Onquevision - Your Digital Signage Solution

End User Licence Agreement
Date of document: 1 June 2010

IMPORTANT: PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY. BY USING THE SOFTWARE, YOU CONFIRM THAT YOU ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE SOFTWARE AND RETURN IT TO US. IF YOU HAVE ACQUIRED THE SOFTWARE AS PART OF A PRE-CONFIGURED COMPUTER SYSTEM ON WHICH THE SOFTWARE HAS BEEN INSTALLED AND DO NOT AGREE TO THIS AGREEMENT, YOU MUST PROMPTYLY CEASE USING THE HARDWARE/SOFTWARE AND RETURN THE PRE-CONFIGURED COMPUTER SYSTEM WITH THE SOFTWARE TO US. This End User License Agreement (“Agreement”) is entered into between M2 Technology Pty Ltd (“M2 Technology”), and the purchaser, licensee or End User (“Licensee”) of the Software (as defined below).
1.	DEFINITIONS “Campaigns” means the creation, development and management of content, multi-media files, and/or the planning or scheduling of information using the Software. “Commencement Date” means the ship date of the Software from M2 Technology. “Documentation” includes the user guides, tutorials, printed instructions, reference manuals, and any other explanatory materials developed by M2 Technology for use in connection with the Software that accompany or are stored on or in the Software. “End User” means the Licensee or any person or entity (including, for the avoidance of doubt, any employee or agent of the Licensee) that uses the Software. “Software” means the onquevision software supplied by M2 Technology including Documentation for the software, upgrades and Software Updates and content integrated into the product. “Software Updates” includes bug fixes, documentation improvements and feature additions.

2.	GRANT OF LICENCE
2.1	Subject to the terms and conditions set forth in this Agreement, M2 Technology hereby grants to the Licensee a non-exclusive, non-transferable, non-sublicensable license for “non-profit” use of the Software. “Non-profit” means that the Licensee do not charge or accept compensation for the use of the Software.

2.2	Use of the Software will include use of some third party materials included in the Software and may be subject to other terms and conditions found in a separate license agreement. By agreeing to this Agreement, you also agree to the third party terms and conditions. The third party terms and conditions can be found at: http://www.adobe.com/products/eulas/ and http://www.adobe.com/products/eulas/pdfs/PlatformClients_PC_WWEULA_Combined_20100108_1657.pdf

2.3	This Agreement is effective as of the date at which the Licensee accepts the license terms as set forth above, and will continue unless terminated. M2 Technology remains the owner of all rights, titles and interests in the Software and Documentation.

2.4	Scope of License and Use The Licensee may use the Software on only one, single-user computer per license. The Licensee may internally transfer the Software to a different, single-user computer, provided that the Software is permanently uninstalled and/or deleted from the computer from which the software is transferred. The Licensee must pay the initial software fee and the ongoing license fee in order to use and continue using the Software. The Licensee may publish or transmit Campaigns for playback (i) to one or more properly licensed individual onquevision computer; and (ii) to an audio visual network of screens showing identical content controlled by a properly licensed individual onquevision computer. Notwithstanding the above, the Licensee shall not directly or indirectly, use or cause to be used the Campaigns without having properly licensed Software. The Software is licensed, not sold. This Agreement only gives the Licensee some rights to use the Software. M2 Technology reserves all other rights. The Licensee may use the Software only as expressly permitted in this Agreement. Except expressly permitted, or as otherwise agreed to in writing by M2 Technology, the Licensee shall not, and shall not permit any user of the Software to: (i) work around any technical limitations in the Software or attempt to discover the source code of the Software; (ii) publish or place the Software and Documentation for others to copy; (iii) make more copies of the Software and Documentation; (iv) sell, lease, rent, redistribute, assign, sublicense, or transfer any portion of the Software and Documentation; (v) reproduce, alter, translate, modify, adapt, decompile, merge with another software, reverse engineer or disassemble the Software and Documentation; (vi) offer the use of the Software and Documentation to third parties as an application service provider, service bureau or remote-hosted service; (vii) deliver, export, transfer or otherwise distribute the Software and Documentation acquired hereunder; or (viii) create derivative works based upon the Software and Documentation. M2 Technology remains the owner of all rights, titles and interests in the Software and Documentation.

3.	CONFIDENTIAL INFORMATION, TITLE AND COPYRIGHTS
3.1	The Licensee acknowledges that the Software, the Documentation, Software Updates, enhancements, modifications, additions, new releases of or to the Software contain confidential information of, are trade secrets of, and are proprietary to M2 Technology and that title to such materials is and shall remain with M2 Technology. The Licensee shall maintain in strict confidence the M2 Technology confidential information, but, at a minimum, to take those precautions that it utilises to protect its own confidential information.

