
Future Corporation employees, contractors, agents, dealers, suppliers and/or
representatives or threats or other abusive behaviour within Future Corporation
hosted user communities. Moreover, the Software License Agreement for Future
Corporation software explicitly specifies that the license terminates if the
Agreement is violated. Any such termination may be automatically enforced by
the Software itself, and if such termination occurs you will not receive any
refund for any Licensing and/or Subscription fees paid. For example, if you
violate the Software License Agreement by installing a single License of Future
Corporation Software on multiple machines for use by multiple persons, the
Software will eventually terminate itself and will revoke the Activation,
and/or Customer, and/or Product and/or Serial number for that License.
3.7.2 Out of Stock: -
Orders Paid by Check/Cheque, EFT, Wire or Credit Card: Items not available
for immediate shipment will be shipped as they become available. Items not
available at the end of 30 days will be cancelled and refunded/credited. The
number of backorder days may be extended beyond 30 days with your approval. If
a refund check is issued, the cancelled item can be re-entered without a
handling charge if the check and cancellation notice are returned to us.
3.7.3 Out of Stock: -
Orders On Credit Account: Items not available for immediate shipment will be shipped
as they become available. Items not available at the end of 60 days will be
cancelled. The number of backorder days may be extended beyond 60 days with
your approval.
3.7.4 Embargoes: Please note that at
times, Future Corporation must restrict the sale of certain Goods within
specific geographic regions because of various contractual arrangements.
3.8 DELIVERY
3.8.1 Shipment by
Carrier/Courier:
Future Corporation shall deliver the Goods to a carrier at Future Corporation’s
place of business. You shall pay (a) all applicable freight charges and fees,
and (b) any import and/or Customs duties, fees, charges, taxes and/or any
related or indirect costs incurred by you, and (c) insurance against loss at
your option. Orders are entered as close as possible to your requested shipment
date, if any. Shipment dates are scheduled after acceptance of orders and
receipt of necessary documents. Claims for shipment shortage shall be deemed
waived unless presented to Future Corporation in writing within fourteen (14)
days of delivery and in all cases no more than twenty eight (28) days of
shipment from Future Corporation's place of business.
3.8.2 Shipment by
Unregistered Post:
Where you have elected to have the Goods shipped by Unregistered Post
regardless of the postal carrier or postal class, packaging type or
destination, Future Corporation shall not assume any responsibility or
liability to you, other or third party for any delay, damage, or loss, of or to
the Goods and all risk thereof shall be borne by you.
3.8.3 Download
Software:
Some Future Corporation and 3rd Party Software is downloaded by default
(collectively in this section “Download Software”). When your Download Software
order is processed you will receive either (i) email instructions for
downloading your order by Internet; or (ii) be provided with an immediate link
from which to obtain the Download Software; or (iii) any other method of like
delivery deemed suitable by Future Corporation. Download Software files are
generally large and range from 50MB to over 2GB. If your Internet connection is
not reliable enough to download large files without error, please also order a
Future Corporation Media Pack to receive either a CD or DVD installation media.
Unless stated in writing Download Software prices do not include CD/DVD media -
no CD/DVD will be sent unless you also order a Future Corporation Media Pack
(if available).
3.8.4 Force Majeure: Future Corporation
shall be excused for any delay or failure to perform due to any cause beyond
its reasonable control, including but not limited to acts of governments,
natural catastrophes, acts of you, pandemics, interruptions of transportation
or inability to obtain necessary labour or materials. Future Corporation’s
estimated shipping schedule shall be extended by a period of time equal to the
time lost because of any excusable delay. In the event Future Corporation is
unable to perform in whole or in part because of any excusable failure to
perform, Future Corporation may cancel orders without liability to you.
3.8.5
Import and Export Restrictions: Pursuant to this Agreement herein,
your Output Files and the Software, you acknowledge and agree with Future Corporation, its
Affiliates, and/or its Authorised Dealers to comply with all applicable export
and import and/or Customs laws and regulations applicable to or within your
jurisdiction and you hereby warrant to Future Corporation, its Affiliates, and
its Suppliers that you shall not export Future Corporation or 3rd Party
Software without the written permission of Future Corporation duly signed by an
authorised Future Corporation manager.
