| End User License Agreement |
This End-User License Agreement ("EULA") is a legal agreement between you (either as an individual person, a registered business and or trading name, or a privately incorporated company or an unlisted public company or a publicly listed company or any government department or agency) and Cymtrix Training Systems Pty Ltd (a private company registered in Australia and having the Australian Business Number of 40 134 410 012) being the owner of and or authorized and or appointed agent for all Cymtrix Training Systems Pty Ltd products. This includes all intellectual property and copyright protected content that accompanies any product, and may include associated product components such as delivery media, any printed materials, "online" or electronic documentation, and Internet-based services (herein after referred to as "Cymtrix® product"). An amendment or addendum to this EULA may accompany any Cymtrix® product. YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY DOWNLOADING, INSTALLING, COPYING, OR OTHERWISE USING ANY CYMTRIX® PRODUCT, AND ITS INTELLECTUAL PROPERTY and COPYRIGHT PROTECTED CONTENT. IF YOU DO NOT AGREE, THEN, YOU MUST NOT DOWNLOAD, INSTALL, COPY, OR USE ANY CYMTRIX® PRODUCT OR ANY OF ITS COMPONENTS OR ITS ACCOMPANYING INTELLECTUAL PROPERTY AND OR COPYRIGHT PROTECTED CONTENT. 1. GRANT OF LICENSE. Cymtrix Training Systems Pty Ltd grants you the following rights provided that you comply with all terms and conditions of this EULA: 1.1 Installation and use. You may install, use, access, display and run one copy of the Cymtrix® product that have been specifically deemed only to be executed, installed or run on a single computer, such as a workstation, terminal or other device ("Workstation Computer"). The Cymtrix® product may not be used by more than one integrated processor at any one time on any single Workstation Computer. If you want to run a Cymtrix® product on multiple Workstation Computers, then either additional licenses or a specific network server multi-user license must first be purchased. 1.2 Mandatory Activation. The license rights granted under this EULA commence at the date and time you first install the Cymtrix® product and after entering any activation key or coded message that has been supplied to you, after placing your order for any Cymtrix® product. You may also need to reactivate your installed Cymtrix® product if you modify your computer hardware. If you are not using a licensed copy of the Cymtrix® product, you are not allowed to install the Cymtrix® product or receive by any means whatsoever any future Cymtrix® product updates. 1.3 Device Connections. You may permit an unlimited number of other electronic devices (each a "Device") to connect to the Workstation Computer to utilize one or more of the following services of the legally licensed Cymtrix® product: File Services, Print Services, Internet Information Services and remote access. 1.4 Storage/Network Use. You may NOT store or install a copy of the Cymtrix® product on a storage device, such as a network server unless the product has been deemed and specifically licensed for use on such a device. The Cymtrix® product is only to be installed, used, executed or concurrently run on the number of operating Workstation Computer(s) determined by or restricted to the Cymtrix® product design specification for that particular licensed product. 2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS 2.1 Internet-Based Services Components. The Cymtrix® product may contain components that enable and facilitate the use of certain Internet-based services. You acknowledge and agree that Cymtrix Training Systems Pty Ltd may automatically check the version of the Cymtrix® product and or its components that you are utilizing. 3. RESERVATION OF RIGHTS AND OWNERSHIP. Cymtrix Training Systems Pty Ltd reserves all rights not expressly granted to you in this EULA. The Cymtrix® product is protected by copyright and other intellectual property laws and treaties. Cymtrix Training Systems Pty Ltd or its suppliers own the title, copyright, and other intellectual property rights in the Cymtrix® product. The Cymtrix® product is licensed and not sold. 4. LIMITATIONS ON REVERSE ENGINEERING, DE COMPILATION, AND DISASSEMBLY. You may not reverse engineer, decompile, or disassemble the Cymtrix® product, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. 5. NO RENTAL/COMMERCIAL HOSTING. You may not rent, lease, lend or provide free or otherwise, public commercial hosting services with the Cymtrix® product. 6. CONSENT TO USE OF DATA. You agree that Cymtrix Training Systems Pty Ltd and its affiliates may collect and use technical information gathered as part of the product support services provided to you, if any, related to the Cymtrix® product. Cymtrix Training Systems Pty Ltd may use this information solely to improve our products or to provide customized services or technologies to you and will not disclose this information in a form that personally identifies you. 7. LINKS TO THIRD PARTY SITES. You may NOT link to third party sites through the use of the Cymtrix® product. 8. ADDITIONAL CYMTRIX® PRODUCTS AND OR SERVICES. This EULA applies to updates, supplements, add-on components, or Internet-based services components, of the Cymtrix® product that Cymtrix Training Systems Pty Ltd may provide to you or make available to you after the date you obtain your initial copy of the Cymtrix® product, unless we provide other terms along with the update, supplement, add-on component, or Internet-based services component. Cymtrix Training Systems Pty Ltd reserves the right to discontinue any Internet-based services provided to you or made available to you through the use of the Cymtrix® product. 9. UPGRADES. To use Cymtrix® training course identified as an upgrade, you must first be licensed for the Cymtrix® training course and be identified by Cymtrix Training Systems Pty Ltd as eligible for the upgrade. After upgrading, you may no longer use the Cymtrix® training course that formed the basis for your upgrade eligibility. 