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I. ("Future Corporation") and
you and/or the legal entity (i) you hereby represent; and/or (ii)
intends to purchase or license goods from Future Corporation
(referred collectively herein as "you" or "your") agree that the
purchase or licensing of (i) Future Corporation hardware products (hereafter "the
Hardware"); and (ii) Future Corporation software products (hereafter the
"Software"); and (iii) Future Corporation hardware and/or software
services and support (hereafter the "Services"); and (iv) third party software
products (hereafter "3rd Party Software") are made under these terms and
conditions, and that FUTURE CORPORATION SHALL NOT BE BOUND BY YOUR,
ANOTHER OR THIRD PARTY'S ADDITIONAL OR DIFFERENT TERMS;
II.
IMPORTANT: TO THE EXTENT
PERMITTED BY LAW, FUTURE CORPORATION'S ACCEPTANCE OF YOUR: (I)
APPLICATION OR ORDER TO PURCHASE OR TO LICENSE; AND/OR (II) PURCHASE
OR LICENSE OF: HARDWARE, SOFTWARE, 3RD PARTY SOFTWARE AND/OR
SERVICES (REFERRED COLLECTIVELY HEREIN AS "THE GOODS") SHALL CONSTITUTE YOUR ACCEPTANCE OF THE TERMS AND
CONDITIONS AS SET FORTH HEREIN; AND (A) YOU HEREBY
ACKNOWLEDGE AND AGREE WITH FUTURE CORPORATION THAT THIS AGREEMENT IS
LIKE ANY NEGOTIATED WRITTEN AGREEMENT SIGNED BY YOU; AND (B) THAT THIS
AGREEMENT IS ENFORCEABLE AGAINST YOU AND/OR THE LEGAL ENTITY THAT
MAKES APPLICATION AND/OR ORDERS AND/OR PURCHASES OR LICENSES ANY GOODS FROM
FUTURE CORPORATION;
III.
AGREEMENT IRREVOCABLE: YOUR OBLIGATIONS UNDER THIS AGREEMENT ARE
ABSOLUTE, NON CANCELLABLE AND SHALL CONTINUE WITHOUT ABATEMENT AND
REGARDLESS OF ANY DISABILITY OF YOURS TO USE THE GOODS OR ANY PART
THEREOF FOR ANY REASON INCLUDING, BUT NOT LIMITED TO WAR, ACT OF
GOD, GOVERNMENTAL REGULATIONS, STRIKE, LOSS, DAMAGE, DESTRUCTION,
OBSOLESCENCE, FAILURE OF OR DELAY IN DELIVERY, REPAIR OR
MAINTENANCE, UNAVAILABILITY OF PARTS OR SUPPLIES, FAILURE OF THE
GOODS TO OPERATE PROPERLY, TERMINATION BY OPERATION OF LAW, YOUR
CHANGE OF MIND OR CHANGE IN YOUR PERSONAL CIRCUMSTANCES, OR ANY
OTHER CAUSE;
THIS AGREEMENT
INCLUDES THE FOLLOWING
1. TERMS AND DEFINITIONS
2.
NOTICE
SPECIFIC TO THE SOFTWARE
3. SALES OF GOODS AND LICENSING
4. LIMITED WARRANTY
5.
NO
LIABILITY
6. LIMITED INDEMNITY AGAINST INFRINGEMENT
7. SERVICES
8. TECHNICAL SUPPORT
9. GOVERNING LAW
10. TERMINATION
11.
GENERAL PROVISIONS
1. TERMS AND DEFINITIONS
1.1 Words importing the singular number shall include the plural and
vice versa; and,
1.1.2 Words importing any particular gender shall include all other
genders; and words importing persons include individuals, sole proprietors,
partnerships, companies, corporations (public or private), all government
bodies and departments including the armed and covert forces, trusts and
unincorporated associations, businesses, organizations and all other legal
entities; and,
1.1.3 Unless expressly stated otherwise all words herein shall be
given their ordinary or plain meaning according to the Australian Oxford
English dictionary at such date this Agreement is executed by the parties; and,
1.1.4 References in this Agreement to Sections are to sections in this
Agreement except where otherwise expressly stated; and,
1.1.5 Numbered Headings (as described in Section 1.2 below), excluding those words referred to in section 1.1.6
(below), are used in this Agreement for the convenience of the
Parties only and shall not be incorporated into this Agreement and shall not be
deemed to be any indication of the meaning of the Clauses or Sections to which
they relate; and,
1.1.6 For the purposes of section 1.1.5 (above) Numbered Headings hereby excludes all those words contained within inverted commas (“”) or in
parentheses (), italicized or bolded; and,
1.1.7 To avoid any doubt those words contained within inverted commas (“”) or in
parentheses (), italicized or bolded that are not Numbered Headings are
included in and form part of this Agreement;
1.2 IN THIS AGREEMENT UNLESS EXPRESSLY STATED OTHERWISE THE FOLLOWING WORDS,
GROUPING OF WORDS OR PHRASES SHALL HAVE THE FOLLOWING MEANING:
“Activation Number” means the unique number used to Activate the
Software to operate in a restricted or unrestricted state;
“Affiliate” means any corporation, company or other entity that
directly or indirectly, is controlled by, or is under common control with,
Future Corporation;
“Agent” means the interactive assistants which form part
of the SuperTutor training program;
“Antivirus software” means a computer program that attempts to
identify, neutralize or eliminate a wide range of threats to a computer or
device, including but not limited to (i) malware,
(ii) worms, (iii) phishing attacks, (iv) rootkits,
and (v) Trojan horses or any other type of similar,
related or
malicious software;
“Apple computer” means a computer or device manufactured,
supplied and/or sold by Apple Computer Inc. or its Authorized or Licensed
Dealers;
“Authorized Dealer” means an individual or a business
(incorporated or otherwise) that has
been approved and authorized by Future Corporation under a separate agreement
to carry (store or stock) the Software to promote, support and sell it to
end-users;
“Beta” means a version (complete or incomplete) of Future Corporation Software that is in
its final development and/or testing stage that may contain bugs, errors and
other glitches or problems that could cause system failures and/or data loss
and may not perform all functions for which it is intended or represented;
“Circumvent” means (i) to deliberately, utilizing any means, work-around or bypass and/or
eliminate (successfully or otherwise) the Software’s built-in (programmed)
mechanisms that are intended to prevent its unlicensed, unauthorized or unlawful use; or
(ii) to work-around or bypass
and eliminate the hardware security device commonly referred to as a "Dongle"
(successfully or otherwise) to prevent the Software’s unlicensed, unauthorized or unlawful use; and/or
(iii) to interfere with the Software’s programming code and/or secret mechanisms
using an individual's skills and/or another program, utility, script or device, commonly known as
"Reverse Engineering", "Cracking" or "Hacking", in an
attempt (successful or otherwise) to either remove, work-around or bypass the Software’s built-in (programmed) or hardware (security device)
mechanisms that is intended to prevent the software's unlicensed, unauthorized or unlawful use;
“Compatible computer” means IBM compatible computer for the
purposes of this Agreement (see below);
“Component” means a separate and identifiable part of the
Software that may be obtained separately for a fee or at no charge as described
in the Software’s documentation that seamlessly integrates with the Software
and is typically referred to as a plug-in, snap-in or module;
“Computer” or “Device” means an electronic device that accepts information
in digital or similar form and manipulates it for a specific result based on a
sequence of instructions;
“Content Files” means the animations, artistic works and samples, audio, charts,
clipart, data, gradients, fonts (in all formats),
illustrations, images, internal graphics and works, sample and stock photographs, sample files, sounds,
templates, text, textures, video and all other similar works bundled (included)
with the Software and/or available online at no charge, or for a fee, and are provided for
demonstration and training purposes with the Software;
“Copy” with respect to the Software means one (1) instance of
the Software that is installed onto one (1) hard disc drive that is permanently
affixed and/or exclusively used in one (1) computer; and does not mean a
removable or transportable hard disc drive that is used as a start up drive on
more than one (1) computer (e.g. you may not install a copy of the Software on
a hard disc drive (C:\ drive) that is then cloned and used as a boot up disc on two or more
computers simultaneously);
“Credit-Card” means a payment device lawfully issued to the bearer
by a Major credit card company that is accepted by Future Corporation, its
Affiliates and/or its Authorized Dealers as listed at the Future Corporation
Internet site:
http://www.iifuture.com/en/products_payment_options.html;
“Crossgrade Software”
means a 3rd party software program and/or License that is permanently
transferred to the exclusive ownership of Future Corporation from the Licensee
(non-returnable), in
exchange (consideration) for a financial or other benefit granted to the Licensee by Future Corporation
pursuant to Future Corporation's Software License Agreement;
“Customer Number” means Product Serial Number for the
purposes of this Agreement (see below);
“Day” or “Days” means consecutive calendar days and does not exclude weekend days, or any: public, bank and government
sanctioned public holidays with each day concluding precisely at 4:00PM AEST and any time
thereafter considered the following day for the purposes of this Agreement;
“Delphi” means a computer programming language, more
specifically a branch of object oriented derivatives of Pascal;
“Documentation” means any accompanying printed materials, Software
