End User License Agreement
This End User License Agreement (the "Agreement”) is a legal agreement between Sinefo Pty ltd ATF Sinefo Trust, PoBox 306, Mona Vale, NSW, 1660 ("Sinefo”) and You ("Customer”) regarding the use of Sinefo’s services (”Services”) and Sinefo Hardware and Software acquired by Customer either directly from Sinefo or through one of Sinefo’s authorized resellers.
THIS IS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND SINEFO. IF YOU DO NOT AGREE WITH ITS TERMS, PLEASE RETURN THE SINEFO HARDWARE TO THE LOCATION WHERE YOU PURCHASED IT FOR A REFUND WITHIN 14 DAYS OF YOUR PURCHASE. CONTINUED USE OF THE SINEFO HARDWARE, SOFTWARE AND/OR SERVICE FOLLOWING SUCH 14 DAY PERIOD WILL BE DEEMED ACCEPTANCE OF THESE TERMS IN FULL.
1.1 Service. Contingent upon Customer’s valid subscription and good-standing with Sinefo, Sinefo shall provide the Service identified in the applicable order or evaluation ("Order”) to Customer. The provision of the Services may require the use of the Sinefo Hardware and Sinefo Software identified on the applicable Order. Sinefo shall perform maintenance services as reasonably necessary to maintain the operation of the Service. Notwithstanding the foregoing, Sinefo makes no guarantees as to the continuous availability of the Service or any component thereof.
1.2 Billing Service. In the event that Customer has chosen to obtain "Billing Services” from Sinefo, the following additional terms shall apply: (1) Sinefo shall provide any and all End Users (defined below) that access the Customer’s Sinefo Hardware and Sinefo Software ("Customer’s Port”) and who have agreed to the applicable terms and conditions for use of Customer’s Port access to the Internet; (2) Sinefo shall bill (and subject to its then current policies) collect the fees for such End User’s access for the fee amounts as instructed by Customer from time to time; (3) Sinefo is only providing a ministerial collection function, funds collected by Sinefo are those of the Customer and Sinefo has no liability for any loses; (4) Sinefo is holding the funds in trust during the period prior to remittance to the customer, (5) Sinefo is exempt from backup withholding requirements, and (6) following retention of the Billing Fee indicated on the Customer’s then current fee schedule for such billing service, remit any remaining amounts to Customer in accordance with this Agreement, or at its option offset such amounts from amounts owing by Customer to Sinefo. Sinefo shall pay or offset all such amounts received from such Customer’s End Users within 30 days of its receipt by Sinefo. In the event an End User pays Sinefo by credit card and Sinefo is unable to receive such payment from the credit card company for any reason, including without limitation End User disputing the charge (the "Charge-back Event”), then (i) Sinefo shall be relieved of its payment obligations to Customer under Section 1.2, or (ii) Sinefo may invoice and obtain from Customer a full refund of amounts already paid by Sinefo to Customer. Upon the written request of Customer, Sinefo shall produce reasonable documentation of the Charge-back Event. It shall be Customer’s sole responsibility to dispute the charge with the relevant credit card company. During the month of such service and for a maximum of 12 months thereafter, Sinefo shall keep all records online with regards to its transactions with Customers. Customer shall have the right to view such records online.
1.3 Customer Responsibilities. Customer acknowledges and agrees that certain proprietary software of Sinefo ("Sinefo Software”) is embedded in the Sinefo Hardware, downloaded by Customer, or loaded into the Customer’s web browser, and that use of such Sinefo Software is subject to the following license. Subject to the terms and conditions of this Agreement, Sinefo grants to Customer an individual, personal, perpetual, non-sublicensable, non-exclusive and non-transferable license to use the Sinefo Software, in object-code form only.
2.2 Restrictions on License and Use. Customer will not, and will not permit others to, whether directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Sinefo Software (except to the extent that such activities may not be prohibited under applicable law); (ii) modify, translate, or create derivative works based on the Sinefo Software; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer rights to the Sinefo Software; (iv) use or otherwise exploit third party hardware or medium in using either the Sinefo Software or the Service; or (v) remove any proprietary notices or labels on the Sinefo Software.
2.3 Ownership. Customer acknowledges that Sinefo retains exclusive ownership throughout the world of all intellectual property rights in the Sinefo Software, any portions or copies thereof, and all rights therein. Upon termination of this Agreement for any reason, Customer may retain the Sinefo Hardware and Sinefo Software, and the license shall survive, but the Services will terminate.
2.4 Trade Names. Neither party shall have the right to use the other’s name, trademark or trade name without the prior written consent of the other party; provided however, nothing herein shall prevent Sinefo from using Customer’s name as part of a customer list on its website or in connection with its other customer listings.