10. NOT FOR RESALE-CYMTRIX® TRAINING COURSE. The Cymtrix® product is identified as "Not for Resale" or "NFR," and may not be sold or otherwise transferred for value, or used for any purpose whatsoever. 11. EXEMPTIONS-EXCEPTIONS. All licensed copies of the Cymtrix® product contain an electronic copy of a learner or student training course manual or notes as an accompanying component. The accompanying Cymtrix® product learner manual or notes is an exempt component from terms of this EULA in as much that it is considered a consumable learner or student item once printed out in hard copy form. The Cymtrix® product learner or student manual or notes, once printed out into hard copy form, is not subject to any to any update or renewal service which includes rectification of errors or additions to content, or loss replacement except for the other applicable clauses which are described in this EULA. The learner or student manual or notes that accompanies the Cymtrix® product is subject to international copyright protection and is claimed as follows: These notes are subject to copyright. Apart from any fair dealings for the purposes of private study, research, criticism or review, as permitted under international treaties and or the Copyright Act, no part may be reproduced by any process without permission. The rights of Cymtrix Training Systems Pty Ltd is identified as the moral rights author has been asserted. 12. NUMBERS OF LEARNERS ORTUDENTS OR PARTICIPANTS ELIGIBLE TO USE THE CYMTRIX® PRODUCT. All licensed users of the Cymtrix® product may nominate, select or choose suitable learners or students or participants to use the Cymtrix® product, provided that there is a licensed copy installed on one (or in the case of a multiple licensed Computer Workstation(s) or network server products), then an unlimited number of learners or students or participants may use the Cymtrix® product. 13. CYMTRIX® PRODUCT TRANSFER. 13.1 Internal Use. You may move the Cymtrix® product to a new or different Workstation Computer or network server if so licensed. After the transfer, you must completely remove the Cymtrix® product from the old or former Workstation Computer or network server if so licensed. 13.2 Transfer to Third Party. The initial licensed and registered user of the Cymtrix® product, may make a one-time permanent transfer of this EULA and the Cymtrix® product to another end user, provided the initial licensed and registered user retains no copies of the Cymtrix® product. This transfer must include the entire Cymtrix® product (including all component parts, the media and non learner printed materials, any upgrades), and this EULA. The transfer may not be an indirect transfer, such as a consignment. Prior to the transfer, the new end user receiving the Cymtrix® product must agree to all the EULA terms. 14. TERMINATION Without prejudice to any other rights, Cymtrix Training Systems Pty Ltd may terminate this EULA if you fail to comply with the terms and conditions of this EULA. In such event, you must destroy all copies of the Cymtrix® product and all of its component parts. 15. LIMITATION ON REMEDIES; NO CONSEQUENTIAL OR OTHER DAMAGES. Your exclusive remedy for any breach of this Limited Warranty is as set forth below. Except for any refund elected by Cymtrix Training Systems Pty Ltd, YOU ARE NOT ENTITLED TO ANY DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES, if the Cymtrix® product does not meet Cymtrix Training Systems Pty Ltd's operating specifications to the maximum extent allowed by applicable law, even if any remedy fails of its essential purpose. 15.1 YOUR EXCLUSIVE REMEDY.Cymtrix Training Systems Pty Ltd's and its suppliers' entire liability and your exclusive remedy for any other breach of this EULA or for any other liability relating to the Cymtrix® training course shall be, at Cymtrix Training Systems Pty Ltd's option from time to time exercised subject to applicable law,
providing that it is returned to Cymtrix Training Systems Pty Ltd with a copy of your receipt. You will receive the remedy elected by Cymtrix Training Systems Pty Ltd without charge, except that you are responsible for any expenses you may incur (e.g. cost of shipping of your copy of the Cymtrix® product to Cymtrix Training Systems Pty Ltd). This remedial offer will be declared void if the operational failure of the Cymtrix® product has resulted from accident, abuse, misapplication, abnormal use or a virus infection. Any replacement Cymtrix® training course will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer, and Cymtrix Training Systems Pty Ltd will use commercially reasonable efforts to provide your remedy within a commercially reasonable time of your compliance with Cymtrix Training Systems Pty Ltd's warranty remedy procedures. 16. DISCLAIMER OF WARRANTIES. The Limited Warranty that appears above is the only expressed warranty made to you and is provided in lieu of any other express warranties or similar obligations (if any) created by any advertising, documentation, packaging, or other communications. Except for the Limited Warranty and to the maximum extent permitted by applicable law, Cymtrix Training Systems Pty Ltd and its suppliers provide the Cymtrix® product and support services (if any) AS IS AND WITH ALL FAULTS, and hereby disclaim all other warranties and conditions, whether expressed, implied or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of reliability or availability, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence, all with regard to the Cymtrix® product, and the provision of or failure to provide support or other services, information, Cymtrix® product, and related content through the Cymtrix® product or otherwise arising out of the use of the Cymtrix® product. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE CYMTRIX® PRODUCT. 17. