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Rising Software™ Software and Services End User Agreement

WARNING: Use of Rising Software™ Software and Services is conditional upon you (“the Customer”) agreeing to the terms of this Agreement. Choosing “I accept the terms and conditions of this Agreement” when installing Rising Software™ Software and Services shall be deemed to be your acceptance of the terms of this Agreement. If you do not agree, choose “do not accept” and do not proceed to install or use Rising Software™ Software and Services and contact Rising Software Australia Pty Ltd ABN 32 077 057 213 of 3 Darling St, Fairfield, Victoria, 3078, AUSTRALIA (“Rising Software”) to arrange for any applicable refund.

Please also refer to our Privacy Policy, which is found on our website at https://risingsoftware.com/privacy and the privacy policy of any institution in which you are enrolled.

1. Definitions

1.1 In this Agreement, unless inconsistent with the context:

(a) Agreement means this agreement, its recitals, provisions and any schedule of this agreement.

(b) Confidential Information includes information which relates to Rising Software™ Software and Services including account details, passwords and activation codes, development concepts, source code, object code, configuration and other scripts, specifications, data models and schema, protocols, algorithms, manuals, drawings and data created or used by Rising Software, Rising Software’s personnel, Rising Software’s policies, Rising Software’s business strategies and the terms of this Agreement.

(c) Clause means a clause of this Agreement.

(d) Confidential Customer Data means information which relates solely to Customer’s business and does not include any underlying data structures or concepts.

(e) Duration means the period for which you or the organisation that purchased your rights to use the Rising Software™ Software and Services has paid for same

(f) Fees means either the agreed fees of Rising Software or, if none, the published fees of Rising Software as amended from time to time.

(g) Force Majeure means an act, omission or circumstance over which Rising Software could not have reasonably exercised control including telecommunication failures.

(h) Intellectual Property Right includes any right arising from or capable of arising from the: Circuits Layout Act 1989 (Cth); Copyright Act 1968 (Cth); Designs Act 2003 (Cth); Patents Act 1990 (Cth); Trade Marks Act 1995 (Cth); any similar legislation outside the Commonwealth of Australia; any similar unregistered right and Confidential Information.

(i) Interest Rate means the rate of 10% per annum calculated monthly in arrears and added to the outstanding sum.

(j) Party and Parties means a party to this Agreement and their respective successors, trustees and permitted assigns.

(k) Privacy Policy means Rising Software’s Privacy policy which can be found at http://www.risingsoftware.com/privacy/

(l) Rising Software™ Software and Services means those software and services that for which you have purchased a licence to use same from Rising Software including as the case may be Auralia® Cloud and Musition® Cloud.

(m) Sub-clause means a sub-clause of this Agreement.

(n) Taxes includes taxes, duties and government charges, fees, levies, any penalty for not paying same and any liability for same.

2. Interpretation

2.1 In this Agreement, unless inconsistent with the context:

(a) Words denoting a person shall include corporations, statutory corporations, partnerships, joint ventures, associations, boards, governments or semi-government agencies or authorities.

(b) Words denoting the singular number shall include the plural number and vice versa.

(c) Words denoting any gender shall include all other genders.

(d) A reference to a statute or a regulation also refers to any statute or regulation amending, or consolidating or re-enacting same.

(e) A reference to “includes”, “including” or “inclusive” is to be construed as being a reference to “includes, without limitation”, “including, without limitation”, and “inclusive, without limitation” respectively.

(f) Headings used in this Agreement are for convenience and ease of reference only, and are not part of this Agreement and shall not be relevant or affect the meaning or interpretation of this Agreement.

(g) Every obligation express or implied into this Agreement and entered into by more than one Party shall bind them jointly and severally.

(h) Every right express or implied into this Agreement granted in favour of more than one Party shall be for the benefit of each of them jointly and severally.

(i) A provision of this Agreement shall not be construed adversely to the Party that drafted it.

(j) If any provision or part provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement shall remain otherwise in full force apart from such provision or part provision which shall be deemed deleted.

(k) The recitals, provisions and any schedule to this Agreement form part of this Agreement.

