End User License Agreement
Gate 13 software licence ('Gate 13') ASP version 1. Introduction 1.1. We provide the Gate 13 Shopping Cart, which is an integrated ecommerce shopping cart application ('Gate 13 Software'). 1.2. We provide access to Gate 13 Shopping Cart through an ASP service. 1.3. This licence sets out the terms on which we permits such access to you. 2. Nature of the ASP service 2.1. An ASP service for software is a service where: 2.1.1. a licensee does not receive or install, and is not entitled to receive or install, a copy of the software; 2.1.2. the software is not installed on computer equipment operated by the licensee, or at the licensee's premises; 2.1.3. the software is installed on computer equipment operated by or for the licensor ('ASP server'); 2.1.4. the functionality of the software that the licensor permits the licensee to use ('browser functionality') is accessible remotely, typically through a customised interface within a web browser that communicates with the ASP server through a secure internet connection ('browser interface'); and 2.1.5. access to the service depends on the licensee having valid and current access permissions that are recognised by the ASP server ('account'). 2.2. In this licence: 2.2.1. a reference to 'using' or 'accessing' Gate 13 Software means only using or accessing its browser functionality through an ASP service; 2.2.2. a reference to "us", "we" or "our" is a reference to SecurePay Pty Ltd ABN 92 088 101 875; 2.2.3. a reference to "you" or "your" is a reference to the end user of the Gate 13 Software. 2.2.4. if we divide browser functionality into designated modules, a reference to browser functionality means only the module/s that you are entitled to use under this licence; and 2.2.5. subject to clause 5.1, a reference to Gate 13 Software includes a reference to any form letters, reports and report structures, and other content comprised in it, and any code on an ASP server that is rendered by a web browser to produce the browser interface, and the browser interface itself. 2.3. We may customise, modify, enhance, adapt, update or replace Gate 13 Software in our absolute discretion, and a reference to Gate 13 Software includes such customization, modification, enhancement, adaptation, update or replacement. 3. Licence to use Gate 13 Software 3.1. We will notify you when your account is ready for use, and provide any user name/s, passwords or other information required to access the account ('account access details'). 3.2. You may then use Gate 13 Software for as long as you: 3.2.1. have our agreement to use it; 3.2.2. pay all fees and charges due to us in respect of the use of Gate 13 Software as and when due; and 3.2.3. comply with this licence. 3.3. Any access to or use of Gate 13 Software by you constitutes acceptance of the terms of this licence. 4. Browser functionality - meaning We will make browser functionality apparent: 4.1. through the design of the browser interface; 4.2. through instruction manuals and other documentation supplied to you; and / or 4.3. by other instructions to you. 5. Ownership 5.1. If we customise the appearance of the browser interface to include copyright material owned by you ('End User branding'), you will continue to own that copyright material. 5.2. Subject to clause 5.1, we will be the sole and exclusive owner of Gate 13 Software and all customisation, modifications, enhancements, adaptations, updates or replacements of it. 5.3. Clause 5.2 applies even to customisation, modifications, enhancements, adaptations, updates or replacements that are made at the request of or specifically for you and / or incorporating know-how, ideas, requests or suggestions made by you. 5.4. Your rights under this licence are not exclusive. We may license Gate 13 Software to anyone else we choose. 5.5. You consent to: 5.5.1. us using your de-identified data and that of your customers, for statistical and marketing purposes; and 5.5.2. receiving promotional or marketing material from us, including by way of email delivery. 6. Using Gate 13 Software - general You must: 6.1. only use or attempt to use browser functionality; 6.2. not attempt to access or control the ASP server except through the browser interface; 6.3. comply with the current editions of all technical and instructional manuals and documentation provided by us from time to time; 6.4. comply with any operational guidelines or emergency directions issued by us; 6.5. promptly report to us any errors, defects or malfunctions you experience or observe, in as much detail as you are reasonably able to; 6.6. not do anything calculated to damage or impair Gate 13 Software or the ASP server; 6.7. comply with all laws; 6.8. not publish any material which gives rise to, or is likely to give rise to, any civil or criminal liability, including the publication of defamatory material or the infringement of a third party's intellectual property; 6.9. not purport to grant any interest in, sub-licence of or derivative right to use Gate 13 Software except as permitted by clause 12. 7. Using Gate 13 Software - access and security You must: 7.1. only access Gate 13 Software using account access details supplied and approved by us; 7.2. keep your account access details secure and confidential; 7.3. only disclose your account access details to your own servants, agents or contracted consultants (your 'people') on a need-to-know-basis; 7.4. regularly change access passwords and keep records of all passwords used or disclosed, in accordance with good computer security practice; 7.5. if you become aware that account access details are in unauthorised hands: 7.5.1. change any compromised access password forthwith; 7.5.2. take any other step reasonably necessary to ensure that no-one suffers harm as a result; and 7.6. keep your computer system, network and internet connectivity secure and confidential in accordance with good computer security practice; and 7.7. make regular backups of all data which may be used in or with the Gate 13 Software. 