3.9 ELECTRONIC COMMUNICATIONS:
3.9.1 PRIVACY AND DATA COLLECTION: You hereby acknowledge
and agree to allow Future Corporation, its Affiliates, and/or its Authorised
Dealers to store your credit and/or debit card in a tokenization format, PayPal
and any other online payment system identification for the purposes of any new,
repeat or recurring billing; along with your contact information, including
names, telephone numbers, and email addresses, anywhere they do business. Such
information will be processed and used in connection with your Software License,
our Privacy Statement, and/or our business relationship from the sale of goods
and/or services to you, and may be provided to Future Corporation’s Affiliates,
Contractors, Partners, Suppliers, and/or its Authorised Dealers for uses
consistent with their collective business activities, including communicating
with you.
3.9.2 ELECTRONIC DELIVERY OF COMMUNICATIONS: You agree and consent
to receive electronically including but not limited to all communications,
documents, notices, product information, links, offers and disclosures
(collectively, “Communications”) that Future Corporation, its Affiliates,
and/or its Authorised Dealers provide in connection with the Software and your
Future Corporation account and your use of our services.
3.9.3 HOW TO WITHDRAW YOUR CONSENT: You may withdraw your
consent to receive Communications electronically by writing to us with your
business and/or related details to: or by clicking Unsubscribe on any
electronic communications which provides such link. Please see our Privacy
Statement for additional opt-out options.
3.9.4 UPDATING YOUR CONTACT INFORMATION: It is your responsibility
to keep your primary email address up to date so that Future Corporation, its
Affiliates, and/or its Authorised Dealers can communicate with you
electronically. You understand and agree that if Future Corporation sends you
an electronic Communication, but you do not receive it because your primary
email address on file is incorrect, out of date, blocked by your service
provider, or you are otherwise unable to receive electronic Communications,
Future Corporation will be deemed to have provided the Communication to you.
4. LIMITED WARRANTY
4.1 Hardware: Future Corporation
Hardware Products are warranted against defects in materials and workmanship
for one (1) year from the date Future Corporation ships the Hardware to you (“Delivery
Date”).
4.1.1 Future
Corporation and 3rd Party Software: All Future Corporation and 3rd Party Software
is Licensed to you under the terms of each Software's respective Software
License Agreement for the period as set forth in such Agreement and this shall
represent the limited warranty, if any, of such Software.
4.1.2 Hardware and
Software: Future
Corporation Software, when sold and properly installed on Future Corporation
Hardware Products (collectively in this section “the Hardware Goods”), (a) will
perform substantially in accordance with the accompanying written materials,
and (b) the medium on which the Software is recorded will be free from defects
in materials and workmanship under normal use and service. Any replacement of
the Hardware Goods will be warranted for the remainder of the original warranty
period or thirty (30) days, whichever is longer. You must obtain a Return
Authorisation (RA) number from Future Corporation before returning any Software
or Hardware Goods under warranty to Future Corporation. You shall pay expenses
for shipment of repaired or replacement Goods under warranty to Future
Corporation. You shall pay expenses for shipment of repaired or replacement
Hardware Goods to and from Future Corporation. After examining and testing
returned Hardware Goods, if Future Corporation concludes that such returned Hardware
Goods is not defective, you will be notified, the Hardware Goods returned at
your expense, and a charge made for examination and testing. This Limited
Warranty is void if failure of the Hardware Goods has resulted from accident,
abuse, misapplication, modification, improper calibration by you, you supplied
third party software not intended for use with the applicable Future
Corporation Software, utilisation of an improper hardware or software key or unauthorised
maintenance or repair.
4.2 YOUR REMEDIES: Excluding Future
Corporation and 3rd Party Software where any Limited Warranty, if any, is
governed exclusively by such Software's respective Software License Agreement.
Future Corporation’s sole obligation (and your sole remedy) with respect to
part (a) and (c) of the foregoing Limited Warranty shall be to, at Future
Corporation's absolute discretion, return the fees paid or repair/replace any
defective Goods, provided that Future Corporation receives written notice of
such defects during the applicable warranty period. To the extent permitted by
law, you may not bring an action to enforce its remedies under the foregoing
Limited Warranty more than one (1) year after the accrual of such cause of
action.