3.2	All applicable rights to patents, copyrights, trademarks and trade secrets in the Software and other proprietary materials are and shall remain with M2 Technology and are protected by Australian copyright laws and international treaties. The Licensee shall not assert any right, title or interest in the Software or other materials provided to the Licensee under this Agreement, except for the limited license rights expressly granted to the Licensee hereunder.

3.3	The Licensee’s use of the Software must comply with all intellectual property laws, including applicable copyright laws. Content you access by use of the Software may be protected by copyright and other intellectual property laws. If the Licensee is not the owner or rights holder of such content, or are not authorised by the owner or rights holder of such content, the Licensee should be aware that such use may be violating the intellectual property rights of the owners of such content. If the Licensee is not the owner or rights holder of such content, and if the Licensee distributes such content or otherwise make it available to anyone else in violation of the intellectual property rights of the owners of such content, the Licensee will be in violation of this Agreement.

3.4	The Licensee shall not obscure, alter or remove any copyright, trademark, trade names, product names, logos or other proprietary notices or legend contained on or included in the Software or Documentation.

4.	LIMITED WARRANTIES
4.1	Software Limited Warranty and Remedy. A. Provided that the Licensee is not in breach of any of its obligations under this Agreement, M2 Technology warrants for a period of thirty (30) days from the Commencement Date (“Warranty Period”), that the Software will substantially conform to the Documentation provided by M2 Technology with the Software. The Licensee’s sole remedy and M2 Technology’s sole obligation under this Agreement for breach of this warranty is, at M2 Technology’s sole option, (i) the remedy of the nonconformity or (ii) the refund of the price paid for the media and supplied hardware (if applicable). Any request for the above remedies must be made within the Warranty Period to M2 Technology. In the event of a refund, this Agreement will immediately terminate without further notice, and Licensee will have no further rights or license to use the Software or Documentation. B. Any replacement hardware, software or media will be warranted for the remainder of the original Warranty Period or for an additional thirty (30) days whichever is longer. C. This limited warranty is void if nonconformance of the Software results from or is related to the (i) improper installation or operation of the Software by or on behalf of the Licensee, (ii) failure of Licensee’s hardware or non-M2 Technology software, (iii) incompatibility of such hardware and non-M2 Technology software systems with the Software, (iv) alteration, modification or unauthorised integration of the Software by or on behalf of the Licensee, or (v) accident, abuse or misapplication of the Software.

4.2	Disclaimer of Warranties. M2 TECHNOLOGY MAKES NO WARRANTY, REPRESENTATION OR PROMISE EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, M2 TECHNOLOGY DISCLAIM AND EXCLUDE ANY AND ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR RESULTS REGARDLESS OF WHETHER M2 TECHNOLOGY KNOWS OR HAD A REASON TO KNOW OF THE LICENSEE’S PARTICULAR NEEDS. M2 TECHNOLOGY DO NOT WARRANT THAT THE SOFTWARE OR DOCUMENTATION WILL SATISFY THE LICENSEE’S REQUIREMENTS; THAT THE SOFTWARE AND DOCUMENTATION ARE WITHOUT DEFECT OR ERROR; OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED. NO EMPLOYEE, AGENT, DEALER OR DISTRIBUTOR OF M2 TECHNOLOGY IS AUTHORISED TO MODIFY THIS LIMITED WARRANTY, NOR TO MAKE ANY ADDITIONAL WARRANTIES.

5.	LIMITATION OF LIABILITY
5.1	IN NO EVENT SHALL M2 TECHNOLOGY AND OUR AUTHORISED REPRESENTATIVES BE LIABLE FOR ANY PERSONAL INJURY, OR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOST SAVINGS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS OR COMMERCIAL DAMANGES OR LOSSES) ARISING OUT OF OR RELATED TO THE LICENSEE’S USE OR INABILITY TO USE THE SOFTWARE, HOWEVER CAUSED, REGARDLESS OF WHETHER M2 TECHNOLOGY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. M2 TECHNOLOGY’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS LICENSE OR THE SOFTWARE AND DOCUMENTATION IS LIMITED TO THE AMOUNT ACTUALLY PAID FOR THE LICENSE.

6.	INDEMNIFICATION
6.1	M2 Technology will have no liability for, any claim of infringement caused or alleged to be caused by: (i) the use of the Software, hardware, data, or content, including but not limited to software, hardware, data, or content of the Licensee; (ii) infringement that would have been avoided without the use or combination of the Software, hardware, content, or data; (iii) the presence of any alteration or modification of the Software by the Licensee or any third party acting on Licensee's behalf; or (iv) the Licensee's continuing the allegedly infringing activity after being notified thereof or after being informed and provided with modifications that would have avoided the alleged infringement.