(l) No right or remedy granted to Rising Software pursuant to this Agreement excludes or shall be deemed to exclude or modify any other right or remedy which would otherwise be available to Rising Software and all such granted rights and remedies are cumulative.

3. Customer’s Right to Use Rising Software™ Software and Services

3.1 Subject to the terms of this Agreement Rising Software grants Customer a revocable non-exclusive right to use Rising Software™ Software and Services for the Duration solely for Customer’s own private use as follows. If:

(a) a single machine licence is purchased then the licence is limited to a single machine.

(b) a single user licence is purchased then the licence is limited to a single user.

(c) a cloud user licence is purchased then the licence is limited to a single user.

(d) a student cloud user licence is purchased then the licence is limited to a single student user

(e) a single student machine licence is purchased then the licence is limited to a single machine

(f) a lab pack licence is purchased then the licence is limited to five (5) machines

(g) a licence for multiple machines is purchased then the licence is limited to the number of concurrent machines so purchased.

(h) a licence for multiple users is purchased then the licence is limited to the number of users so purchased.

(i) a site licence is purchased then the licence is limited to machines and or users located at the site for which such a licence is purchased.

3.2 Rising Software shall, from time to time, provide access codes to permit Customer to use Rising Software™ Software and Services.

4. Customer’s Responsibilities

4.1 Customer shall:

(a) pay the Fees specified in an invoice (if any);

(b) Keep its user accounts, passwords and activation codes details confidential and not disclose same to any other party. Customer shall be responsible for all use of same whether authorised by Customer or not. Should any such disclosure occur Customer shall report same to Rising Software in writing as soon as possible;

(c) provide information as reasonably requested by Rising Software and its contractors and agents from time to time;

(d) make available its technical staff as reasonably requested by Rising Software from time to time;

(e) provide equipment which Rising Software considers suitable to use Rising Software™ Software and Services™;

(f) apply or accept, without delay, all updates issued by Rising Software from time to time to which Customer is entitled and all third party updates recommended by Rising Software;

(g) backup its data wherever same is stored;

(h) agree to and comply with the terms and conditions of any third party software or services supplied by Rising Software or made available with Rising Software™ Software and Services and or not use such third party software and services The details of the third party terms and conditions can be found at the following urls:

(i) http://www.firebirdsql.org/en/licensing/

(i) comply with all applicable laws;

(j) conduct all appropriate virus and security checks;

(k) ensure that its customers, employees, sub-contractors and other agents who have authorised access to Rising Software™ Software and Services are made aware of the terms of this Agreement;

(l) supervise and control the use of Rising Software™ Software and Services in accordance with the terms of this Agreement;

(m) immediately advise Rising Software in writing upon Customer becoming aware of any person using Rising Software™ Software and Services who is not authorised by Rising Software to do so; and

(n) train its staff in the use of Rising Software™ Software and Services and the internet;

4.2 Customer shall not:

(a) copy, reproduce, translate, adapt, vary, modify, decompile, disassemble, reverse engineer, create derivative works of, sub-license, rent, lease, loan or distribute Rising Software™ Software and Services other than as expressly authorised by this Agreement;

(b) engage in password sharing, remote desktop access or port aggregation without the express permission of Rising Software;

(c) exceed the licensed number of users or machines;

(d) install, upload or execute any computer programs which have not been checked and are not expressly specified by Rising Software as suitable;

(e) interfere with the network or disrupt any other user, service or equipment;

(f) permit any act which infringes the Intellectual Property Rights which subsist in Rising Software™ Software and Services and which belong to Rising Software.

(g) provide or otherwise make available Rising Software™ Software and Services in any form to any other person;

(h) use Rising Software™ Software and Services for any illegal, unauthorised or dangerous purpose including unsolicited commercial e-mail;

(i) use Rising Software™ Software and Services for or in connection with a service bureau operation; or

(j) use Rising Software™ Software and Services to publish any material for which it is not the Intellectual Property Right owner or licensed by the Intellectual Property Right owner or is defamatory.

