Advatek Assistant 2 for macOS

SOFTWARE LICENCE AGREEMENT

Permission to use this Advatek Assistant (“Software”) provided by Advatek Lighting Pty Ltd ABN 23 164 273 107 (“Advatek”) and related accompanying documentation made available by Advatek for use with the Software (“Documentation”) is conditional upon you (“the Licensee”) agreeing to the terms of this Software Licence Agreement (“Agreement”), as may be updated from time to time.

If applicable, the terms of this Agreement are deemed incorporated into our services agreement with you for access to and use of our products. By downloading, clicking “I Accept”, installing or using all or any portion of the Software, you acknowledge that you have read and agree to the terms of this Agreement. You must not download, click “I accept”, install or use the Software if you do not agree to the terms of this Agreement.

1. Licence

1. Subject to the terms and conditions of this Agreement and in consideration of the purchase of an Advatek hardware product (“Product”) by the Licensee, Advatek grants to the Licensee a non-exclusive, non-transferable, non-sublicensable and revocable right to:
   1. install and use the Software solely for the purpose for which it is ordinarily used and in connection with the Product only; and
   2. use the Documentation only for the purpose of using the Software,
   for the term of this Agreement, until terminated under clause 4 of this Agreement.
2. Advatek is not required to provide upgrades or new releases in relation to the Software pursuant to this Agreement.
   (“Licence”).

2. Licensee's obligations

The Licensee agrees to:

1. not use the Software and/or the Documentation for any purpose or in any manner other than in accordance with the terms of this Agreement and in connection with the Product;
2. not use the Software in a manner inconsistent with its design;
3. not copy, reproduce, translate, adapt, reverse engineer, make error corrections to, decompile, vary or modify the Software or create any derivative works based upon the Software without the express consent of Advatek, except as expressly authorised by this Agreement or part III division 4A of the Copyright Act 1968 (Cth);
4. not copy, reproduce, adapt or modify the Documentation without the prior written consent of Advatek;
5. not use the Software and/or the Documentation in any way that could damage the reputation of Advatek or the goodwill or rights associated with the Software and/or the Documentation;
6. not give or permit any third party to use, lease, assign, licence, sub-licence, transfer, distribute, disclose, disseminate or publish the Software and/or the Documentation or attempt to do any of these acts, without the prior consent of Advatek;
7. not create, grant or permit to exist a security interest, mortgage, pledge, lien, charge or other similar arrangement over the Software or Documentation;
8. not modify or remove any intellectual property, copyright or proprietary notices on the Software and/or the Documentation; and
9. not do anything that would or might invalidate or put in dispute Advatek’s title and/or rights to or in the Software and/or Documentation.

 3. Intellectual Property rights

1. The Licensee acknowledges that:
   1. all intellectual property rights in the Software and the Documentation and any such copies, reproductions and modifications of such Software and Documentation, remain the property of Advatek; and
   2. it does not hold or obtain any intellectual property rights in the Software or Documentation pursuant to this Agreement.
2. If the Licensee becomes aware of any claim alleging that any of the Software, Documentation or use of the Software or Documentation infringes the rights of any third party or any infringement of the Software and/ or Documentation, the Licensee must promptly notify Advatek and permit Advatek to assist with any and all investigations, negotiations and proceedings relating to the claim.
3. The Licensee confirms and agrees that it will keep confidential all Confidential Information of Advatek and will only use such information for the purpose of the performance of its obligations under this Agreement or with the prior consent of Advatek. Confidential Information is defined as information which, at any time, is disclosed to the Licensee in connection with this Agreement, or is prepared or produced under or in connection with this Agreement, or relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement, whether or not such information is reduced to a tangible form or marked in writing as “confidential”.