4.3 NO OTHER
WARRANTIES: TO
THE EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS EXPRESSLY SET FORTH ABOVE
AND/OR GOVERNED EXCLUSIVELY BY THE FUTURE CORPORATION SOFTWARE LICENSE
AGREEMENT THE GOODS INCLUDING BUT NOT LIMITED TO CUSTOM-MADE GOODS AND/OR
SOFTWARE ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND, AND NO OTHER
WARRANTIES, EITHER EXPRESSED OR IMPLIED ARE MADE WITH RESPECT TO THE GOODS,
INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY OTHER WARRANTIES
THAT MAY ARISE FROM USAGE OF TRADE, CUSTOM OR COURSE OF DEALING. FUTURE
CORPORATION DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING
THE USE OF OR THE RESULTS OF THE USE OF THE GOODS IN TERMS OF CORRECTNESS,
ACCURACY, RELIABILITY, OR OTHERWISE AND DOES NOT WARRANT THAT THE OPERATION OF
THE GOODS WILL BE UNINTERRUPTED OR ERROR FREE. FUTURE CORPORATION EXPRESSLY
DISCLAIMS ANY WARRANTIES NOT STATED HEREIN.
4.3.1
AUSTRALIAN CONSUMER RIGHTS NOT AFFECTED: THE GOODS COME WITH
GUARANTEES THAT CANNOT BE EXCLUDED UNDER THE AUSTRALIAN CONSUMER LAW. YOU ARE
ENTITLED TO A REPLACEMENT OR REFUND FOR A MAJOR FAILURE AND FOR COMPENSATION
FOR ANY OTHER REASONABLY FORESEEABLE LOSS OR DAMAGE SUBJECT TO SECTION 4.3.1.1
(BELOW). YOU ARE ALSO ENTITLED TO HAVE THE GOODS REPAIRED OR REPLACED IF THE GOODS
FAIL TO BE OF ACCEPTABLE QUALITY AND THE FAILURE DOES NOT AMOUNT TO A MAJOR
FAILURE. OUR SOFTWARE PRODUCTS COME WITH A NINETY (90) DAY LIMITED WARRANTY
GIVEN BY FUTURE CORPORATION, AS SET OUT IN THE SOFTWARE LICENSE AGREEMENT. IF
YOUR PRODUCTS DO NOT PROVIDE THE GENERAL FEATURES AND FUNCTIONS DESCRIBED IN
THE USER DOCUMENTATION IN THE NINETY (90) DAY PERIOD AFTER DELIVERY TO YOU,
PLEASE CONTACT FUTURE SUPPORT AT: https://future.support/. WITH DETAILS OF THE
SOFTWARE’S NAME, PSN, SLN OR HARDWARE SERIAL NUMBER, AND PROOF OF PURCHASE. THE
BENEFITS UNDER THIS WARRANTY ARE IN ADDITION TO OTHER RIGHTS AND REMEDIES THAT
YOU MAY HAVE UNDER AUSTRALIAN CONSUMER LAW.
4.3.1.1
YOUR RESPONSIBILITY TO ACT REASONABLY: IN ADDITION TO SECTION 4.3.1
(ABOVE) WHICH IN NO WAY IS ALTERED BY THIS SECTION 4.3.1.1, YOU
ACKNOWLEDGE AND AGREE WITH FUTURE CORPORATION, ITS AFFILIATES AND AUTHORISED
DEALERS THAT YOU SHALL TAKE ALL REASONABLE MEASURES AND/OR STEPS TO AVOID AND
REDUCE DAMAGES AND/OR LOSSES WHEN USING THE SOFTWARE, BY (I) MAKING A BACK-UP
COPY OF THE SOFTWARE, AND ITS COMPUTER DATA AND THE SOFTWARE’S OUTPUT FILES
(YOUR WORKS), AND (II) KEEPING THE SOFTWARE UPDATED ON A REGULAR BASIS, AND
(III) ENSURING YOUR COMPUTER’S OPERATING SYSTEM REMAINS UP TO DATE, AND (IV)
KEEPING YOUR COMPUTER FREE OF ANY MALICIOUS SOFTWARE, AND (V) HAVING ACCESS TO
THE INTERNET WHEN USING THE SOFTWARE, AND (VI) MAKING YOUR LICENSES PAYMENTS ON
TIME (IF APPLICABLE).