License, and any other Agreement you may have with Future Corporation relating to
the Software, and online (Future Corporation Internet sites); or its electronic
equivalent;
“Dongle” means a Hardware Security Device for the purposes of this Agreement (see
below);
“Expert” means an individual or individuals who comply with the
experience and/or tertiary qualifications as required under the Software License
Agreement to provide sworn testimony in the event of a dispute between the
parties hereto in a court of competent jurisdiction, to assist the court if
required;
“First user” means the individual or legal entity that first
licensed the Software from Future Corporation or its Affiliate;
“Future Corporation” means ;
“Hard disc drive” or “HDD” (Internal or External) means any disc or media regardless of kind or
type that is capable of having the Software copied or installed onto it for use
in or with a computer or device;
“Hardware Security Device” means a piece of hardware that
physically attaches to a Computer or Device
(typically through its
Parallel, Serial or USB communications port)
that is interrogated by the Software to determine its authenticity and
a user's right to fully access the Software;
“Help” means the printed and/or electronic documentation
provided by Future Corporation with the Software and/or online and does not mean
email, facsimile, telephone or technical support, training or assistance;
“IBM compatible computer” means any computer or device that is
capable of running Microsoft’s computer operating system: Windows and excludes
ALL Apple computer operating systems, and for the purposes of this Agreement means Windows: 7, Vista,
and XP in all variants and service packs or
any version thereof for Apple computers, but
does not include any other version or variant of Microsoft Windows including but
not limited to: Windows: 2000, Me (Millennium), 98, 95, 3.X and all prior releases, versions
and variants and to avoid any doubt does not include any future
versions of Windows after Windows 7;
“In writing” from Future Corporation which appends or modifies
this agreement means a written document signed by the C.E.O., a director, a vice president, or a senior executive of
Future Corporation that is duly authorized to represent Future Corporation for
such purposes;
“Install Code” means the unique number that identifies each
computer and is required to Activate or Register the Software;
“Installment
Software”
means a non-cancellable payment
method for the Software License to be paid in Installments over an
agreed period of time, including any and all related charges or fees that equals
the whole amount otherwise payable for the Software License when all
Installments have been paid to Future Corporation;
“Interactive Agents” means a technology developed by Microsoft
which employs animated characters, text-to-speech engines, and speech
recognition software to enhance interaction with computer users;
“Internal Network” means a private or proprietary network
resource (Intranet) accessible only by management, employees and individual
contractors (i.e. subcontractors) of a specific corporation, company, business entity
or government department or body. Internal Network does not mean or include a global
and/or public network (Internet) or any portion thereof or any other network community open
to the public or other non-related corporations, such as membership or
subscription driven groups, trade or professional associations, public
associations or forums and/or similar organizations or groups;
“Internet” means the global computer network commonly referred to as the world
wide web;
“License Management Regime” means the system employed by Future
Corporation and the Software to manage the Software's
Licensing on a computer;
“License Remaining” means the contiguous time remaining (usually
reported in days) before the License expires on a computer;
“License Status” means the current state of the Software License
on a computer;
“License Type” means the method of payment for the Software
License;
“Life”, “Life Cycle” or “Life of the Product” means Product Life for the purposes of this Agreement (see below);
“Machine code” or “Machine language” means a system of
instructions and data directly executed by a computer’s central processing
unit;
“Materials and workmanship” means the Software’s physical: (i) media (including but not limited to discs and the
hardware security device), (ii) written (printed) materials, (iii) packaging,
and (iv) any other similar materials but does not refer or relate to the
Software program and/or its components, extras, plug-ins, snap-ins, modules or its code, or any online services.
Materials and workmanship does not mean or include the quantity or
quality of the Software or its code, its fitness for purpose or merchantability;
“Microsoft” means Microsoft Corporation Inc. of 1 Microsoft
Way, Redmond, WA 98052-6399 United States;
“Module” means Component for the purposes of this Agreement
(above);
“Month” or “Months” means consecutive calendar months and does
not exclude weekend days, or any: public, bank and government sanctioned
public holidays within such month or months;
“MSRP” means Manufacturer’s Suggested
Retail Price abbreviated to MSRP and has the same meaning as:
Recommended Retail Price or RRP, or the list price;
“Numbered Headings” means a word or
group of words within this Agreement that are immediately preceded by a numeric
value which is the consecutive decimalized number to those numbers that have
come before it in preceding sections and does not include alpha, roman or other
numerals which may appear within and throughout the various sections of this
Agreement;
“Online” means access to and/or interaction with the global
computer network commonly referred to as the Internet or world wide web via a
computer or other device whether it be unrestricted or otherwise;
“Operating System” means Microsoft’s computer operating system
software: Windows: 7, Vista, and XP in all correctly installed (loaded) variants and service packs or
any version thereof for Apple computers, but
does not include any other version or variant of Microsoft Windows including but
not limited to: Windows: 2000, Me (Millennium), 98, 95, 3.X and all prior releases,
versions and variants and to avoid any doubt does not include any future
versions of Windows after Windows 7;
“Original Equipment Manufacturer” or “OEM” means a variation of the Software that is exclusively
included (bundled) and licensed by Future Corporation with a piece of third party
equipment or hardware (machines and devices) including but not limited to: CNC, engraving, laser, plotting, printing, routing and
vinyl cutting machines and devices by the manufacturer and/or their agents and
dealers to end-users;
“Output File” means a file in a Future Corporation proprietary
or generic format that has been created and saved and/or exported by the
Software;
“Patch” means Update for the purposes of this Agreement (see
below);
“Permitted Number” means a single unit or one (1) unless otherwise indicated
under a valid Volume License granted by Future Corporation or one of its
subsidiaries, authorized Licensees or Dealers;
“Perpetual” or "Perpetual License” means a period of no more than ten (10)
consecutive years and for the purposes of this agreement DOES NOT mean
everlasting or forever;
“Plotter” or “Vinyl Cutter” means an electronic device that uses
a pen or blade to create drawings on a substrate or to cut out signage from an adhesive
backed
vinyl or similar substrate which is expressly supported by the Software and
does not include every make and model of plotter or vinyl cutter
manufactured or currently available;
“Plug-In” means Component for the purposes of this Agreement
(see above);
“Possession or Control” means (i) the effective ownership or
proprietorship of the Software license notwithstanding the legal ownership or
proprietorship thereof, and/or (ii) the effective ownership or
proprietorship of a computer or device notwithstanding the legal ownership or
proprietorship thereof that has any prior or actual relationship
with, or to, the Software;
“Printer” or “Large/Wide Format Printer” means an electronic device that uses
any process/technology to print onto a substrate which is expressly supported by
the Software and does not include every make and model of printer or
large/wide format printer manufactured or currently available;
“Product” means the version of the Software licensed by Future
Corporation under the terms of this Agreement;
“Product Life” means the period of time from where a version of
the Software is released for licensing to the public (the current version) and
remains current up until such time as a subsequent or replacement version
(Upgrade) is released for licensing to the public (see Upgrade below);
“Product Serial Number or PSN” means the unique and identifying
number for each Future Corporation Software product;
“Programming language” means a set of written instructions (and
comments) that are
used to develop and create programs which control the behaviour of a computer or device;
“Published functionality” means the functions (i.e. tools and