6.2	The Licensee shall indemnify, defend and hold M2 Technology, its directors, officers, agents and employees harmless from any claims, demands, or causes of action whatsoever by a third party against M2 Technology arising as a result of the Licensee’s use or operation of the Software. For the avoidance of doubt, and without limiting the scope of the immediately preceding sentence, the Licensee shall indemnify, defend and hold M2 Technology, its directors, officers, agents and employees harmless from any third party claims, demands, or causes of action whatsoever arising from or related to the display, broadcast, reproduction, performance or other use or distribution of audio, visual, graphical and textual information developed by or on behalf of Licensee and not included in the Software.

7.	TERMINATION
7.1	The Licensee may terminate this Agreement after the minimum term as described in the signed purchase order and by giving 30 day’s notice to M2 Technology of its intent. The software fees and any license fee paid are not refundable and M2 Technology will have no obligation to refund any amounts paid by Licensee under this Agreement upon its termination. The Licensee is liable for outstanding software fees and license fees up to and including the termination date and must be paid in full by the Licensee.
7.2	In the event that the Licensee terminates this Agreement for any reason before the end of the minimum term, the Licensee shall be liable for all software fees and license fees up to and including the end of the minimum term, unless otherwise agreed to in writing with M2 Technology.
7.3	M2 Technology may terminate this Agreement and all licenses granted hereunder upon thirty (30) days prior written notice if the Licensee fails to comply with any of the terms and conditions of this Agreement, and such noncompliance is not cured within such thirty (30) day period.
7.4	M2 Technology may terminate this Agreement and all licenses granted hereunder at any time without reason to the Licensee by giving thirty (30) days written notice to the Licensee. If the Agreement is terminated under this clause, the Licensee is liable for outstanding software fees and license fees up to and including the termination date and must be paid in full by the Licensee. Any license fees paid by the Licensee beyond the termination date will be refunded to the Licensee.
7.5	The software fee and hardware costs are not refundable under any circumstances unless expressly indicated in this Agreement.
7.6	Upon any termination of this Agreement, the Licensee must cease all use of the Software, and return to M2 Technology all copies of the Software, together with the Documentation, or certify to M2 Technology’s reasonable satisfaction the destruction or permanent deletion of all copies of the Software and Documentation from its computer systems.
8.	GENERAL
8.1	Notices Any notice required or permitted to be given by the Licensee hereunder shall be in writing and shall be deemed to have been duly given (i) upon hand delivery, (ii) on the third day following delivery to the postal service as certified mail, return receipt requested and postage prepaid, or (iii) on the first day following delivery to a recognised overnight courier service, fee prepaid and return receipt or other confirmation of delivery requested. Any such notice shall be delivered or sent to M2 Technology at the address being PO Box 588 Applecross WA 6953.

8.2	Assignment The Licensee may not assign or transfer any rights, duties, obligations or privileges under this Agreement without the prior written consent of M2 Technology. A change of control or ownership shall be deemed to be an assignment under this Agreement. The Licensee shall remain liable and responsible to M2 Technology for the performance and observance of all duties and obligations if consent from M2 Technology is not sought and granted. If M2 Technology consent to the assignment or transfer, the Licensee must transfer this Agreement, the Software and Documentation, including all copies, updates, prior versions to such person or entity and that the Licensee retain no copies of the Software and Documentation.

8.3	Severability Should any part or provision of this Agreement be held unenforceable or in conflict with the law of any jurisdiction, the validity of the remaining parts or provisions shall not be affected and remain in full force.

8.4	Limitation on Effect of Waiver Failure on the part of M2 Technology to exercise, or M2 Technology’s delay in exercising, any of M2 Technology’s rights hereunder shall not be construed as a waiver or waiver of other breaches of this Agreement. Any single or partial exercise by a party of any right shall not preclude any other or future exercise thereof or the exercise of any other right in the Agreement.

8.5	Changes to this Agreement M2 Technology reserves the right to change, modify, delete or add to the clauses contained in this Agreement at any time. The Licensee will be notified of such alterations and by continuing to use the Software, the Licensee is deemed to indicate agreement to comply with the revised Agreement. If the Licensee does not agree to the alterations, the Licensee must cease using the Software immediately and the Agreement is terminated as per section 7.

8.6	Force Majeure Neither party shall be in default if failure to perform any obligation hereunder is caused solely by unforeseen supervening conditions beyond that party’s reasonable control, which could not have been prevented by the non-performing party’s reasonable precautions, commercially accepted processes or substitute services, including acts of God, civil disturbances, strikes and labor disputes.

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