End User Licence Agreement For FoodStorm Catering Management Software
CaterXpress End User Licence Agreement
This is an agreement between You and CaterXpress Pty Ltd (ABN 88 123 374 916) of 25 Adams Lane, Berwick, Victoria, 3806, Australia (“CaterXpress”) and governs your Use of the CaterXpress Software. “You” and “Your” means any person accessing, viewing, using or licensing the Software under this EULA. “Use” or “Using” means to download, install, activate, access or otherwise use the Software. “Software” means the CaterXpress internet-based catering management application and related online services, which runs and is hosted on the CaterXpress site and any Enhancements made available to You by CaterXpress and licenced to You by CaterXpress. “Enhancement” means any modifications, updates, variations or revisions of the Software.
This agreement, and any supplemental licence terms (collectively, the “EULA”) govern Your Use of the Software.
1. ACCEPTANCE OF TERMS
By Using the Software, You agree to be bound by the terms of the EULA. If you are entering into this EULA on behalf of an entity, You represent that You have authority to access the Software on behalf of the primary licensor that has the main licence with CaterXpress (which may be the organisation that employs You), and that you have authority to bind that entity. If you do not have such authority or You do not agree to the terms of the EULA, neither You nor the entity may Use the Software and You and the entity must cease using the Software immediately.
You may not transfer Your right to Use the Software to someone else, as CaterXpress is giving You personally the right to Use the Software.
Subject to compliance with this EULA, CaterXpress grants You a limited, non-exclusive and non-transferable licence to Use the Software solely for Your internal operations. In the event that CaterXpress requires You to register as an end user, Your licence is valid only if the registration is complete and accurate.
The Software may contain open source software, subject to separate licence terms made available with the CaterXpress Software.
If the Software is licenced for a specified term, then Your access to the licence is valid solely for the applicable term. Your right to Use the Software begins on the date the Software is made available and continues until the end of the specified term, unless otherwise terminated in accordance with this Agreement.
CaterXpress retains all title, interest and ownership of all Intellectual Property Rights in and to the Software, including copies, improvements, Enhancements, derivative works and modifications thereof. Your rights to Use the Software is limited to those expressly granted by this EULA. No other rights with respect to the Software or any related Intellectual Property Rights are granted or implied.
“Intellectual Property Rights” includes (without limitation) any present and future right to, and any present and future interest in, any patent rights, design rights, copyrights, trade mark rights (whether registered or unregistered), trade name and all goodwill rights associated with such works, copyright, trade secrets and any other proprietary right or form of intellectual property (protectable by registration or not) in respect of any know-how, technology, concept, idea, data, component, tool, library, methodology, routine, program or other software (including in source and object codes), specification, formula, drawing, document, programme, design, system, process, logo, mark, style or other thing of a similar nature, conceived, used, developed or produced by any person.
4. YOUR WARRANTIES
You warrant that:
- all passwords, usernames and account information used for, in connection to or associated with the Software will remain confidential and will not be provided to third parties, or as otherwise expressly agreed with CaterXpress;
- You will not allow or enable the unauthorised use, disclosure, distribution or other form of access to the Software to any third party;
- You will not attempt to gain unauthorised access to any coding, systems or networks connected to or associated with the Software through hacking, password mining or any other means;
- any data You upload in connection with the Software will not expose CaterXpress to a risk of any claim, legal or administrative action or prosecution;
- You will not use the Software, or other product or service supplied by CaterXpress to send unsolicited and/or malicious emails or other communications;
- You will not, either directly or indirectly interfere with the operation of the Software or any other product or service provided by CaterXpress;
- You will not reverse-engineer, reverse-assemble, decompile, or otherwise attempt to discover source code, formulas or processes in respect of the Software behind the CaterXpress system or any other product or service provided by CaterXpress;
- You will not copy, record, reproduce, alter, modify, create derivative works, or publicly display, any part of any content from the Software (including any confidential information or Intellectual Property Rights contained within the Software) or other product or service except where CaterXpress has given You written permission;
- You will not use the Software or other product or service in a way that is prohibited by law, regulation or government order in any relevant jurisdiction, or in a way that violates a third party’s legal rights;
- You will not use the Software in a way that will enable or assist with the creation of a competitive product or service;
- You will not use the Software in a way that could harm or impair anyone else’s use of it;
- You will not cause or allow the upload of any viruses or malicious software, or any unlawful, pornographic, harmful or otherwise offensive materials into the CaterXpress system;
- You will not transfer, sublicence, or assign Your rights under this licence to any other person or entity unless expressly authorised by CaterXpress in writing; and
- You will not leave the Software unattended and will lock your computer or logout of the Software at all times when You are away from the computer or device.
5. CATERXPRESS WARRANTY AND DISCLAIMER
CaterXpress warrants and represents that the Software will be free from any viruses, Trojan horses, worms, spyware or other malicious code (together, ‘Malicious Code’) except for any Malicious Code contained in Your uploaded documents or otherwise originating from You.
This warranty does not apply if the Software, or any other equipment upon which the Software is authorised to be used:
- has been altered, except by CaterXpress,
- has not been operated, repaired, or maintained in accordance with instructions supplied by CaterXpress or
- has been subjected to abnormal physical or electrical stress, misuse or negligence.
Except as expressly set forth above, CaterXpress provides the Software “as is” and expressly disclaims all warranties, conditions or other terms, whether express, implied or statutory, including without limitation, warranties, conditions or other terms regarding merchantability, fitness for a particular purpose, design, condition, capacity, performance, title, and non-infringement. CaterXpress does not warrant that the Software will operate uninterrupted or error-free or that all errors will be corrected. In addition, CaterXpress does not warrant that the Software or any equipment, system or network on which the Software is used will be free of vulnerability to intrusion or attack.
6. LIMITATIONS AND EXCLUSIONS OF LIABILITY
In no event will CaterXpress be liable for the following, whether arising out of the use or inability to use the Software or otherwise, even if a party been advised of the possibility of such damages:
- indirect, incidental, exemplary, special or consequential damages;
- loss or corruption of data or interrupted or loss of business; or
- loss of revenue, profits, goodwill or anticipated sales or savings. All liability of CaterXpress, its affiliates, officers, directors, employees and agents collectively, to You, whether based in warranty, contract, tort (including negligence), or otherwise, shall not exceed in the aggregate the monthly licence fee applied to the Software.
7. TERM AND TERMINATION
This EULA shall remain effective until terminated or until the expiration of the applicable licence term. You may terminate the EULA at any time by ceasing use of the Software. This EULA will immediately terminate if You breach its terms. Upon termination of this EULA, You will destroy all copies of Software in Your possession or control.
Unless You have the prior written consent of CaterXpress You will:
- keep confidential information confidential and not use or disclose to any person unless for the purposes of performing this EULA, obtaining professional advice or as required by law; and
- take all reasonable steps to keep secure all confidential information coming into its possession or control.
10. TRANSFER AND ASSIGNMENT
You may not transfer or assign these licence rights to another person or entity. Any attempted transfer or, assignment will be void and has no effect.
Sections 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 will survive termination or expiration of this EULA.
12. GOVERNING LAW
This EULA is governed by the law of Victoria, Australia and the Victorian courts and their courts of appeal will have exclusive jurisdiction.
If any portion of this EULA is found to be void or unenforceable, the remaining provisions of the EULA will remain in full force and effect. Except as expressly stated or as expressly amended in a signed agreement, the EULA constitutes the entire agreement between the parties with respect to the licence of the Software and supersedes any conflicting or additional terms.