8. User documentation 8.1. All manuals, instructions, literature and other documentation supplied in connection with Gate 13 Software ('user documentation') are copyright to us and provided by way of loan only. 8.2. You may make a reasonable number of copies of user documentation to support your use of Gate 13 Software in accordance with this licence, but all such copies are our property. 8.3. If we issue updated or replacement user documentation, you must replace all outdated user documentation with it. We are not responsible for harm that may arise from your use of non-current user documentation. 8.4. When this licence ends, you must return all existing user documentation (including all copies of it) to us on request. 9. Limitation on obligations 9.1. Subject to clause 13.3, our obligations under this licence are limited to the express obligations set out in it. 9.2. To avoid doubt, nothing in this licence obliges us to provide user documentation, training or any other support in relation to Gate 13 Software. If such services, or other services, are to be provided, they will first be documented in writing. 10. Obligation to control staff, etc. You may allow your people to access or use Gate 13 Software, but: 10.1. their acts and omissions with respect to Gate 13 Software are taken to be your acts and omissions; and 10.2. you must ensure that they do not do, or fail to do, anything that would breach this licence if you did, or failed to do, that thing. 11. Technical requirements, performance and availability 11.1. We may publish minimum technical requirements for the use of Gate 13 Software, and may revise them from time to time: 11.1.1. on at least 28 days' notice in the case of changes that require new or different hardware, or the purchase of new software; and 11.1.2. on at least 7 days' notice in the case of changes that only involve system reconfiguration, or the installation of free software. 11.2. You must ensure, at your own cost in all respects, that your computer system and internet connectivity meet the minimum technical requirements at all times. 11.3. You acknowledge that: 11.3.1. the Gate 13 Software does not come with a payment gateway to process payments, you must enter into an agreement with a provider of payment gateway services before you can process payments; 11.3.2. minimum technical requirements are designed to deliver only basic system performance, and that you may require a more powerful computer system and / or faster internet connectivity to achieve higher level performance; 11.3.3. access to and use of Gate 13 Software may be impaired or prevented a variety of factors that are beyond our control, for instance defects in your computer system and problems with internet connectivity between you and the ASP server - and we are not responsible for any such things or their effects. They do not constitute defects in Gate 13 Software. 12. Assignment 12.1. This licence cannot be assigned or sub-licensed independently without our written consent. 12.2. We may assign or sub-licence this licence without your consent. 13. Indemnity, warranties, liability 13.1. To the extent permitted by relevant laws, we exclude all warranties, whether express or implied, including the implied warranties of merchantability and fitness for a particular purpose. 13.2. We do not warrant that Gate 13 Software will operate in environments other than as specified in the minimum technical requirements or that its operation will be uninterrupted or error-free. 13.3. If any legislation implies a condition or warranty into this licence in respect of goods or services supplied, and our liability for breach of that condition or warranty may not be excluded but may be limited, clause 13.1 does not apply to that liability and instead our liability for any breach of that condition or warranty is limited to: (a) in the case of a supply of goods, we may do any one or more of the following (at our election): (i) replacing the goods or supplying equivalent goods; (ii) repairing the goods; (iii) paying the cost of replacing the goods or of acquiring equivalent goods; paying the cost of having the goods repaired; or (b) in the case of a supply of services, we may do either or both of the following (at our election): (i) supplying the services again; (ii) paying the cost of having the services supplied again. 13.4. Subject to clause 13.3, we are not liable in respect of any misrepresentation, breach of any implied or express warranty or condition, breach of any other provision, or otherwise liable in contract, tort (including for negligence), equity or otherwise for: 13.4.1. indirect or consequential loss; or 13.4.2. loss of revenue, profits, goodwill, data or use - however caused which arises out of or in connection with Gate 13 Software, whether or not we have been advised of the possibility of such loss. 14. Governing law and jurisdiction 14.1. The law of Victoria governs this licence. 14.2. The parties submit to the non-exclusive jurisdiction of the courts of Victoria and their appeal courts.
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