features) each variation or level of the Software includes as set forth and
listed at the Software’s dedicated Internet site in the ‘Products’ webpage
under ‘Feature’s List’ or similar list;
“Reasonable amount” means for the purposes of section 5 (below) an
amount only to the extent necessary to resolve, or an attempt to resolve
(successful or otherwise), a
technical issue pertaining or relating to the Software; and does not imply or mean a guarantee,
warranty or promise of any kind to permanently resolve such technical issue;
“Registration Number” has the same meaning as Activation Number
for the purposes of this Agreement
(see above);
“RRP”
means MSRP for the purposes of this Agreement (see above);
“Sample File” means a file in a Future Corporation proprietary
or generic format that has been created and saved and/or exported by Future
Corporation, its Affiliates and/or its Authorized Dealers using the Software;
“Security-1” or “S1” means an extension, variation or
modification of the Software that (i) is for use within a secured or protected internal
network, and/or (ii) provides for restricted user levels and access, and/or
(iii) has built-in mechanisms to track all access and use of the Software,
and/or (iv) implements strong encryption to protect Output and Export files;
“Snap-In” means Component for the purposes of this Agreement
(see above);
“Software Development Kit” or “SDK” means a set of development
tools provided by Future Corporation that assists a software programmer to
create components, file format filters for Future Corporation Software and/or
its components for use with third party computer programs, utilities or applications;
“Software” means (i) computer software (including its compiled
code), and/or (ii) a computer program including plug-ins, snap-ins, modules
and/or components (including their respective code), and (iii) any modified
versions and copies of, and upgrades, updates and additions to the Software; and
(iv) all of the information with which the Software License Agreement is
provided, including but not limited to Future Corporation or third party
software files and other computer information but does not include the physical: (i) media (including but not limited to discs and the
hardware security device), (ii) written (printed) materials, (iii) packaging,
and (iv) any other similar materials;
“Strong encryption” means a method of data encryption that is
less susceptible to having its key discovered by a third party through what is
commonly referred to as brute force attack, hacking or cracking;
“Subsidiary” means Affiliate for the purposes of this Agreement
(see above);
“Supervisor” and “Manager” means an employee of Future Corporation who
has a senior position within the company and has been authorized by the C.E.O., a
director, a vice president, or senior executive of Future Corporation to represent Future
Corporation for the tasks as expressly set forth in this Agreement;
“Supplier” means an individual or a business which has and/or
continues to provide Future Corporation with any goods, intellectual property
and/or services to assist Future Corporation in designing, creating, producing
and delivering the Software;
“Technical support” means the identification and attempted remedy
(successful or otherwise) of an error, bug or an unexpected circumstance
pertaining or relating to the Software when used in accordance with the Software's
documentation, the Operating System and directions from Future Corporation via email, user forums, knowledgebase, online ticketing, facsimile,
telephone or by any other appropriate means, undertaken by an authorised Future Corporation
representative; and does not mean the consulting or consultation of the
applicability, suitability or otherwise of the Software or any training or explanation of
how to use the Software or any other Software or Hardware, or how it is supposed
to, or does function except to the extent to remedy the technical issue;
and does not include assistance, advice or support of any 3rd party
software, computer hardware, cutting or printing device, machine or any related
equipment that (i) is not functioning correctly or as it ordinarily should, or
(ii) is faulty, or (iii) is misconfigured, or (iv) is incapable of working with
the Software, or (v) is subject to malware, a virus, a Trojan or otherwise
malicious software or firmware;
“Update” means a separate component of Software designed to update,
modify, repair, remove or
fix problems identified by Future Corporation with the Software that includes
fixing bugs, replacing or removing tools and/or features and improving the usability or
performance of the Software (e.g. V1.0 of the Software may be replaced with V1.1 of the Software,
with V1.1 an update from V1.0, with V1.1 potentially followed by V1.2 and so on
and so forth. Note, update increments may not necessarily be in values of .1);
“Upgrade” means the complete replacement of the Software with a
newer version of the same branded Software, that may include but is not limited
to: error corrections, modifications, removal/replacement of tools and features, compatibility improvements, new tools and
features, additions and/or enhancements to the Software (e.g. V1.0 of the Software
will be replaced with V2.0 of the Software, with V2.0 an upgrade from V1.0, with
V2.0 subsequently followed by V3.0 and so on and so forth. Note, update increments may not necessarily be in values of 1);
“USB Drive” or “USB Flash Disc/Drive” means Hard disc drive for the purposes of this Agreement (see above);
“Use” means the opening and/or installation (loading) of the Software
with an Operating System and its
manipulation and/or exploitation on a computer or device by a user;
“User” means the individual or legal entity that is licensed to
use the Software or has effective control of the Software;
“Valid Credit Card” means credit card for the purposes of this
Agreement (see above);
“Version” means the numeric or alphanumeric value given to
the Software license as each subsequent edition is released for sale by Future
Corporation or its Affiliates at their absolute discretion and from time to time;
“Volume License” means either (i) a
Site License granted in single licenses, or (ii) a License Pack usually granted in
multiples of five (5) five licenses, or (iii) License Seats usually granted in multiples of one hundred
(100) licenses;
“Written notice” means any method of delivering written advice
to the recipient including but not limited to (i)
email, (ii) facsimile, (iii) post, (iv) courier, or (v) hand delivery and as
long as the written notice is delivered to the ordinary or registered address
of the recipient it does not require third party or independent verification to
effect legal notification;
“Year” or “Years” means consecutive calendar years and does not
exclude weekend days, or any: public, bank and government sanctioned public holidays
within such year or years;
2. NOTICE
SPECIFIC TO THE SOFTWARE
2.1
SOFTWARE LICENSE: FUTURE CORPORATION SOFTWARE IS
LICENSED, NOT SOLD, AND ANY REFERENCE TO THE SALE OF, TRANSFER OF,
TITLE OF, OR THE SELLING OF THE SOFTWARE HEREIN OR ANYWHERE AT ANY
FUTURE CORPORATION INTERNET SITE OR WITHIN ANY PRICE MATERIALS SHALL BE CONSTRUED AS THE
GRANT OF A
NONEXCLUSIVE LICENSE TO USE THE SOFTWARE ONLY IN
ACCORDANCE WITH ITS
SOFTWARE LICENSE AGREEMENT AND SHALL NOT BE CONSTRUED AS A SALE
OF ANY RIGHTS THERETO OR THEREIN THE SOFTWARE, ITS
ALGORITHMS, DESIGNS, METHODS, LAYOUTS, ORGANIZATION,
STRUCTURE AND/OR UNDERLYING TECHNOLOGIES OR ANY ASSOCIATED
INTELLECTUAL PROPERTY THEREOF. ANY FUTURE CORPORATION OR 3RD
PARTY SOFTWARE THAT IS MADE AVAILABLE TO DOWNLOAD FROM ANY FUTURE
CORPORATION INTERNET SITE OR ON DISC (CD/DVD) IS THE COPYRIGHTED
WORK OF FUTURE CORPORATION AND/OR ITS SUPPLIERS AND
FUTURE CORPORATION, ITS AFFILIATES, AND ITS SUPPLIERS RESERVE ALL OTHER
RIGHTS. USE OF SUCH SOFTWARE IS GOVERNED BY THE TERMS OF THE
SOFTWARE LICENSE AGREEMENT, AND YOU WILL BE UNABLE TO INSTALL ANY
SOFTWARE THAT IS ACCOMPANIED BY OR INCLUDES A SOFTWARE LICENSE
AGREEMENT, UNLESS YOU FIRST AGREE TO BE BOUND BY SUCH SOFTWARE
LICENSE AGREEMENT. THE SOFTWARE IS MADE AVAILABLE FOR DOWNLOADING OR
INSTALLATION SOLELY FOR USE BY END USERS ACCORDING TO THE SOFTWARE
LICENSE AGREEMENT. TO THE EXTENT PERMITTED BY LAW, ANY REPRODUCTION,
ATTEMPT TO CIRCUMVENT THE SOFTWARE PROTECTION MEASURES AND/OR REDISTRIBUTION OF THE SOFTWARE NOT IN ACCORDANCE WITH THE
SOFTWARE LICENSE AGREEMENT IS EXPRESSLY PROHIBITED, AND MAY RESULT
IN TERMINATION OF THE SOFTWARE LICENSE AND THIS AGREEMENT AND/OR A
CLAIM OF DAMAGES AGAINST YOU AND/OR SEVERE PENALTIES AT LAW. WITHOUT
LIMITING THE FOREGOING, AND UNLESS PERMITTED IN WRITING AND DULY
SIGNED BY AN AUTHORIZED SUPERVISOR OR MANAGER OF FUTURE CORPORATION OR ONE
OF ITS AUTHORIZED AFFILIATES COPYING OR REPRODUCTION OF THE SOFTWARE
TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR
REDISTRIBUTION IS HEREBY PROHIBITED;
2.2 THE SOFTWARE AND WARRANTY: FUTURE CORPORATION SOFTWARE IS WARRANTED, IF AT
ALL, ONLY ACCORDING TO THE TERMS OF THE
SOFTWARE LICENSE AGREEMENT.