4.4
NON-AUSTRALIAN CONSUMER RIGHTS NOT AFFECTED: YOU MAY HAVE ADDITIONAL
CONSUMER RIGHTS UNDER YOUR JURISDICTION, WHICH THESE TERMS AND CONDITIONS OF SALE
CANNOT CHANGE.
5. NO LIABILITY
5.1 NO LIABILITY FOR
CONSEQUENTIAL DAMAGES: EXCEPT FOR FUTURE CORPORATION SOFTWARE AND THE
EXCLUSIVE REMEDY SET FORTH IN SECTION 2.8.2 (CONSTRAINED BY SECTIONS 2.5.7,
2.9, AND 2.10) OF THE FUTURE CORPORATION SOFTWARE LICENSE AGREEMENT, IN NO EVENT WILL FUTURE CORPORATION, ITS AFFILIATES,
AND/OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS
WHATSOEVER INCLUDING ANY SPECIAL, CONSEQUENTIAL, INDIRECT, ECONOMIC OR
INCIDENTAL DAMAGES, LOST TIME, LOST PROFITS OR LOST SAVINGS, ANY DAMAGES
RESULTING FROM BUSINESS INTERRUPTION, LOST DATA, OR TO BUSINESS AND/OR PERSONAL
REPUTATION, PERSONAL INJURY (INCLUDING DEATH) OR FAILURE TO MEET ANY DUTY OF
CARE, OR CLAIMS BY A THIRD PARTY ARISING FROM THIS AGREEMENT, EVEN IF FUTURE
CORPORATION, ITS AFFILIATES, ITS SUPPLIERS AND/OR AUTHORISED DEALERS AND/OR A
FUTURE CORPORATION REPRESENTATIVE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
LOSS, DAMAGES, CLAIMS OR COSTS. FUTURE CORPORATION’S AGGREGATE LIABILITY AND
THAT OF ITS AFFILIATES, AND/OR ITS SUPPLIERS UNDER OR IN CONNECTION WITH THIS
AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THE GOODS AND/OR FEES PAID
FOR A NONEXCLUSIVE LICENSE, IF ANY. THIS LIMITATION WILL APPLY EVEN IN THE
EVENT OF A FUNDAMENTAL, MATERIAL OR SERIOUS BREACH OR A BREACH OF THE
FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT. FUTURE CORPORATION IS ACTING
ON BEHALF OF ITS AFFILIATES, AND/OR ITS SUPPLIERS FOR THE PURPOSE OF DISCLAIMING,
EXCLUDING AND LIMITING OBLIGATIONS, WARRANTIES AND LIABILITY WITH RESPECT TO
THIS AGREEMENT ONLY AND FOR NO OTHER PURPOSE OR RESPECT. IF YOU ARE LOCATED OR
WISH TO TAKE FUTURE CORPORATION SOFTWARE AND/OR GOODS OUTSIDE OF AUSTRALIAN
JURISDICTION YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU DO SO ENTIRELY AT YOUR
OWN RISK. NOTWITHSTANDING THIS AND BECAUSE SOME JURISDICTIONS DO NOT
ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL
DAMAGES, SUCH LIMITATION MAY NOT APPLY TO YOU. IF THE FOREGOING LIMITATION OF
LIABILITY IS NOT ENFORCEABLE BECAUSE FUTURE CORPORATION GOODS SOLD OR LICENSED
TO YOU IS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL,
NON-APPEALABLE JUDGMENT TO BE DEFECTIVE AND TO HAVE DIRECTLY CAUSED BODILY INJURY,
DEATH, OR PROPERTY DAMAGE, IN NO EVENT SHALL FUTURE CORPORATION’S LIABILITY FOR
PROPERTY DAMAGE EXCEED THE GREATER OF THE FEES PAID, IF ANY, FOR THE SPECIFIC
GOODS THAT CAUSED SUCH DAMAGE.
