These Terms and Conditions and the Registration completed by you (as described in the Registration) form a legally binding agreement between you and us.
1.1 Licence of Software
We license you to use the Software on the following conditions:
(a) The licence is non-exclusive and must not be transferred, assigned or dealt with in any way. You must not sublicense, lease or loan the Software or any part of it to any other person.
(b) In the case of the “Cuuble desktop home” version of the Software, you may only use the Software for your own personal network for non-commercial use.
(c) You agree that limitations on the use of, and functionality provided by, the Software (and corresponding Fees) depend upon the version of the Software that you select during Registration (e.g. home, professional or premium version). This includes limitations on the number of users, pictures and documents, contacts, communities and “Let’s Connect” permissions.
(d) You must not copy, reproduce, publish or transmit all or part the Software, except to the extent (if any) expressly permitted by this Agreement, or by law where any right to do so cannot be excluded.
(e) You must not seek to work around any technical protections in the Software, reverse engineer, decompile or disassemble the Software or otherwise reduce it to a human readable form, except to the extent that doing so is expressly permitted by law and any right to do so cannot be excluded.
(f) Any other rights that you might otherwise have in relation to the Software that are expressly conferred by law are limited to the extent permitted by law. All rights not expressly conferred by law or contained in this Agreement are excluded to the extent permitted by law.
(g) You may keep a single copy of the Software for backup purposes. You must keep it, and the computer system on which the Software resides, secure and protected from theft. If theft does occur then you must inform us so that if possible, the Software’s licence key can be terminated.
To the extent that the Software is expressly provided to you on a trial basis, your rights to use the Software are limited to the applicable trial period (or a lesser period if notified by us) unless agreed otherwise by us, including through any conversion process.
1.2 Ownership of Software
All copyright and any other intellectual property in the Software, and anything else provided to you in connection with this Agreement, remains our property (or the property of our licensors, if applicable). This agreement grants you a licence to use the Software, and the Software is not sold to you.
1.3 Maintenance and Support of Software
We will provide support for the version of the Software that you have licensed to the corresponding extent (if any) stated on the Website in relation to that version. In any event, your entitlement to support is limited to support for you personally, and not for any other users of the Software (even if those users are associated with your use of the Software).
You must pay the Fees. All Fees are inclusive of Australian GST.
You must make all payments in accordance with the Billing Arrangements. If you do not make a payment when due, then the amount unpaid will bear interest at 1.5% per month, compounding monthly.
3. YOUR OPERATIONAL OBLIGATIONS
During the term of this Agreement you must:
(a) install the Software in accordance with the instructions we provide, including satisfying any requirements regarding the hardware and software specifications of the system upon which it is installed;
(b) not use the Software, or permit any copy of the Software obtained (directly or indirectly) through you to be used, in any way that:
(i) commits, or encourages or causes to be committed by any person, any offence or unlawful act or omission; and
(ii) is racist, hateful, violent, defamatory, harassing, abusive, threatening, malicious, inflammatory or otherwise objectionable;
(iii) is pornographic, sexually explicit, obscene or excessively profane;
(iv) is fraudulent, false, misleading or deceptive; or
(v) infringes, or encourages the infringement of, a third party’s rights, including intellectual property, confidentiality or privacy rights;
(c) not do or permit to be done, any act which could damage our reputation or the reputation of any service provided under the Cuuble brand; and
(d) not use the Software, or any of our trademarks, logo or brands in any way that represents or implies an endorsement or association with you or your activities.
4. WARRANTIES AND LIABILITY
4.1 Exclusion of other terms
To the extent permitted by law, and except as expressly provided in this Agreement, all terms, conditions, warranties and representations (in each case whether express, implied, statutory or otherwise) relating in any way to the Software or any services (including advice or instructions) provided under or in connection with this Agreement are excluded. Without limiting the foregoing, and to the extent permitted by law, we do not warrant that the Software is fault free.
4.2 General limitation of liability
Without limiting clause 4.3, to the extent permitted by law, any liability of ours in connection with, the Software or any services (including advice or instructions) provided under or in connection with this Agreement:
(a) under any condition or warranty that by law cannot be excluded;
(b) under any consumer guarantee or other right under any law; or
(c) on any other basis (including contract or negligence),
is, where permitted by law, limited at our option to the replacement, repair or resupply of the relevant goods or services or the payment of the cost of same.
4.3 Exclusion of categories of loss
The following applies only to the extent permitted by law. All liability of ours is excluded in respect of any indirect or consequential Loss suffered or incurred by you, in relation to the Software or otherwise under or in connection with this Agreement, and in any event (including where amounting to a direct loss) for any lost or corrupted data.