4. Termination of Agreement

1. Advatek may terminate this Agreement immediately by revoking the Licence at its sole discretion by notice in writing to the Licensee.
2. Upon termination:
   1. the Licensee’s right to use the Software and Documentation immediately ceases and the Licence granted under this Agreement terminates;
   2. the Licensee must immediately cease using the Software and the Documentation and remove all Software from all such devices the Software has been downloaded and/or used on; and
   3. the Licensee must destroy or otherwise return or dispose of any remaining copies of the Software and Documentation in the manner directed by Advatek.
3. Termination of this Agreement will not affect any rights or remedies which Advatek may have otherwise under this Agreement or at law.

5. Limitation of Liability

1. To the maximum extent permitted by law and subject to any non-excludable consumer guarantees and other non-excludable consumer protection provisions set out in the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth), Advatek make no representations or warranties about the Software, including (without limitation) that:
   1. the Software and/or Documentation is complete, accurate, reliable, up-to-date and suitable for any particular purpose; or
   2. the Software and/or Documentation will be uninterrupted, error-free or free from viruses.
2. To the maximum extent permitted by law, and subject to any liabilities which cannot be excluded under applicable laws, Advatek will not be liable for any loss, damage or expense, howsoever arising (including by negligence), whether direct or indirect and/or whether present, unascertained, future or contingent, (“Liability”) suffered by the Licensee or any third party, arising from or in connection with the Software, Documentation and/or this Agreement.
3. To the maximum extent permitted by law, Advatek will not be liable for any special, consequential or incidental loss or damages, including damages for loss of business or other income or profits, caused or arising as a result of a breach of this Agreement, use of or access to or inability to use or access or in connection with the Software and/or Documentation, the supply of defective Software and/or Documentation and/or in connection with or in relation to this Agreement.
4. Where the law (including without limitation the Competition and Consumer Act 2010 (Cth)) implies a guarantee into this Agreement which may not lawfully be excluded, Advatek’s liability for breach of such guarantee shall be limited at its option, to any one or more of the following:
   1. in the case of goods: replacing the goods or supplying equivalent goods; repairing of the goods; payment of the cost of replacing the goods or acquiring equivalent goods; or payment of the cost of having the goods repaired; and
   2. in the case of services: supplying the services again or payment of the cost of having the services supplied again.
5. The Licensee indemnifies and holds harmless Advatek, its directors, officers, employees, consultants, agents and affiliates from any liability, claims, damages or costs (including, but not limited to, legal fees) arising from or in connection with use of the Software, any wilful misconduct or unlawful, negligent or reckless act or omission of the Licensee, its directors, officers, employees, consultants, agents and affiliates or any breach of this Agreement or any applicable laws by the Licensee. It is not necessary for Advatek, its directors, officers, employees, consultants, agents or affiliates to suffer or incur any liability before enforcing a right of indemnity under this Agreement.
6. If, notwithstanding the other provisions of this Agreement, Advatek is found to be liable for any damage or loss which arises out of or is any way connected with the Software, Documentation or this Agreement, to the maximum extent permitted by law, Advatek limits its maximum aggregate liability to no more than the purchase price paid by the Licensee and received by Advatek for the Product.

6. General

1. This Agreement contains the entire understanding of the parties as to its subject matter and supersedes all prior understandings or representations in relation to the subject matter.
2. Nothing contained in this Agreement creates any relationship of partnership or agency between the parties.
3. The Licensee shall not assign this Agreement and/or any of right under this Agreement without the prior written consent of Advatek. Advatek may assign this Agreement and/or any right under this Agreement without the prior written consent of the Licensee.
4. A provision of or a right under this Agreement may not be waived except in writing signed by the party to be bound.
5. Advatek reserves the right to amend this Agreement, from time to time.
6. If a provision of this Agreement is invalid or unenforceable, it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
7. This Agreement, all disputes arising out of or relating to this Agreement regardless of conflict of laws rules of any jurisdiction is governed by and is to be construed in accordance with the laws of the State of Victoria, Australia. Each party submits to the non-exclusive jurisdiction of the Courts of the State of Victoria, Australia and Courts entitled to hear appeals from these Courts.