6. SOFTWARE - LIMITED
INDEMNITY AGAINST INFRINGEMENT
6.1 Within Australian
Jurisdiction: See
section 2.11.1 of the Software License Agreement.
6.2 Outside Australian Jurisdiction: See section 2.11.2 of
the Software License Agreement.
6.3 Content Files: See section 2.12 and
2.12.1 of the Software License Agreement.
6.4 Corporate Logos: See section 2.13 and
2.13.1 of the Software License Agreement. To avoid any doubt Corporate Logos
are not for use within Australian jurisdiction.
7. SERVICES
7.1 Limited Warranty: Future Corporation
warrants that Services will be performed in a good and workmanlike manner.
Except as expressly stated in the preceding sentence, Future Corporation makes
no express or implied warranties with respect to the Services, including but
not limited to (a) any warranty relating to third-party products or (b) any
warranty concerning the results to be obtained from the Services or the results
of any recommendation Future Corporation may make, including without limitation
any implied warranties concerning the performance, merchantability,
suitability, non-infringement or fitness for a particular purpose of any of the
deliverables or of any system that may result from the implementation of any
recommendation Future Corporation may provide. In order to receive warranty
remedies, deficiencies in the Services must be reported to Future Corporation
in writing within 90 days of completion of the Services.
7.2 Limitation of
Liability: Future
Corporation is not liable for any incidental, indirect, special, or consequential
damages arising out of or in connection with the Services provided by Future
Corporation, including without limitation loss of use of the Software or any
other software or data, including inability to achieve a particular result,
even if Future Corporation has been advised of the possibility of such damages
or even if the damage is the direct result of an instruction or suggestion made
by Future Corporation. Except for claims that the Services caused bodily injury
(including death), Future Corporation’s total liability arising out of or in
connection with any event or series of connected events occurring in connection
with the Services shall not exceed the amount of fees paid under the separate
written agreement between you and Future Corporation. These provisions allocate
the risks under the separate written agreement between you and Future
Corporation. Future Corporation’s pricing reflects this allocation of risk and
the limitation of liability specified herein.
7.3 High Risk
Activities: You
acknowledge and agree that Future Corporation has not tested or certified its
Services for use in high risk applications including medical life support,
nuclear power, mass and air transportation control, or any other potentially
life critical uses and make no assurances that the Services are suitable for
any high risk uses.
7.4 Indemnification: You accept
responsibility for, and agree to indemnify and hold Future Corporation harmless
from, any and all liability, damages, claims, or proceedings arising out of (a)
the failure of you to obtain the appropriate license, intellectual property
rights, or any other permissions required to support any Goods or Future
Corporation’s performance of the Services, including but not limited to, the
right to make any copies or reproductions of any of your software or (b) any
inaccurate representations regarding the existence of an export license or the
eligibility for export of software or other materials without a license.
8. GENERAL &
TECHNICAL SUPPORT
8.1 Future Corporation
Software: All
Future Corporation Software is Licensed to you under the terms of the Software
License Agreement for the period as set forth in such Agreement and this shall
represent the only Technical Support provided, if any, for the Software.
8.2 Future Corporation
Hardware and Services, and 3rd Party Software: Unless expressly
stated in the Price Materials or in a separate Agreement duly signed by an authorised
Future Corporation supervisor or manager Future Corporation Hardware and
Services, and 3rd Party Software are in general sold or Licensed without any
Technical Support.
8.3 No Harassment
Policy:
No member of our staff or any employee of Future Corporation is required to
deal with you either face to face, over the phone, in correspondence, via
tickets or email, if you are exhibiting threatening, abusive or violent behaviour.
In any of these circumstances a member of staff has the right to refuse to
serve or assist you. Threatening behaviour is defined as, but not limited to,
threats of violence to members of staff or any other person which is, for example,
sexist, racist, gendered, or homophobic, including intimidating language,
swearing and/or aggressive body language. Should you continue to exhibit
threatening, abusive, or violent behaviour after being asked to cease and
desist, Future Corporation reserves the right to refuse serving or supporting
you, either (i) temporarily or (ii) permanently in its absolute discretion.