3.1 Purchase. Subject to the terms and conditions of this Agreement, Customer will purchase and Sinefo will sell the Sinefo Hardware identified on a mutually agreed upon Order. Following acceptance of an Order by Sinefo, Customer may not cancel or reschedule any Order without the prior written permission of Sinefo, provided in its sole discretion.
3.2 Shipping, Title and Risk of Loss. Sinefo shall use commercially reasonable efforts to deliver the Sinefo Hardware by the date on the mutually agreed upon Order and will promptly inform Customer in the event of a delay in delivery. Customer may identify the carrier for shipping. Where no shipping instructions are specified, Sinefo may select the carrier on a commercially reasonable basis. Sinefo shall invoice Customer for the cost of such shipping, insurance and related costs. All Sinefo Hardware shipped pursuant to Orders shall be shipped FCA (Incoterms 2000) Supplier’s facility (title and risk of loss to the Sinefo Hardware passes to Customer when Sinefo Hardware is delivered to the carrier at Sinefo’s suppliers manufacturing facility).
3.3 Export/Import Requirements. Customer will procure all import and export licenses and permits, pay all customs charges, and duty fees, and take all other actions required to accomplish the lawful import and export of the Sinefo Hardware. Where applicable, Sinefo shall be responsible for preparing (at Sinefo’s cost) all documentation required for export. Customer warrants that it will comply in all respects with the export and re-export restrictions of law applicable to the Customer for each of the Sinefo Hardware purchased from the Sinefo hereunder.
3.4 Return. For any return permitted under Sinefo’s then-current return policy, Customer will request a Return Materials Authorization ("RMA”) number in writing with the reasons for the return request. Customer shall not return a Product without first obtaining an RMA. The Customer shall pay all costs associated with the transportation of the returned Products from Customer to Sinefo. Risk of loss or damage to a Sinefo Hardware returned to Sinefo shall revert to Sinefo upon receipt of the Sinefo Hardware at Sinefo’s facilities.
3.5 Restrictions on Use. Sinefo Hardware may only be used with Sinefo Software. Customer agrees not to (i) disassemble or attempt to reverse engineer the Sinefo Hardware, (ii) remove or erase the Sinefo Software from the Sinefo Hardware, or otherwise try to disable or alter the Sinefo Software functionality; or (iii) load any other software onto the Sinefo Hardware.
FEES AND PAYMENT
4.1 Fees. Customer shall pay Sinefo the fees set forth in the mutually agreed upon Order for the Service designated therein and such other fees and amounts that may be invoiced in accordance with this Agreement by a payment method to be determined by Sinefo in its sole discretion (credit card, invoice, purchase order, prepayment or other payment method). Sinefo reserves the right to change the form of payment upon reasonable prior notice to Customer. With respect to materials shipped by Sinefo to Customer hereunder, Customer shall pay all applicable shipping charges. If for any reason Customer needs to reactivate Customer’s subscription, Customer may be charged a reactivation fee. All fees owing hereunder shall be payable within thirty (30) days from date of Sinefo’s invoice therefor. Past due amounts owing from Customer shall bear interest at the rate of the lesser of (1) 1% per month or (2) the maximum amount permitted under applicable law. Customer will reimburse Sinefo for all reasonable costs incurred (including reasonable attorney’s fees) in collecting past due amounts owed by Customer.
4.2 Currency. All payments made under this Agreement shall be in Australian dollars, including without limitation those payments to be made by Sinefo to Customer.
4.3 Contact Information. Customer agrees to provide Sinefo with accurate billing information and with truthful, accurate, and complete contact information, including Customer’s legal name, company name, street address, e-mail address, and telephone number, and to update this information within thirty (30) days of any change to it. If the contact information Customer have provided is false or fraudulent, Sinefo reserves the right to terminate Customer’s access to the Service immediately without any further obligation.
4.4 Taxes. Fees are exclusive of any taxes and duties or other amounts, however designated, and Customer shall pay all applicable sales, use, personal property or other taxes, tariffs, duties, assessments, or governmental charges levied or imposed at any time by any governmental authority, including interests and penalties thereto, that is related to the Service (collectively "Taxes”), and exclusive of Sinefo’s net income and corporate franchise taxes. In the event that Sinefo is required to pay any Taxes, Customer shall pay Sinefo the fees under Section 4.2 and the Australian. dollar equivalent of such Taxes levied upon Sinefo.
TERM AND TERMINATION
5.1 Term. This Agreement shall be effective from the Effective Date and shall continue to stay in effect until terminated under Section 5.2.