EXCEPT AS WARRANTED IN THE SOFTWARE LICENSE AGREEMENT, AND TO THE
EXTENT PERMITTED BY LAW, FUTURE CORPORATION HEREBY DISCLAIMS ALL
WARRANTIES AND CONDITIONS WITH REGARD TO FUTURE CORPORATION AND 3RD
PARTY SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND
NON-INFRINGEMENT;
2.3
WARNING: (1) FUTURE CORPORATION SOFTWARE AND GOODS ARE NOT
DESIGNED WITH COMPONENTS AND TESTING FOR A LEVEL OF RELIABILITY
SUITABLE FOR USE IN OR IN CONNECTION WITH NUCLEAR OR
SCIENTIFIC OR LIKE FACILITIES THAT INVOLVE HIGH-RISK AND/OR
DANGEROUS ACTIVITIES, SURGICAL IMPLANTS OR AS CRITICAL
COMPONENTS IN ANY LIFE SUPPORT SYSTEMS WHOSE FAILURE TO PERFORM CAN
REASONABLY BE EXPECTED TO CAUSE SIGNIFICANT INJURY TO A PERSON OR
PERSONS AND/OR TO A POPULATION; AND (2) IN ANY APPLICATION, INCLUDING
THE ABOVE, RELIABILITY OF OPERATION OF FUTURE CORPORATION SOFTWARE CAN BE IMPAIRED BY ADVERSE FACTORS,
INCLUDING BUT NOT LIMITED TO FLUCTUATIONS IN ELECTRICAL POWER
SUPPLY, COMPUTER HARDWARE MALFUNCTIONS, COMPUTER OPERATING SYSTEM
SOFTWARE FITNESS, FITNESS OF COMPILERS AND DEVELOPMENT SOFTWARE USED
TO DEVELOP AN APPLICATION, INSTALLATION ERRORS, SOFTWARE AND
HARDWARE COMPATIBILITY PROBLEMS, MALFUNCTIONS OR FAILURES OF
ELECTRONIC MONITORING OR CONTROL DEVICES, TRANSIENT FAILURES OF
ELECTRONIC SYSTEMS (HARDWARE AND/OR SOFTWARE), UNANTICIPATED USES OR
MISUSES, OR ERRORS ON THE PART OF THE USER OR APPLICATIONS DESIGNER
(ADVERSE FACTORS SUCH AS THESE ARE HEREAFTER COLLECTIVELY TERMED
"SYSTEM FAILURES"). ANY APPLICATION WHERE A SYSTEM FAILURE WOULD
CREATE A RISK OF HARM TO PROPERTY OR PERSONS (INCLUDING THE RISK OF
BODILY INJURY AND DEATH) SHOULD NOT BE RELIANT SOLELY UPON ONE FORM
OF ELECTRONIC SYSTEM DUE TO THE RISK OF SYSTEM FAILURE. TO AVOID
DAMAGE, INJURY, OR DEATH, THE USER OR APPLICATION DESIGNER MUST TAKE
ALL REASONABLE STEPS TO PROTECT AGAINST SYSTEM FAILURES,
INCLUDING BUT NOT LIMITED TO BACK-UP OR SHUT DOWN MECHANISMS.
BECAUSE EACH END-USER SYSTEM IS CUSTOMIZED AND DIFFERS FROM FUTURE
CORPORATION’S TESTING PLATFORMS AND BECAUSE A USER OR APPLICATION
DESIGNER MAY USE FUTURE CORPORATION SOFTWARE AND/OR GOODS IN
COMBINATION WITH OTHER PRODUCTS IN A MANNER NOT EVALUATED OR
CONTEMPLATED BY FUTURE CORPORATION, THE USER OR APPLICATION DESIGNER
IS ULTIMATELY RESPONSIBLE FOR VERIFYING AND VALIDATING THE
SUITABILITY OF FUTURE CORPORATION SOFTWARE AND/OR GOODS WHENEVER
SUCH SOFTWARE AND/OR GOODS ARE INCORPORATED IN A SYSTEM OR
APPLICATION, INCLUDING, WITHOUT LIMITATION, THE APPROPRIATE DESIGN,
PROCESS AND SAFETY LEVEL OF SUCH SYSTEM OR APPLICATION;
3. SALES OF GOODS AND LICENSING
3.1 TITLE:
Ownership and property shall pass from Future Corporation to you
upon delivery of the Goods. Notwithstanding this Future Corporation
retains a security interest (see below) and right of possession in
the Goods until you make full and final payment. If payment is not made within
the agreed payment terms, Future Corporation shall without prejudice
to any other remedies, be entitled to enter the premises where the
Goods are situated and re-take possession of the Goods. Upon the
appointment of Receiver, Receiver and Manager, Liquidator or
Mortgagee in possession of the business of the Buyer, ownership of
any Goods for which the Future Corporation has not been paid will
immediately revert to the Future Corporation notwithstanding that
the due date for payment may not have elapsed. Future Corporation is
hereby granted an irrevocable license to enter such premises for the
purpose of repossessing the Goods and upon the re-taking of
possession Future Corporation shall have title to such Goods;
3.1.1 RISK OF LOSS AND INSURANCE: You shall bear all risks of loss or damage to Goods from any cause from date
of delivery to you and you shall keep the Goods insured against all risks of
loss or damage from every cause whatsoever during the term of this
Agreement or until the Goods are paid in full for not less than the
full replacement value thereof;
3.1.2
SECURITY INTEREST: On any sales or grant of a nonexclusive
License, you hereby grant to Future Corporation a priority or
equitable lien, purchase money security interest and/or chattel
mortgage in the Goods and in any accounts receivable or cash from
resale thereof until full payment is made to Future Corporation for
the Goods purchased or Software Licensed. On request of Future
Corporation, you agree to file any financing statements or other
appropriate document with all applicable governmental authorities to
assure the validity, priority, and enforceability of Future
Corporation's lien;
3.2 TAXES:
All prices, fees and charges listed herein are exclusive of, and you shall
pay, applicable goods and services, sales, use, service, value added
or like taxes, unless you have provided Future Corporation with
an appropriate exemption certificate for the delivery destination
acceptable to the applicable taxing authorities;
3.3
CUSTOM-MADE GOODS AND SOFTWARE
3.3.1 Custom-Made Goods:
As to any Goods which are made to
order (custom-made), you assume full responsibility for the specifications of the
Goods, including specifications suggested by Future Corporation and accepted by you, and for their
suitability for the use to which they are to be applied. You
acknowledge and agree to pay in full all fees and charges incurred
as set forth in section 3.3.3 (below) to Future Corporation;
3.3.2 Custom-Made Software:
As to any order or request by you to modify, alter or otherwise change
the Software ("CustomWare"), you assume full responsibility for the
specifications of such CustomWare, including specifications suggested by Future Corporation and accepted by you, and for their
suitability for the use to which they are to be applied.
You acknowledge and agree to pay in full all fees and charges incurred
as set forth in section 3.3.3 (below) to Future Corporation;
3.3.3 Fees and Charges: You hereby acknowledge and agree to
compensate Future Corporation all its fees and charges including but
not limited to any materials, base hourly rate (USD$660 per hour,
per developer or
part thereof), third party expenses and shipping charges for the
carrying out of the work as requested and/or ordered by you pursuant
to sections 3.3.1 and 3.3.2 (above);
3.4 PRICES
3.4.1
MSRP or RRP: Unless expressly stated otherwise in writing by Future
Corporation, all prices listed or displayed at: (i) Future
Corporation’s Internet Sites and/or listed or displayed in Future
Corporation: (ii) Catalogues, (iii) Brochures, (iv) Price Lists and
any and all related Marketing Materials (referred collectively
herein as "Price Materials") are stated in United States Dollars ("USD$")
and the prices offered are valid for a period of thirty (30) days
from the date of Future Corporation’s Offer.