9. GOVERNING LAW
9.1 Australia: You hereby acknowledge
reading these Terms and Conditions, understanding them and agree to be bound by
them. A waiver of any provision of this agreement shall not be construed as a
waiver or modification of any other term hereof. With respect to all applications
and orders accepted by Future Corporation in Australia, disputes arising in
connection with these Terms and Conditions of Sale shall be governed by the
laws of the State of Victoria which shall govern the
interpretation of this Agreement and applies to claims for breach of it.
Australian Commonwealth law and the laws of your state or territory may govern
other claims, including claims under state consumer protection laws, unfair
competition laws, and in tort. Notwithstanding this, you acknowledge and agree
with Future Corporation that any and all claims by you shall be brought in the
state of Victoria in any Melbourne court of competent jurisdiction.
9.2 Outside
Australia: Notwithstanding your usual location and jurisdiction you
acknowledge and agree with Future Corporation, its Affiliates, and/or its
Suppliers that the interpretation of this Agreement and any and all claims
brought by you for any breach of this Agreement, regardless of “conflict of
laws” or “private international law” principles, shall be brought under the
exclusive jurisdiction of Victorian State, and only to the extent applicable
Australian Commonwealth law.
10. TERMINATION
10.1
TERMINATION OF AGREEMENT: Except for where expressly provided in
this Agreement or in the Software License Agreement if any breach of this
Agreement or Software License by you continues for more than thirty (30) days
after receipt of written notice of such breach by Future Corporation, Future
Corporation may terminate this Agreement or Software License by written notice
to you, whereupon this Agreement and/or Software License and all rights granted
to you therein shall immediately cease. In the event of any conflict between the terms
of section 3.7.2 of the Software License Agreement and
any express term therein requiring immediate termination for breach of the
Software License Agreement, the express terms of such other section shall
govern. You may terminate only the Software License
at any time by providing written notice to Future Corporation. In the event of
termination of the Software License Agreement by you and except for section
III. of the Software License Agreement you (i) acknowledge that such
termination shall not entitle you, any other or third party to any refund or
credit from Future Corporation, its Affiliates and/or its Authorised Dealers;
and (ii) you shall: (a) obtain a Return Authorisation number from Future Corporation; and (b) promptly uninstall and where
applicable deactivate and/or deregister the Software; and (c) return any media
and other associated materials including the hardware security device (if
applicable) to Future Corporation or the place of purchase; and (d) obtain a
receipt for such return as evidence of such termination of this License
Agreement.
11. GENERAL PROVISIONS
11.1 EXCLUSIONS: This Agreement specifically
excludes (i) that body of law applicable to choice of
law, and (ii) the United Nations Convention on Contracts for the International
Sale of Goods and any legislation implementing such Convention, if otherwise
applicable.
11.2 TRANSLATION: The English version of this
Agreement will be the version used when interpreting or construing this
Agreement. Any translation of these Terms and Conditions of Sale into any other
languages shall be for convenience of reference only.
11.3 NO WAIVER: The waiver of, or failure to
enforce, any breach or default by Future Corporation, its Affiliates, and/or its Authorised
Dealers against you herein, shall not constitute the
waiver of any other or subsequent or continuing breach or default by Future
Corporation, its Affiliates, and/or its Suppliers
against you.
11.4 SEVERABILITY: If and to the extent any
provision of this Agreement is held illegal, invalid, uncertain, or
unenforceable in whole or in part under applicable law, such provision or such
portion thereof shall be ineffective as to the jurisdiction in which it is
illegal, invalid, uncertain, or unenforceable to the extent of its illegality,
invalidity, uncertainty, or unenforceability and shall be deemed modified to
the extent necessary to conform to applicable law so as to give the maximum
effect to the intent of the parties. The illegality, invalidity, uncertainty,
or unenforceability of such provision in that jurisdiction shall not in any way
affect the legality, validity, certainty, or enforceability of any other
provision of this Agreement in any other jurisdiction.
11.5 INDEMNITY: You hereby agree that
you shall indemnify and hold Future Corporation, its Affiliates, its Suppliers
and its Authorised Dealers harmless from and against any and all claims,
actions, suits, proceedings, costs, expenses, damages, and liabilities,
including legal fees (on an attorney/solicitor and own client basis) arising
out of, connected with, or resulting from (i) your or (ii) your colleagues,
employees, agents, delegates or family members and/or any other or third party
that you provide, facilitate or otherwise allow for the (a) improper use or
misuse; or (b) otherwise unlawful or unconscionable use of the Goods described
herein.