5.2 Termination. Sinefo or Customer may at any time and for any reason terminate this Agreement effective upon 30 days prior written notice, with effect of such termination on the termination of the then-current billing cycle. In addition Sinefo may at its option either terminate or suspend this Agreement or Service thereunder effective upon five (5) days prior written notice in the event of a breach by Customer. Any termination as contemplated above shall not affect the obligations of Customer to pay Sinefo for Service provided or work performed prior to termination. Customer will pay in full for the Service up to and including the last day of the then-current billing cycle.
5.3 Effect of Termination. Upon termination, Customer will immediately cease all use of the Service. The following provisions of this Service Agreement shall survive termination of this Agreement: Sections 4.1, 4.2, 4.4, 5.3, and Articles 2, 6 and 7. Termination is not an exclusive remedy and all other remedies will be available whether or not the license granted herein is terminated.
REPRESENTATIONS AND WARRANTIES; DISCLAIMER; REMEDIES
6.1 Mutual Warranties. Each party hereby represents and warrants to the other during the Term as follows: it has all necessary corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. This Agreement constitutes a legal, valid and binding obligation of the warranting party enforceable against the warranting party in accordance with its terms.
6.2 Sinefo Hardware. Sinefo represents and warrants to Customer during the Term, and not to any End Users or third parties, that for the Warranty Period such Sinefo Hardware shall be free from material defects in materials and workmanship. The Warranty Period shall be the greater of one (1) year or the warranty period specified on the relevant Sinefo specification sheet. The Warranty Period shall begin on the date Sinefo ships product to Customer. If any Sinefo Hardware contains manufacturers’ warranties, to the fullest extent permitted thereunder, Sinefo hereby assigns (to the extent possible under such warranties) such warranties to Customer. Sinefo Hardware not meeting the warranties will be, at Sinefo Hardware’s option, (a) repaired, (b) replaced by Sinefo in accordance with the procedures set forth in Section 4.5 or, if after using all reasonable commercial efforts Sinefo is unable to do either of the foregoing, (c) refund the amount of purchase price paid by Customer. All Sinefo Hardware repaired or replaced under warranty shall be warranted for the remainder of the warranty period set out in this Section 6.1. Any warranty contained in this Agreement does not apply to defects resulting from misuse, accidental damage or operation outside of the ordinary use of the Sinefo Hardware and Sinefo Software unless such defects are directly or indirectly caused by Sinefo or Sinefo’s authorised representative. The remedies set forth in this Section 6.2 are Sinefo’s sole liability and Customer’s sole remedy for any breach of warranty for the Sinefo Hardware sold by Sinefo to Customer.
6.3 Disclaimer of Warranties. EXCEPT AS SET FORTH IN SECTION 6.1 and 6.2, SINEFO DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. CUSTOMER UNDERSTANDS AND AGREES THAT THE SERVICE AND SINEFO SOFTWARE AND SINEFO HARDWARE ARE PROVIDED "AS IS.” SINEFO MAKES NO WARRANTY THAT THE SERVICE (INCLUDING SINEFO SOFTWARE AND SINEFO HARDWARE) WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT USE OF THE SERVICE (INCLUDING SINEFO SOFTWARE AND SINEFO HARDWARE) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; NOR DOES SINEFO MAKE ANY WARRANTY AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE, SINEFO SOFTWARE OR SINEFO HARDWARE, THAT ANY DEFECTS IN THE SERVICE SINEFO SOFTWARE OR SINEFO HARDWARE WILL BE CORRECTED. FURTHER, SINEFO DOES NOT WARRANT THAT THE SERVICE, SINEFO SOFTWARE OR SINEFO HARDWARE OR THE SINEFO SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. SINEFO ALSO ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT CUSTOMER’S HARDWARE, SOFTWARE, OR OTHER DELIVERABLES. SINEFO AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICE, SINEFO HARDWARE OR SINEFO SOFTWARE, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT OF THIRD PARTY RIGHTS. Because some jurisdictions do not permit the exclusion of implied warranties, portions of this section may not apply to Customer.
6.4 Exclusion and Limitation of Liability. IN NO EVENT WILL SINEFO OR ITS SUPPLIERS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOST PROFITS, USE OF USER INFORMATION, LOSS OF DATA, BUSINESS INTERRUPTION, OR OTHER INDIRECT, CONSEQUENTIAL, SPECIAL, OR INCIDENTAL DAMAGES OF ANY NATURE ARISING FROM OR RELATING TO CUSTOMER’S USE OF THE SERVICE OR USE OF THE SERVICE THROUGH CUSTOMER’S ACCOUNT BY ANYONE ELSE, EVEN IF SINEFO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CASE WILL SINEFO’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER AND ANYONE WHO USES THE SINEFO SERVICE THROUGH CUSTOMER’S ACCOUNT, FOR ANY AND ALL CLAIMS UNDER ANY THEORY OF LAW, EXCEED THE AGGREGATE AMOUNT CUSTOMER PAID TO SINEFO IN THE PRECEDING TWELVE (12) MONTHS. CUSTOMER UNDERSTANDS THAT THESE LIMITATIONS OF SINEFO’S AND SINEFO’S SUPPLIERS’ LIABILITY ARE A FUNDAMENTAL PART OF THIS AGREEMENT. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to Customer, in which case Sinefo’s liabilities shall be limited to the maximum extent allowed by law.