3.4.1.1 Special Offers, Payment Options and Discounts: You
acknowledge and agree with Future Corporation that Future
Corporation, its Affiliates and/or its Authorized Dealers reserve
the right to refuse combining with each other, any and all: (i)
special offers; or (ii) one-off offers; and/or (iii) (a) discounts
and/or (b) special discounts; or (c) promotional discounts for the
Goods, and shall not be obliged or required by you, another or third
party to accept (i) pay by Installments; or (ii) pay by subscription,
which you further agree any acceptance thereof is at the absolute
discretion of Future Corporation, its Affiliates and/or its
Authorized Dealers;
3.4.2
Special Quotes and Trade Orders: All individual and/or non MSRP/RRP quotations
including but not limited to emails, facsimiles, written and verbal
offers are stated in USD$ and shall
expire thirty (30) days from date of issuance, unless otherwise set
forth on the quotation or agreed in writing by an authorized Future
Corporation supervisor or manager;
3.4.3
Pricing and Information Disclaimer: All pricing is subject to
change. For all prices, products and offers, Future Corporation
reserves the right to make adjustments due to changing market
conditions, product discontinuation, manufacturer price changes,
errors in advertisements and other extenuating circumstances. While Future Corporation uses reasonable
efforts to include accurate and up-to-date information, Future
Corporation makes no warranties or representations as to the
accuracy of its Price Materials. Future Corporation assumes no liability
or responsibility for any errors or omissions in the content of its
Price Materials;
3.4.4
Support-Services Charges: You hereby acknowledge and agree to
compensate Future Corporation at the rate of USD$220 per hour,
per incident or
part thereof, for Future Corporation providing any in-house,
telephone or online support
for any 3rd party software, computer hardware, cutting or printing
device, machine or any related equipment that (i) is not functioning
correctly or as it ordinarily should, or (ii) is faulty, or (iii) is
misconfigured, or (iv) is incapable of working with the Software, or
(v) is subject to malware, a virus, a Trojan or otherwise malicious
software or firmware; for or on your behalf;
3.5 PAYMENT
3.5.1
Casual Retail Sales:
Payments shall be made in full by you prior to delivery of the
Goods by
cashier’s or company check/cheque, credit or debit card (referred
collectively herein as "credit-card"), direct deposit,
electronic funds transfer ("EFT"), money
order or transfer, or via wire, or any other acceptable payment method which you
acknowledge is at Future Corporation’s sole discretion to either
accept or refuse. Where Future Corporation quotes and/or
lists prices in non USD$ ("Other Currency") and you offer to
pay with a valid credit-card and Future Corporation accepts such
credit-card and offer, Future Corporation will ordinarily charge in
that currency. However, Future Corporation reserves the right to calculate and process
such payment to an amount equivalent to such Other Currency in AUD$
or USD$
as listed by and at http://www.xe.com.
All other payment methods unless agreed to in writing by Future
Corporation prior to payment must be to an equivalent amount in USD$
as listed by and at http://www.xe.com
on the same day of payment. For example, if a product is listed at
EUR€1.00,00 and the equivalent according to
http://www.xe.com is
USD$150.00 on such day, then USD$150.00 is the amount which must be
paid to Future Corporation for the order to be accepted should all
other terms and conditions as listed herein be satisfied;
3.5.2
Credit Sales: If Future Corporation approves your credit
application for credit terms, payment shall be due no later than 30
days from the date of Future Corporation’s invoice. All sums not
paid when due shall accrue interest daily at the lesser of a monthly
rate of 1.5% or the highest rate permissible by law on the unpaid
balance until paid in full;
3.5.3 Installment Sales: Future Corporation, its Affiliates and/or its Authorized Dealers may
in their absolute discretion permit you to pay for
certain Future Corporation Software Licenses
in
Installments until such time as the Software License is paid in
full, in lieu of paying upfront, as set
out in Future Corporation's Price Materials subject to the terms and
conditions as set forth below (collectively "Installment Software").
If you apply to pay for a Software License by Installments and
Future Corporation accepts your application, and except as expressly limited by applicable law, you
hereby agree and warrant that: (i) your
purchase of
Installment Software forms an irrevocable and binding agreement that is non-cancellable
during the Installment period, or until the Software License is paid
in full (whichever is the earlier); and (ii)
Installment Software is a payment
method for the Software License to be paid in Installments over an agreed period of time, including any and all related charges
or fees
that equals
the whole amount otherwise payable for the Software License when all Installments have been paid to Future Corporation;
and (iii)
you acknowledge and agree to be bound by all those terms applicable to
you and/or the legal entity that obtained the software and on whose
behalf it is used under the
Software License Agreement
and in particular but not limited to sections 3.5.3.1, 6.3, 6.4 and 6.5
pursuant to such Installment Software; and (iv) pursuant to this
agreement you will provide
identification documents and/or numbers and dates,
contact telephone number(s) and other relevant details thereof, as set out in
the application document or online form as provided by Future Corporation, its
Affiliates and/or its Authorized Dealers; and (v) you will provide the
necessary details of a valid credit-card that you certify is lawfully issued by
a credit-card provider to you that is a type of credit-card accepted by Future
Corporation, its Affiliates and/or its Authorized Dealers (as set out in the
application document) and that you are authorized by law to use and bind such
credit-card to this and for the full term of this Agreement; and (vi) you agree to be responsible for any bank fees or
charges, credit-card provider fees or charges, costs or conversion
charges, and all other charges that may apply as a result of foreign exchange rates, and/or international or domestic
processing fees and charges incurred as a result of making your Installment
payments; and (vii) Future Corporation, its Affiliates and/or its
Authorized Dealers
may at their
discretion (a) round the Installment Amount up or down to the nearest
whole dollar and (b) adjust the Installment due date to any day it sees fit of each
subsequent month after the initial Installment payment (e.g. if your
application is approved on the "x" day of the month Future
Corporation, its Affiliates and/or its Authorized Dealers may at their
discretion reset all future payments to the 1st day of each month
for the remainder thereafter of the Agreement); and (viii) you shall at all times
keep the credit facility associated with your credit-card subject to this
Agreement in good standing and with sufficient credit to meet your obligation
under this Agreement when it falls due each month of the Agreed term until the
Agreement is concluded; and (ix) Future Corporation, its
Affiliates and/or its Authorized Dealers will record and retain the
credit-card information provided by you pursuant to this section in
order to process the Installment Amount each month of the agreed term
until such time as the Installment Software is paid in full by you and/or as is reasonably required;
and (x) Future Corporation reserves the right to indefinitely
suspend the Software from operating on your computer or computers after fourteen (14) days for non and/or delayed payment of
Installment Software until such time that any outstanding moneys
pursuant to this section are paid in full by you and you hereby
acknowledge and agree with Future Corporation that any suspension of
the Software's operation under this section does not waive, suspend
or cancel any of your obligations under these Terms and Conditions
of Sale herein, or the Software License Agreement; and (xi) pursuant to this Agreement you acknowledge
that Future Corporation IS NOT a Financial Services Provider and the Installment
Scheme is not a credit line or revolving credit facility and that Future
Corporation IS NOT providing any financial advice or recommendation
or any financial service or product to you;
3.5.3.1
DIRECTORS GUARANTEE: PURSUANT TO SECTION 3.5.3 ABOVE AND WHERE
THE SOFTWARE HAS BEEN LICENSED AS INSTALLMENT SOFTWARE BY A LEGAL
ENTITY OTHER THAN A NATURAL PERSON INCLUDING BUT NOT LIMITED TO A
PRIVATE OR PUBLICALLY LISTED COMPANY, CORPORATION AND/OR BUSINESS
MANAGED AND/OR OPERATED BY DIRECTORS, MEMBERS AND/OR MANAGERS
(HEREAFTER "THE COMPANY") EACH DIRECTOR, MEMBER OR MANAGER THEREOF
IRREVOCABLY AND UNCONDITIONALLY AGREES TO PERSONALLY GUARANTEE THE
PERFORMANCE OF THE INSTALLMENT SOFTWARE AGREEMENT BY THE COMPANY AND
ALL PRESENT AND FUTURE PAYMENT OBLIGATIONS OF THE COMPANY PURSUANT
TO THE AGREEMENT AS VARIED FROM TIME TO TIME. THE OBLIGATIONS OF
EACH DIRECTOR, MEMBER OR MANAGER OF GUARANTEEING THE DEBTS UNDER
THIS GUARANTEE ARE JOINT AND SEVERAL AND ARE CONTINUING OBLIGATIONS
UNTIL ONLY SUCH TIME AS THE INSTALLMENT SOFTWARE IS PAID IN FULL AND
NO MONEYS REMAIN OUTSTANDING TO FUTURE CORPORATION BY THE COMPANY;
3.5.3.2 INSTALLMENT SOFTWARE UPGRADES: Pursuant to section
3.5.3 above and where you have requested to upgrade your existing
Installment Software License to a more recent Software License
("Upgrade") notwithstanding the payment method, and such request has
been accepted by Future Corporation, its Affiliate and/or an Authorized Dealer,
you hereby acknowledge and agree with Future Corporation that all
current and future payments for your existing Installment Software
shall remain payable in full under the terms of the Agreement, only unless: (i) any and all current
and outstanding amounts are paid in full; or, (ii) the Installment
amount and/or the frequency of Installment payments are modified
and/or incorporated into a replacement Installment Software Agreement
under the terms and conditions set out by Future Corporation which shall be
in writing, and in Future Corporation's absolute discretion;
3.5.4 Subscription Sales: Future Corporation, its Affiliates and/or its Authorized Dealers
may, but are under no obligation to allow
you to
License
certain Future Corporation Software Licenses on a Subscription
basis, payable in advance,
as set out in Future Corporation's Price Materials subject to the
terms and conditions as set forth below (collectively "Subscription Software").