5. Rising Software’s rights

5.1 Rising Software may, whilst being under no obligation to do so and at its sole discretion, without notice or giving any reason or incurring any liability for doing so:

(a) delete, remove or refuse to publish, receive or transmit any material which is, in its sole opinion, without limitation,:

(i) dangerous;

(ii) found in an unauthorised area;

(iii) excessive in volume;

(iv) unauthorised;

(v) uncollected for an excessive period;

(vi) unlawful;

(vii) in breach of Rising Software’s Reasonable Use or Publishing Policy; and

(b) take action if it suspects that malicious, illegal or unacceptable usage of Rising Software™ Software and Services is occurring or has occurred, including destruction or disposal of Customer’s access passwords.

6. Disclaimer & Acknowledgments

6.1 Customer acknowledges that:

(a) Rising Software™ Software and Services is licensed on the strict understanding that, subject to the warranties below, Rising Software is not responsible for the results of any actions taken, either by Customer or a third party relying on services supplied or not supplied by Rising Software™ Software and Services;

(b) Rising Software cannot and does not warrant that Rising Software™ Software and Services shall be available 24 hours a day or that any defect shall be corrected within a specific time frame;

(c) Rising Software™ Software and Services is not necessarily secure, virus free or without defect; and

(d) Rising Software is not responsible for:

(i) ensuring that Rising Software™ Software and Services is suitable for Customer’s requirements or fit for any purpose;

(ii) any interruption to Rising Software™ Software and Services due to equipment failure, the need for routine maintenance, peak demand etc;

(iii) the supply or maintenance of Customer’s equipment, software or telephone lines;

(iv) monitoring, controlling or ensuring the accuracy, appropriateness or content of any information on the internet and does not do so; and

(v) any software available on the internet or supplied by third parties.

7. Support

7.1 Rising Software may, from time to time, make available various support services and other assistance in relation to Rising Software™ Software and Services.

8. Intellectual Property Rights

8.1 Rising Software retains all the Intellectual Property Rights in Rising Software™ Software and Services and the trade marks Auralia® Cloud and Musition® Cloud.

8.2 Customer hereby assigns all Intellectual Property Rights it may have arising from or in relation to any of its suggestions or requirements in relation to the Rising Software™ Software and Services immediately as such rights are capable of assignment.

8.3 This assignment is absolute, worldwide and includes all present and future Intellectual Property Rights arising from or in relation to Rising Software™ Software and Services.

8.4 Customer acknowledges that Customer’s right to make any use of materials assigned pursuant to this Agreement, is dependent upon Rising Software granting an express licence to Customer, the granting and terms of which shall be at the sole discretion of Rising Software.

8.5 Customer shall retain the Intellectual Property Rights in the Confidential Customer Data. However, nothing in this Sub-clause grants Customer the right to download any Confidential Customer Data until all Fees are paid in full.

8.6 Customer may from time to time at its sole option upload or make materials to use with Rising Software™ Software and Services for (a) Customer’s own use and or (b) for use by other customers using Rising Software™ Software and Services.  Customer hereby grants Rising Software™ an irrevocable worldwide royalty free licence to all the Intellectual Property Rights subsisting in those materials to the extent necessary for each of those purposes including the right for Rising Software™ to grant sub-licences to its customers for same.

9. Confidential Information

9.1 To the extent that Confidential Information is not in the public domain (other than by way of breach of this Agreement) and is not known by the Customer at the time of disclosure, Customer:

(a) shall:

(i) keep such information confidential;

(ii) take all necessary precautions to prevent any disclosure of Confidential Information to unauthorised third parties; and

(iii) inform Rising Software of any suspected or actual disclosure of Confidential Information; and

(b) shall not, without the express written consent of Rising Software:

(i) directly or indirectly divulge or communicate or otherwise disclose any Confidential Information, in whole or part to any third party;

(ii) use any Confidential Information, other than for the express purpose set out in this Agreement; or

(iii) remove or cause to be removed from Rising Software’s or its business partners premises or systems any Confidential Information.