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL Cymtrix Training Systems Pty Ltd OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE CYMTRIX® PRODUCT, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, CYMTRIX® PRODUCT, AND RELATED CONTENT THROUGH THE CYMTRIX® PRODUCT OR OTHERWISE ARISING OUT OF THE USE OF THE CYMTRIX® PRODUCT, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF CYMTRIX TRAINING SYSTEMS PTY LTD OR ANY SUPPLIER, AND EVEN IF CYMTRIX TRAINING SYSTEMS PTY LTD OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 18. LIMITATION OF LIABILITY AND REMEDIES. Notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced herein and all direct or general damages in contract or anything else), the entire liability of Cymtrix Training Systems Pty Ltd and any of its suppliers under any provision of this EULA and your exclusive remedy hereunder (except for any remedy of repair or replacement elected by Cymtrix Training Systems Pty Ltd with respect to any breach of the Limited Warranty) shall be limited to the greater of the actual damages you incur in reasonable reliance on the Cymtrix® product up to the amount actually paid by you for the Cymtrix® product or AU $5.00. The foregoing limitations, exclusions and disclaimers (including Sections 15, 16 and 17) shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose. 19. APPLICABLE LAW. No matter where you acquired this Cymtrix® product, this EULA is governed by the laws of the State of Victoria, Australia. 20. ENTIRE AGREEMENT; SEVERABILITY. This EULA (including any addendum or amendment to this EULA which is included with the Cymtrix® product) is the entire agreement between you and Cymtrix Training Systems Pty Ltd relating to the Cymtrix® product and the support services (if any) and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Cymtrix® product or any other subject matter covered by this EULA. To the extent the terms of any Cymtrix Training Systems Pty Ltd policies or programs for support services conflict with the terms of this EULA, the terms of this EULA shall control. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. The guarantee - The Cymtrix® product is designed and offered as a general-purpose, non industry specific training course and not for any user's particular purpose. You accept that no Cymtrix® product is error free and you are strongly advised to back-up your files regularly. Provided that you have a valid license, Cymtrix Training Systems Pty Ltd guarantees that a) for a period of 90 days from the date of receipt of your license to use the Cymtrix® product or the shortest period permitted by applicable law it will perform substantially in accordance with the written materials that accompany the Cymtrix® product; and b) any support services provided by Cymtrix Training Systems Pty Ltd shall be substantially as described in applicable written materials provided to you by Cymtrix Training Systems Pty Ltd and Cymtrix Training Systems Pty Ltd support engineers will use reasonable efforts, care and skill to solve any problem issues. In the event that the Cymtrix® product fails to comply with this guarantee, Cymtrix Training Systems Pty Ltd will either
This guarantee is void if failure of the Cymtrix® product results from accident, abuse or misapplication. Any replacement Cymtrix® product will be guaranteed for the remainder of the original guarantee period or 30 days, whichever period is longer. You agree that the above guarantee is your sole guarantee in relation to the Cymtrix® product and any support services. Exclusion of All Other Terms - To the maximum extent permitted by applicable law and subject to the guarantee above, Cymtrix Training Systems Pty Ltd disclaims all warranties, conditions and other terms, either expressed or implied (whether by statute, common law, collaterally or otherwise) including but not limited to implied warranties of satisfactory quality and fitness for particular purpose with respect to the Cymtrix® product and the written materials that accompany the Cymtrix® product. Any implied warranties that cannot be excluded are limited to 90 days or to the shortest period permitted by applicable law, whichever is greater. Limitation of Liability - To the maximum extent permitted by applicable law and except as provided in the Cymtrix Training Systems Pty Ltd Guarantee, Cymtrix Training Systems Pty Ltd and its suppliers shall not be liable for any damages whatsoever (including without limitation, damages for loss of business profits, business interruption, loss of business information or other pecuniary loss) arising out of the use or inability to use the Cymtrix® product, even if Cymtrix Training Systems Pty Ltd has been advised of the possibility of such damages. In any case Cymtrix Training Systems Pty Ltd's entire liability under any provision of this Agreement shall be limited to the amount actually paid by you for the Cymtrix® product. These limitations do not apply to any liabilities that cannot be excluded or limited by applicable laws. Consumer rights - Consumers in Australia, New Zealand or Malaysia may have the benefit of certain rights and remedies by reason of the Trade Practices Act and similar state and territory laws in Australia, the Consumer Guarantees Act in New Zealand and the Consumer Protection Act in Malaysia in respect of which liability cannot lawfully be modified or excluded. If you acquired the Cymtrix® product in New Zealand for the purposes of a business, you confirm that the Consumer Guarantees Act does not apply. If you acquired the Cymtrix® product in Australia and if Cymtrix Training Systems Pty Ltd breaches a condition or warranty implied under any law which cannot lawfully be modified or excluded by this agreement then, to the extent permitted by law, Cymtrix Training Systems Pty Ltd's liability is limited, at Cymtrix Training Systems Pty Ltd's option, to: (i) in the case of the Cymtrix® product:
(ii) in the case of support services:
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