If you elect to License the Software on a
Subscription basis and except as expressly limited by
applicable law, you agree that: (i) your
rights to use the Software are limited to the Subscription period; and, (ii)
Subscription software is subject to all the terms and conditions of the
Software License Agreement;
and, (iii) after the termination of your Subscription the Software
will cease to operate. You hereby acknowledge and agree with Future Corporation, its Affiliates and/or its Authorized Dealers
that Subscription Software shall automatically
recommence for the same period at the conclusion of each Subscription period
(roll-over) unless (i)
cancelled by you or Future Corporation in writing; and,
(ii) if cancelled you shall: (a) obtain a return authorisation (RA) number from Future Corporation; and, (b)
uninstall and where applicable deactivate and/or
deregister the Software; and, (c) return any media and other associated
materials including the hardware security device (if applicable)
to Future Corporation or the place of purchase; and (d) obtain a receipt for
such return as evidence of such termination of your Subscription Software.
If you apply to pay your License by Subscription, and
except as expressly limited by applicable law, you agree that: (i) you will provide identification documents and/or numbers
and dates, contact
telephone number(s) and other relevant details thereof, as set out in the
application document or online form as provided by Future Corporation, its Affiliates
and/or its Authorized Dealers; and (ii) you will provide the necessary
details of a valid credit-card that you certify is lawfully issued by a
credit-card provider to you that is a type of credit-card accepted by Future
Corporation, its Affiliates and/or its Authorized Dealers (as set out in the
application document) and that you are authorized by law to use and bind such
credit-card to this and for the full term of this Agreement; and (iii) the
credit-card shall remain current for Subscription period; and (iv) Future Corporation, its Affiliates and/or its Authorized
Dealers shall process and take payment from your credit-card ("Subscription
Installment") to an amount (a) equal to the Subscription fee of the
Software as listed at the Software’s Internet site and/or published
by Future Corporation in its Price Materials from time to time; and,
(b) you agree to be responsible for any
bank fees or charges, credit-card provider fees or charges, costs or
conversion charges, and all other charges that may apply as a result of foreign exchange rates, and/or international or domestic
processing fees and charges incurred as a result of making your Installment
payment.; and (v) Future Corporation, its Affiliates and/or its Authorized
Dealers may at their
discretion (a) round the
Subscription fee up or down to the nearest whole dollar and adjust the
Installment due date to any day it sees fit of each
subsequent month after the initial Installment payment (e.g. if your application
is approved on the "x" day of the month Future Corporation, its
Affiliates and/or its Authorized Dealers may at their discretion reset all
future payments to the 1st day of each month for the remainder
thereafter of the Agreement); and (vi) you shall at all times keep the credit
facility associated with your credit-card subject to this Agreement in good
standing and with sufficient credit to meet your obligation under this
Agreement when it falls due each month of the Subscription period until the
Agreement is concluded; and (vii)
you acknowledge and agree that Future Corporation, its Affiliates and/or its
Authorized Dealers will record and retain the credit-card information provided
by you pursuant to this section in order to process the Subscription Installment
each month of the agreed term and/or as is reasonably required; and
(viii) Future Corporation reserves the right to indefinitely suspend
the Software from operating on your computer or computers after
fourteen (14) days for non and/or delayed payment of a Subscription
Installment until such time that any outstanding moneys pursuant to
this section are paid in full by you and you hereby acknowledge and
agree with Future Corporation that any suspension of the Software's
operation under this section does not waive, suspend or cancel any
of your obligations under these Terms and Conditions of Sale herein,
or the Software License Agreement; and (ix)
pursuant to this Agreement you acknowledge
that Future Corporation IS NOT a Financial Services Provider and that the
Subscription is not a loan, credit line or revolving credit facility and that
Future Corporation IS NOT providing finance or any financial advice or
recommendation or any financial service or product to you, only a choice of
licensing and related payment method, that is at Future Corporation’s, its
Affiliate’s and/or its Authorized Dealers’ absolute discretion to provide to
you, your nominee or third party; and
(x)
you acknowledge and agree to be bound by all those terms applicable to
you and/or the legal entity that obtained the software and on whose behalf it is
used under the
Software License Agreement
and in particular but not limited to sections 6.3, 6.4 and 6.5
pursuant to such Subscription Software;
3.5.5
3rd Party Fees and Charges: Notwithstanding any payment method
described herein, you agree to be responsible for any bank fees or
charges, credit-card provider fees or charges, costs or conversion
charges, and all other charges that may apply as a result of foreign exchange rates, and/or international or domestic
processing fees and charges incurred as a result of Future Corporation accepting and processing your payment.
Future Corporation reserves the right to (i) process your
payment in your local currency as listed or quoted by Future
Corporation and (ii) reject or refuse any non USD$ payment
regardless of payment method or type;
3.5.6
Foreign Exchange Losses: Future Corporation shall not be held
responsible or liable for any foreign exchange movements which may occur during the period of
a sales transaction with you,
nor shall you claim any losses incurred as a result of such
foreign exchange movements. For example, where a non US credit card
is provided by you and payment is taken by Future Corporation in
USD$, and is refunded in USD$ at a later date and during that period the USD$ loses value
against the other currency, and consequently,
the refund
results in your net loss, Future Corporation shall not be held liable
or responsible to
refund or make good any such loss to you, another or third party under any
circumstances;
3.5.7
Cash Back or Cashback Offers: Where Future Corporation offers
cash or other pecuniary benefit to you when purchasing Goods from Future
Corporation
its Affiliates and/or its Authorized Dealers
(Hereafter "Cash Back")
you hereby acknowledge and agree with Future Corporation that (i)
All Cash Back claims must be registered online. All supporting
documents should be sent within fourteen (14) days of purchase.