5. TERMINATION AND SUSPENSION
5.1 Termination without cause
Either you or we may at any time, without any reason, terminate this Agreement by giving the other at least 30 days prior written notice.
5.2 Termination of Licence
The Software is provided with a licence key and an activation key, both of which are time stamped as to being valid for use. The Software will detect the potential expiry of the licence key and endeavour to inform you prior to the licence expiry that a new licence key is required or the Software will fail to operate and suspend itself. In the event of a new licence key being obtained, the Software will continue to operate according to the time and capacity parameters of the new licence key.
We may terminate the Licence with immediate effect by written notice to you if you fail to make any payment due under this Agreement (including if any payment made, or purportedly made, is reversed or not honoured).
The Licence will automatically terminate, without notice to you, if you breach any provision of the Licence. In addition, despite this Agreement, the Licence is invalid and will automatically terminate, without notice to you, if you have not obtained the Software directly from us and followed its activation procedures.
Upon termination of the Licence, you must immediately permanently delete the original and all copies of the Software in your possession, power or control.
5.3 Effect of termination
You will have no right to any refund of any Fees upon termination, except to the extent (if any) that the law requires otherwise. The termination of this Agreement will not affect the accrued rights of either party as at the date of termination. Clauses 2 to 9 will survive the termination of this Agreement, as will any other provision that by its nature is intended to survive termination.
We may amend this Agreement (including the Fees) in any way at any time by notice to you. Any such amendment will not take effect earlier than 45 days after the date on which we send the notice.
As part of the process of completing the Registration, you must provide a current email address and any other contact details that we request in the Registration process.
Any notice or other written communication given under or in connection with this Agreement by either party to the other must be sent by ordinary prepaid mail or email to the corresponding address below, unless either party notifies the other of a change of the relevant address. If you register to receive any messaging, email or other communication services that we provide via www.cuuble.com then we may also send you notices or other written communications via the those services.
As set out in the Registration
PO Box 2377, Hawthorn, Victoria 3122, Australia
Each party must ensure that at all times the contact details (including email address) applicable to it under this clause is current, and endeavour to ensure it is operational.
An email will be taken to have been served at the time of sending, unless within 24 hours of it being sent the sender receives a manual or automated response indicating that it was not delivered successfully.
8.1 Applicable law
This Agreement is to be construed according to, and is governed by, the laws of Victoria, Australia. You and we submit to the non-exclusive jurisdiction of the courts in and of Victoria in relation to any dispute arising under this Agreement.
8.2 Assignment and subcontracting
You may not transfer or assign your rights or obligations under this Agreement to any other person. We may subcontract our obligations under this Agreement.
If any provision of this Agreement or its application to any person or circumstance is or becomes invalid, illegal or unenforceable then the provision will so far as possible be read down to the minimum extent necessary to ensure that it is not. If any provision or part of it cannot be so read down, then the provision or part of it will be deemed to be void and severable and the remaining provisions of this Agreement will not be affected or impaired in any way.
Any failure by any party to exercise any right under this Agreement does not operate as a waiver and the single or partial exercise of any right by that party does not preclude any other or further exercise of that or any other right by that party.
8.5 Entire agreement
This Agreement constitutes the entire agreement between us and you in relation to its subject matter. Any prior arrangements, agreements, representations or undertakings are superseded and, except as expressly provided, each party warrants that it has not relied on any arrangement, agreement, representation or understanding which is not expressly set out in this Agreement or incorporated by reference.
In this Agreement the following terms have the corresponding meaning:
Agreement means these Terms and Conditions, the Registration and the applicable description of the Fees.
Billing Arrangements mean the billing arrangements specified in the Registration.
Fees means the fees, charges, interest and other amounts described or referred to in this Agreement or the Registration, as amended from time to time in accordance with this Agreement.
Licence means the licence of the Software given in clause 1.1.
Loss means any loss, damage, cost, interest, expense, fee, penalty, fine, forfeiture, assessment, demand, action, suit, claim, proceeding, cause of action, liability or damages incurred by a person, and includes legal costs on an indemnity basis and indirect or consequential losses.
Registration means the electronic application completed by you in order to download the Software.
Software means the relevant version (as selected by you in the Registration) of the software product(s) known as Cuuble Desktop, and any other software, provided to you from time to time in connection with this Agreement (including any updates), and all related electronic documentation or data provided with it or in connection with it but excludes any components of that software that are:
(a) expressly provided to you on an open source basis (in which case the terms of the relevant open source licence will apply); or
(b) expressly provided on the terms of a third party licence (in which case the terms of that third party licence will apply).