9.2 This Clause shall survive the termination of this Agreement.

10. Confidential Client Data Information

10.1 Subject to the Privacy Policy and applicable institution privacy policy and to the extent that Confidential Client Data Information is not in the public domain (other than by way of breach of this Agreement) and is not known by Rising Software at the time of disclosure, Rising Software:

(a) shall keep such information confidential;

(b) shall not, without the express written consent of Customer:

(i) directly or indirectly divulge or communicate or otherwise disclose Confidential Client Data Information, in whole or part to any third party; or

(ii) use Confidential Client Data Information for its own purposes.

10.2 This Clause shall survive the termination of this Agreement.

11. Fees

11.1 Customer shall pay Rising Software the Fees without withholding, deduction or offset of any amounts for any purpose.

11.2 Rising Software may increase the Fees at any time upon one months’ notice.

11.3 An account rendered by e-mail or otherwise by Rising Software shall be prima facie evidence for a Court of the provision of the items referred to in same to Customer by Rising Software.

12. Tax

12.1 Unless expressly stated to the contrary and to the extent permitted by law:

(a) the Fees are exclusive of all Taxes which may arise in relation to the subject matter of this Agreement;

(b) Customer shall immediately pay any applicable Taxes to Rising Software; and

(c) Customer shall indemnify and keep indemnified Rising Software from payment of the Taxes and any penalties arising from non-payment of same.

13. Interest

13.1 Customer shall pay Rising Software interest at the Interest Rate on all overdue amounts from the due date until payment is made.

14. Suspension of Obligations

14.1 If Customer breaches any provision of this Agreement Rising Software may, without further notice to Customer,

(a) suspend all its obligations to Customer under this Agreement;

(b) disable Rising Software™ Software and Services using security, time out codes, remote access or other technological measures.

15. Force Majeure

15.1 Rising Software shall not be liable for any delay or failure to perform its obligations if such a failure or delay is due to Force Majeure.

16. Limitation of Liability

16.1 To the extent permitted by law and except as expressly provided to the contrary in this Agreement, all warranties whether express, implied, statutory or otherwise, relating in any way to the subject matter of this Agreement or to this Agreement generally, are excluded. Where legislation implies in this Agreement any condition or warranty and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or the exercise of or liability under such term, such term shall be deemed to be included in this Agreement. However, the liability of Rising Software for any breach of such term shall be limited, at the option of Rising Software, to any one or more of the following: if the breach related to goods: the replacement of the goods or the supply of equivalent goods; the repair of such goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; and if the breach relates to services the supplying of the services again; or the payment of the cost of having the services supplied again.

16.2 To the extent permitted by law and except as expressly provided to the contrary in this Agreement, Rising Software shall not be under any liability (contractual, tortious or otherwise) to Customer in respect of any loss or damage (including consequential loss or damage) howsoever caused, which may be suffered or incurred or which may arise directly or indirectly in respect to the supply of goods or services pursuant to this Agreement or an act, failure or omission of Rising Software.

16.3 Customer warrants that it has not relied on any representation made by Rising Software or upon any descriptions or illustrations or specifications contained in any document including any catalogues or publicity material produced by Rising Software.

17. Further Assistance

17.1 Customer shall:

(a) declare, make or sign all documents and do all things necessary or desirable to give full effect to this Agreement; and

(b) if applicable, procure its officers, employees and agents to do same.

18. Indemnity

18.1 To the extent permitted by law, Customer shall release, indemnify and keep indemnified Rising Software, its officers, employees and agents, against any injury, death, damage, loss, costs (including legal costs on an indemnity basis), expenses, interest, taxes or liability whether direct or indirect and whether sustained by Rising Software, Rising Software’s officers, employees, contractors and agents, Customer, Customer’s officers, employees and agents or a third party arising out of:

(a) a breach of this agreement by Customer;

(b) any wilful, unlawful or negligent act or omission of Customer, its officers, employees or agents;

(c) any injury suffered by Customer’s officers, employees or agents; and

(d) the discharge of Customer’s obligations pursuant to this Agreement.

18.2 This indemnity applies regardless of whether or not legal proceedings are instituted.

18.3 This indemnity applies to any payment, settlement, compromise or determination regardless of whether same is, or is not, authorised by Customer.