6.5 Indemnity. CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS SINEFO FROM AND AGAINST ANY AND ALL CLAIMS, PROCEEDINGS, INJURIES, LIABILITIES, LOSSES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES), INCLUDING, BUT NOT LIMITED TO, CLAIMS ALLEGING NEGLIGENCE, COPYRIGHT INFRINGEMENT AND/OR TRADEMARK INFRINGEMENT AGAINST SINEFO OR THE SINEFO SERVICE, RELATING TO OR ARISING OUT OF CUSTOMER’S BREACH OF ANY TERM OF THIS AGREEMENT, CUSTOMER’S OR ITS END USEER’S MISUSE OF THE SERVICE, OR CUSTOMER’S UNAUTHORIZED MODIFICATION OR ALTERATION OF THE SINEFO HARDWARE OR SINEFO SOFTWARE.
7.1 Force Majeure. Neither Party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for payment obligations) on account of strikes (other than strikes of a party’s own employees), shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labour conditions (other than with respect to a party’s own employees), earthquakes, material shortages or any other causes that are beyond the reasonable control of such party; provided, however, that the parties will use commercially reasonable efforts, including the implementation of business continuity measures, to mitigate the effects of such force majeure.
7.2 Independent Contractors. The Parties hereto are independent contractors. Neither Party to this Agreement nor any of its employees, customers or agents, shall be deemed to be the representative, agent or employee of the other Party for any purpose whatsoever, nor shall any of them have the right or authority to assume or create an obligation of any kind or nature, express or implied, on behalf of the other, nor to accept service of any legal claims or notices addressed to or intended for the other.
7.3 Amendment; No Waiver. This Agreement cannot be amended, changed, modified or supplemented orally, and no amendment, change, modification or supplement of this Agreement shall be recognized nor have any effect, unless the writing in which it is set forth is signed by both Parties, nor shall any waiver of any of the provisions of this Agreement be effective unless in writing and signed by the Party to be charged therewith. The failure of either Party to enforce, at any time, or for any period of time, any provision hereof or the failure of either Party to exercise any option herein shall not be construed as a waiver of such provision or option and shall in no way affect that Party’s right to enforce such provision or exercise such option. No waiver of any provision hereof shall be deemed to be, or shall constitute, a waiver of any other provision, or with respect to any succeeding breach of the same provision.
7.4 Governing Law. This Agreement will be governed by the laws of the State of New South Wales without regard to its conflicts of laws provisions. The state and federal courts within Sydney, NSW, Australia will have exclusive jurisdiction over all disputes arising out of this Agreement.
7.5 Export Control. Customer shall comply fully with all Australian and other country’s export laws and regulations and ensure that the Service, or products related thereto, are not directly or indirectly exported or re-exported to any country, person, entity or end user in violation of, or for any use prohibited by, such export laws and regulations.
7.6 Severability. If any portion of this Agreement is held invalid by a court of competent jurisdiction, such portion shall be deemed to be of no force and effect and this Agreement shall be construed as if such portion had not been included herein, provided however, if the deletion of such provision materially impairs the commercial value of this Agreement to either Party, the Parties shall attempt to renegotiate such provision in good faith.
7.7 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements, understandings and arrangements, oral or written, between the Parties with respect to the subject matter hereof. No agreement or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made either Party which is not expressly set forth in this Agreement.
7.8 Assignment. During the term of this Agreement, neither party shall have the right to assign this Agreement and the Service hereunder without the prior written consent of the other party, which shall not be unreasonably withheld. Any attempt to do so shall be void. Notwithstanding the foregoing, Sinefo may assign or otherwise transfer this Agreement to its subsidiary, affiliate or successor in the event of a change of control or to the purchaser of substantially all of its assets or stocks. This Agreement shall be binding upon the respective parties hereto and their respective legal successors and permitted assignees.
7.9 Headings. The headings used in this Agreement are for convenience of reference only and shall not affect the meaning or construction of this Agreement.
7.10 Language. The official language of this Agreement is English. All contract interpretations, notices and dispute resolutions shall be in English. Any attachments or amendments to this Agreement shall be in English. Translations of any of these documents shall not be construed as official or original versions of such documents.
Should you have any questions concerning this Agreement, or if you desire to contact Sinefo for any reason, please contact firstname.lastname@example.org.