11.6 ERRORS AND
OMISSIONS EXCLUDED (“E&OE”): Every effort is made by Future Corporation to
ensure the accuracy of any technical, factual, textual, or other typographical
information made available to you in relation to the Goods. Future Corporation
accepts no liability for any damage or injury arising from any errors or
omissions in such technical, factual, textual, or other typographical
information made available to you, other or any third party. No contract can be
invalidated due to printing or clerical errors. Any descriptions of Goods are
for guidance only and shall not constitute the contract “sale by description”.
11.7 COSTS, EXPENSES
AND DISBURSEMENTS: All
costs, expenses or disbursements incurred by Future Corporation in the
maintenance of your account including debt collection agency fees and legal
costs arising: (i) as a consequence of your default in observing the Terms and
Conditions of Sale herein; or (ii) as a result of any of your checks/cheques
being dishonoured; or by reason of Future Corporation requiring any further
security to be provided; shall be payable by you upon demand.
11.8 CERTAIN TERMS
SHALL SURVIVE:
The provisions of sections: I., II., III., 1.2, 2.1,
2.2, 2.3, 3.1, 3.1.1, 3.1.2, 3.3.3, 3.4.4, 3.5.2, 3.5.3, 3.5.4, 3.6.1.1, 3.6.2,
3.6.3, 3.6.4, 3.8.4, 3.8.5, 4.1, 4.1.1, 4.1.2, 4.2, 4.3, 4.3.1, 5.1, 6.1, 6.2,
6.3, 6.4, 7.1, 7.2, 7.3, 7.4, 9.1, 9.2, 10.1, 11.3, 11.4, 11.5, 11.6, 11.7,
11.8, 11.9, and 11.10 of this Agreement will survive the termination,
cancellation or rescission of this Agreement, howsoever caused, but this will
not imply or create any continued right to use the Goods or any part thereof
after such termination, cancellation or rescission of this Agreement.
11.9 VARIATION: Future Corporation
reserves the right to unilaterally vary, or amend, these Terms & Conditions
of Sale at any time, and from time to time, without notice. It is your
responsibility to review these Terms and Conditions of Sale prior to each
purchase of any and all Goods.
11.10 ENTIRE AGREEMENT:
These
Terms and Conditions of Sale (i) contain the entire agreement between you and
Future Corporation with respect to the Goods ordered by you, except for any
Software License Agreement described and/or referred to herein to which these
Terms and Conditions of Sale are appended; and (ii) for any and all Goods
purchased under this Agreement, these Terms and Conditions of Sale shall
supersede and replace any and all prior and/or existing oral and/or written
agreements, arrangements and/or understandings between the parties. This
Agreement shall enure to the benefit of and is binding upon the heirs, personal
representatives, successors and permitted assigns of the parties hereto. Time
is of the essence of this Agreement. All covenants and obligations applicable
to you shall be performed pursuant to this Agreement, including all payments to
be made by you hereunder, shall survive the expiration or earlier termination
of this Agreement. If more than one party is named in, or subject to this
Agreement, the liability of each shall be joint and several. In the event of
any conflict between such Software License Agreement, the provisions of the
Software License Agreement shall govern. To avoid any doubt these Terms and
Conditions of Sale may not be modified and/or appended by different terms,
and/or expanded by you, another or third party without the written consent and
duly signed by an executive director or C.E.O. of Future Corporation.
12.
LINKS TO FUTURE CORPORATION RELATED LEGAL DOCUMENTS & SUPPORT
12.1
Software
License Agreement (EULA) is located here:
https://www.iifuture.com/shared/legal/en/eula.html
12.2
Terms of
Use is located here:
https://www.iifuture.com/shared/legal/en/terms_of_use.html
12.3
Privacy Policy is located here:
https://www.iifuture.com/shared/legal/en/privacy.html
12.4
Future Support is located here:
https://future.support
Last
revised October 2022.