18.4 It is not necessary to incur any expense or make any payment before enforcing any right of indemnity under this Agreement.

18.5 This Clause survives termination of this Agreement.

19. Waiver

19.1 No right of Rising Software under this Agreement shall be deemed to be waived except by notice in writing signed by Rising Software. Any such waiver shall be limited to its express terms.

19.2 Any failure by Rising Software to enforce any provision of this Agreement, or any forbearance, delay or indulgence granted by Rising Software shall not be construed as a waiver of Rising Software’s rights.

20. Survival

20.1 The provisions of this Agreement which are capable of having effect after the expiration of this Agreement shall remain in full force and effect following the expiration of this Agreement.

21. Assignment, Novation and Sub-Contracts

21.1 Customer shall not sub-contract, sub-licence, assign or novate, in whole or part, any entitlement or obligation under this Agreement without the prior written consent of Rising Software.

21.2 Rising Software may:

(a) sub-contract for the performance or part performance of this Agreement; and

(b) assign this Agreement to a third party without notice and in such circumstances, Rising Software’s rights and obligations under this Agreement shall be immediately terminated upon assignment.

22. Notices

22.1 Notices under this Agreement may be delivered by hand, post, email or by facsimile to the addresses specified in Schedule 1.

22.2 Notices shall be deemed given in the case of:

(a) hand delivery, upon written acknowledgment of receipt by an officer or other duly authorised employee, agent or representative of the receiving party;

(b) email, immediately upon acceptance of same by a machine outside the control of the sender;

(c) posting, 3 days after dispatch; and

(d) facsimile, upon completion of transmission.

23. Early Termination

23.1 If Customer accepts an offer from Rising Software which is for a fixed period and before that fixed period has expired terminates this Agreement then Customer shall pay Rising Software by way of liquidated damages the full amount remaining to be payable for that fixed period.

23.2 The Parties agree that amount is a genuine pre-estimate of the loss or damage which Rising Software would suffer in such circumstances.

24. Termination

24.1 Rising Software may terminate this Agreement immediately if:

(a) any payment due to Rising Software remains unpaid for a period of 14 days;

(b) Customer breaches any provision of this Agreement and such breach is not remedied within 14 days of notice by Rising Software;

(c) Customer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration;

(d) Customer, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;

(e) Customer being a natural person, dies; or

(f) Customer ceases or threatens to cease conducting its business in the normal manner.

24.2 In addition to terminating this Agreement, Rising Software:

(a) may disable Customer’s access to Rising Software™ Software and Services;

(b) may retain any moneys paid;

(c) may charge a reasonable sum for any un-invoiced items;

(d) shall be regarded as discharged from any further obligations under this Agreement;

(e) shall be under no liability to Customer for damages or compensation or any other payment whatsoever;

(f) may immediately erase all Confidential Customer Data stored by Rising Software; and

(g) may pursue any additional or alternative remedies provided by law.

25. Entire Agreement

25.1 Unless stated expressly to the contrary in this Agreement:

(a) this Agreement constitutes the entire agreement between the Parties for the subject matter referred to in this Agreement. Any prior arrangements, agreements, representations or undertakings are superseded;

(b) this Agreement is not to be construed as creating a joint venture, partnership or agency situation between the Parties. No Party may represent that there exists such a relationship between the Parties;

(c) no Party may bind another Party to any agreements, arrangements, contracts or understanding or represent that they have such authority; and

(d) no modification or alteration of any provision of this Agreement shall be valid except in writing signed by each Party save that Rising Software/Customer may on 30 days’ notice change any term of this Agreement and in such a case Customer/Rising Software may terminate this Agreement during that notice period without further obligation.

26. Governing Law

26.1 This Agreement shall be governed by and construed according to the law of Victoria, Australia

26.2 The Parties irrevocably submit to the exclusive jurisdiction of the Courts of Victoria, Australia and the Commonwealth of Australia. Any proceedings in a Commonwealth Court shall be commenced in Victoria, Australia.