Applications sent after this period will not be accepted. No
extensions will be given under any circumstances; and
(ii) Once your claim has been received and accepted by Future Corporation,
please allow up to eight (8) weeks for the delivery of your
check/cheque by ordinary mail; and
(iii) A print out of the completed online form, bearing a system
generated Cash Back claim number must be mailed in, along with a
legible copy of the invoice or receipt from the place of purchase, the physical
barcode label and if applicable the Product Serial Number ("PSN");
and
(iv) Delivery dockets, hand written store receipts and photocopies of
the barcode will not be accepted. No responsibility is taken for
late, lost or misdirected mail; and
(v) The Cash Back Offer is limited to ten (10) Cash Back claims per
customer for each product in any given twelve (12) month period; and
(vi) A single PSN can be used for ONE claim ONLY. A claim will not
be accepted if the same PSN has been used on another claim; and
(vii) The purchase date is determined by the date of the
invoice or receipt issued by the place of purchase submitted by you
with the claim; and (viii) Future Corporation reserves the right to
refuse any claim if the product purchased is returned for any
reasons; and (ix) The Cash Back Offer is not available for products
sold in conjunction with any other special offer or promotional
product bundle; and (x) All claims are subject to verification by
Future Corporation and Future Corporation reserves the right to
reject any claim which does not comply with these terms and
conditions; and
(xi) Employees of Future Corporation and its Affiliates and/or its Authorized Dealers,
Resellers, Distributors and Agencies associated with this Cash Back offer are
not eligible for the Cash Back offer; and (xii) any further
terms and conditions published under the Cash Back offer;
3.6
RETURNS, CANCELLATIONS AND REFUNDS
3.6.1
Future Corporation Software - Returns: The
Future Corporation fourteen (14) day money back guarantee for the
Software is strictly subject to Part III of the
Software License Agreement
and No returns will be accepted by Future Corporation, or its
Affiliates and/or its Authorized Dealers after the
fourteen (14) day
period has expired. It is your responsibility to satisfy yourself as
to the suitability of the Software for your purposes. Any failure to
do so will not give rise to an extension or recalculating of time
from the purchase date;
3.6.1.1 Future Corporation Installment Software -
Non-Cancellable:
Payments for Future Corporation Installment Software ARE NOT subject
to cancelation by the Licensee or their nominee under any
circumstances. Notwithstanding suspension under section 3.5.3 herein
and/or termination under sections 3.7.2 or
6.3 of the
Software License Agreement
you hereby acknowledge and agree with Future Corporation, its
Affiliates and/or its Authorized Dealers that where you have applied
and been granted a Software License payable by Installments that (i)
all payments shall be paid by the date each payment falls due; and
(ii) your obligation to pay the whole amount for the Software
License including any fees and charges is absolute and cannot be
waived by you for any reason; and (iii) failure to meet your
obligations under this section and section 3.5.3 herein shall
result in your debt being forwarded to a collection agency for
collection and a negative report recorded on your credit rating
and/or legal action to recover any outstanding moneys;
3.6.2
Future Corporation Hardware and 3rd Party Software:
You may return unopened/unused Hardware or 3rd Party Software within thirty
(30) days of the Delivery Date. You shall pay a fifteen percent
(15%) restocking charge on any unopened/unused Hardware or 3rd Party
Software returned to Future Corporation. No returns will be accepted
after the thirty (30) day period has expired. Where special
equipment or services are involved, you shall be responsible for all
related work in progress; however, Future Corporation shall take
reasonable steps to mitigate damages immediately upon receipt of a
written cancellation notice from you. A return authorisation number
("RA") must be obtained from Future Corporation for return of any
Hardware or 3rd Party Software. Future Corporation may terminate any
order if any representations made by you to Future Corporation are
false or misleading. Changes to orders shall not be binding upon nor
be put into effect by Future Corporation unless confirmed in writing
by Future Corporation’s authorized representative;
3.6.3
Custom-Made Goods and Software: Neither Custom-Made Goods or
CustomWare pursuant to sections 3.3.1 and 3.1.2 (above) can be
cancelled or returned for any refund since these goods have been
requested and/or ordered and subsequently developed and created
exclusively for you;
3.6.4
Credit Card Chargeback: An unauthorized or inappropriate chargeback by credit card customers is
costly to process and respond to and may subject the person making the chargeback
to civil and criminal liability. If you wish to return and obtain a
refund for a Future Corporation Software product, see Part III of
the
Software License Agreement.
If you wish to return a Future Corporation Hardware or 3rd Party
Software product see the Returns and Refunds section to accomplish a
return (above), if qualified. Any unauthorized, inappropriate or
otherwise unlawful chargeback will
be automatically rejected and contested by Future Corporation and will be subject to
(i) a
USD$50 fee charged to your credit card; and (ii) an amount equal in
USD$ to any net loss incurred by Future Corporation due to any
foreign exchange rate movements. By ordering from Future
Corporation you agree to the Terms and Conditions of Sale herein and give Future Corporation the authority
to charge your credit card the aforementioned service fee and any foreign
exchange losses to cover the cost of
processing any chargeback you issue. If you subsequently chargeback
any or all of those fees and charges, your account will be forwarded to a collection
agency for collection and a negative report will be recorded on your credit
rating. Any chargeback
for a Future Corporation Software product
may result in (i) permanent cancellation of your credit-card
purchasing privileges; and/or (ii) suspension and/or cancellation
of all Licenses and/or Subscriptions acquired by you;
and/or (iii) cancellation or rejection of an uncompleted refund; or
a refund in process; and/or (iv)
other
applicable action as set forth in the Software License Agreement;
and (v) Future Corporation reserves the right
to
prosecute all misuse of credit cards to the fullest extent permitted
by law and to
discontinue any and all communications with you;
3.6.5
Wire Errors: Wire transfer customers should take great care in
obtaining full information before wiring funds to Future Corporation. Any funds returned for wire transfers sent in error
or otherwise cancelled will have a USD$100 wire transfer fee
deducted. Please take the time to have all questions answered before
sending a wire transfer to make sure you are ordering what you want.
Before sending a wire transfer, please make sure to contact
sales@iifuture.com to obtain complete instructions;
3.6.6
Dishonoured Check/Cheque: If a check/cheque you provide for
payment is dishonoured for any reason by the bank or other
institution on which it is drawn, you agree to pay a USD$40
service and processing fee to Future Corporation. In addition,
you agree to pay any other reasonable charges imposed by any check
verification company or collection agency that we may use for
collection;
3.6.7 Electronic Communications: You hereby acknowledge and
agree with Future Corporation, its Affiliates and/or its Authorized Dealers
that any electronic communications including but not limited to
email and/or a messenger service provided by another or 3rd party
including but not limited to services provided by AOL, eBay, Gawab,
Google (gmail), GMX, Hotmail, HushMail, iCloud, Mail.com, Messenger,
Microsoft (Live and MSN), Skype, Tiscali, Yahoo or Zoho shall be
solely at your own risk and that Future Corporation shall be under
no obligation to guarantee receipt or delivery of any electronic
communications with you, nor shall Future Corporation have any
obligation to contact you by any other means should any electronic
communications fail even if Future Corporation or its representative
is advised or becomes aware of any such or potential failure;
3.6.7.1
Electronic Communications and Spam email: Pursuant to section 3.6.7
above Future Corporation reserves the right to temporarily or
permanently block and/or refuse to accept any email messages from any
email address that transmits illegitimate and/or unsolicited
messages to its servers or computer systems notwithstanding any
relationship the sender has or purports to have with Future Corporation
(hereafter "Spam email"), and you hereby agree that you shall indemnify and hold Future Corporation harmless from and against any and all
claims, actions, suits, proceedings, costs, expenses, damages, and liabilities,
including legal fees (on an attorney/solicitor and own client basis) arising out
of, connected with, or resulting from Future Corporation's refusal
to accept your email and/or blocking of any email address howsoever
associated with you that Future Corporation in its absolute
discretion deems to be Spam email;
3.7 ORDERS
3.7.1
Acceptance and Rejection Policy: All orders for the Goods are subject to acceptance by
Future Corporation and Future Corporation reserves the right to
refuse or reject your application and/or offer to purchase the Goods
for any, or no reason, or to cancel any transaction
at Future Corporation's absolute discretion.
By way
of example, but not limitation, some reasons why Future Corporation may choose not to do business with a given
person or legal entity or
to cancel a particular transaction may include any actual or
suspected illegal or immoral activity, any fraud or suspicion
thereof in commercial transactions, previous history of credit card chargeback
or other financial abuse, violations of Software Licensing terms and
conditions or any profanity, threats or other abusive behaviour
directed at Future Corporation employees, contractors, agents,
dealers, suppliers and/or
representatives or threats or other abusive behaviour within Future
Corporation hosted user communities. Moreover, the Software License Agreement for Future Corporation
software explicitly specifies that the license terminates if the
Agreement is violated. Any such termination may be automatically
enforced by the software itself, and if such termination occurs
you
will not receive any refund for any Licensing and/or Subscription fees paid. For
example, if you violate the Software License Agreement by installing a single
License
of Future Corporation Software on multiple machines for use by multiple
persons, the Software will eventually terminate itself and will revoke
the Activation, and/or Customer, and/or Product and/or Serial number for that
License;
3.7.2
Out of Stock: - Orders Paid by Check/Cheque, EFT, Wire or Credit
Card: Items not available for immediate shipment will be shipped
as they become available. Items not available at the end of 30 days
will be cancelled and refunded/credited. The number of backorder
days may be extended beyond 30 days with your approval. If a refund
check is issued, the cancelled item can be re-entered without a
handling charge if the check and cancellation notice are returned to
us;
3.7.3 Out of Stock: - Orders On Credit Account: Items not
available for immediate shipment will be shipped as they become
available. Items not available at the end of 60 days will be
cancelled. The number of backorder days may be extended beyond 60
days with your approval;
3.7.4
Embargoes: Please note that at times,
Future Corporation must restrict the sale of certain Goods
within specific geographic regions because of various contractual
arrangements;
3.8 DELIVERY
3.8.1
Shipment by Carrier/Courier: Future
Corporation shall deliver the Goods to a carrier at Future
Corporation’s place of business. You shall pay (a)
all applicable
freight charges and fees, and (b) any import and/or Customs duties,
fees, charges, taxes and/or any related or indirect costs incurred
by you, and (c) insurance against loss at your
option. Orders are entered as close as possible to the your
requested shipment date, if any. Shipment dates are scheduled after
acceptance of orders and receipt of necessary documents. Claims for
shipment shortage shall be deemed waived unless presented to Future
Corporation in writing within fourteen (14) days of delivery and in
all cases no more than twenty eight (28) days of shipment from
Future Corporation's place of business;
3.8.2 Shipment by Unregistered Post: Where you have elected to
have the Goods shipped by Unregistered Post regardless of the postal
carrier or postal class, packaging type or destination, Future
Corporation shall not assume any responsibility or liability to you,
other or third party for any delay, damage or loss, of or to the
Goods and all risk thereof shall be borne by you;
3.8.3
Download Software: Some
Future Corporation and 3rd Party Software is downloaded by default
(collectively in this section "Download Software"). When your
Download Software order is processed you will receive either (i) email
instructions for downloading your order by Internet; or (ii) be provided
with an immediate link from which to obtain the Download Software;
or (iii) any other method of like delivery deemed suitable by Future
Corporation.
Download Software files are generally large and range from 50MB to over
2GB. If
your Internet connection is not reliable enough to download large files without error, please also order a Future Corporation
Media Pack to receive either a CD or DVD installation media. Unless
stated in writing Download Software prices do not include CD/DVD media - no
CD/DVD
will be sent unless you also order a Future Corporation Media Pack;
3.8.4 Force Majeure: Future Corporation shall be excused for any delay
or failure to perform due to any cause beyond its reasonable
control, including but not limited to acts of governments, natural
catastrophes, acts of you, interruptions of transportation or
inability to obtain necessary labour or materials. Future
Corporation’s estimated shipping schedule shall be extended by a
period of time equal to the time lost because of any excusable
delay. In the event Future Corporation is unable to perform in whole
or in part because of any excusable failure to perform, Future
Corporation may cancel orders without liability to you;
3.8.5 Import and Export Restrictions:
Pursuant to this Agreement herein, your Output Files and
the Software, you acknowledge and agree with
Future
Corporation, its Affiliates, and/or its Authorized Dealers to comply with all applicable export and import and/or Customs laws
and regulations applicable to or within your jurisdiction and you hereby warrant
to Future Corporation, its Affiliates, and its Suppliers
that you shall not export Future Corporation or 3rd Party Software
without the written permission of Future Corporation duly signed by
an authorized Future Corporation manager;
4.
LIMITED WARRANTY
4.1
Hardware: Future Corporation Hardware Products are warranted
against defects in materials and workmanship for one (1) year from
the date Future Corporation ships the Hardware to you ("Delivery
Date");
4.1.1
Future Corporation and 3rd Party Software: All Future
Corporation and 3rd Party Software is Licensed to you under the
terms of each Software's respective
Software License Agreement for
the period as set forth in such Agreement and this shall represent
the limited warranty, if any, of such Software;
4.1.2
Hardware and Software: Future
Corporation Software, when sold and properly installed on Future
Corporation Hardware Products (collectively in this section "the
Hardware Goods"), (a) will perform substantially in
accordance with the accompanying written materials, and (b) the
medium on which the Software
is recorded will be free from defects in materials and workmanship
under normal use and service. Any replacement of the Hardware Goods will be warranted for the remainder of the
original warranty period or thirty (30) days, whichever is longer. You must obtain a Return Authorization
(RA) number from
Future Corporation before returning any Software or Hardware Goods under warranty to
Future Corporation. You shall pay expenses for shipment of
repaired or replacement Goods under warranty to
Future Corporation. You shall pay expenses for shipment of
repaired or replacement Hardware Goods to and from Future Corporation.
After examining and testing returned Hardware Goods, if Future
Corporation concludes that such returned Hardware Goods is not defective,
you will be notified, the Hardware Goods returned at your
expense, and a charge made for examination and testing. This Limited
Warranty is void if failure of the Hardware Goods has resulted from
accident, abuse, misapplication, modification, improper calibration
by you, you supplied third party software not intended for
use with the applicable Future Corporation Software, utilization of
an improper hardware or software key or unauthorized maintenance or
repair;
4.2
YOUR REMEDIES: Excluding Future Corporation and 3rd Party
Software where any Limited Warranty, if any, is governed exclusively
by such Software's respective Software License Agreement. Future Corporation’s sole obligation (and
your sole remedy) with respect to part (a) and (c) of the foregoing Limited
Warranty shall be to, at Future Corporation's absolute discretion, return the fees paid or
repair/replace any defective Goods, provided that Future
Corporation receives written notice of such defects during the
applicable warranty period. To the extent permitted by law, you may
not bring an action to enforce its remedies under the foregoing
Limited Warranty more than one (1) year after the accrual of such
cause of action;
4.3 NO
OTHER WARRANTIES: TO THE EXTENT PERMITTED BY LAW AND EXCEPT AS
EXPRESSLY SET FORTH ABOVE AND/OR GOVERNED EXCLUSIVELY BY THE FUTURE
CORPORATION
SOFTWARE LICENSE AGREEMENT THE GOODS INCLUDING BUT NOT
LIMITED TO CUSTOM-MADE GOODS AND/OR SOFTWARE ARE PROVIDED "AS-IS" WITHOUT WARRANTY OF
ANY KIND, AND NO OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED ARE
MADE WITH RESPECT TO THE GOODS, INCLUDING BUT NOT LIMITED TO ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY OTHER WARRANTIES THAT MAY
ARISE FROM USAGE OF TRADE, CUSTOM OR COURSE OF DEALING. FUTURE
CORPORATION DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS
REGARDING THE USE OF OR THE RESULTS OF THE USE OF THE GOODS IN TERMS
OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE AND DOES NOT
WARRANT THAT THE OPERATION OF THE GOODS WILL BE UNINTERRUPTED OR
ERROR FREE. FUTURE CORPORATION EXPRESSLY DISCLAIMS ANY WARRANTIES
NOT STATED HEREIN;
5. NO LIABILITY
5.1 NO
LIABILITY FOR CONSEQUENTIAL DAMAGES:
EXCEPT FOR FUTURE CORPORATION SOFTWARE AND THE EXCLUSIVE REMEDY SET FORTH IN SECTION 2.8.2
(CONSTRAINED BY SECTIONS 2.5.7, 2.9, AND 2.10) OF THE FUTURE
CORPORATION
SOFTWARE LICENSE AGREEMENT, IN NO
EVENT WILL FUTURE CORPORATION, ITS AFFILIATES,
AND/OR
ITS SUPPLIERS BE LIABLE TO YOU FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS
WHATSOEVER INCLUDING ANY SPECIAL, CONSEQUENTIAL, INDIRECT, ECONOMIC OR
INCIDENTAL DAMAGES, LOST TIME, LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING
FROM BUSINESS INTERRUPTION, LOST DATA, OR TO BUSINESS AND/OR PERSONAL
REPUTATION, PERSONAL INJURY (INCLUDING DEATH) OR FAILURE TO MEET ANY DUTY OF
CARE, OR CLAIMS BY A THIRD PARTY ARISING FROM THIS AGREEMENT, EVEN IF FUTURE
CORPORATION, ITS AFFILIATES, ITS SUPPLIERS AND/OR AUTHORIZED DEALERS AND/OR A
FUTURE CORPORATION REPRESENTATIVE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
LOSS, DAMAGES, CLAIMS OR COSTS. FUTURE
CORPORATION’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES,
AND/OR
ITS SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL
BE LIMITED TO THE AMOUNT PAID FOR THE GOODS AND/OR FEES PAID FOR A NONEXCLUSIVE LICENSE, IF ANY. THIS LIMITATION WILL
APPLY EVEN IN THE EVENT OF A FUNDAMENTAL, MATERIAL OR SERIOUS BREACH OR A
BREACH OF THE FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT. FUTURE
CORPORATION IS ACTING ON BEHALF OF ITS AFFILIATES,
AND/OR
ITS SUPPLIERS FOR THE PURPOSE OF DISCLAIMING, EXCLUDING AND LIMITING OBLIGATIONS,
WARRANTIES AND LIABILITY WITH RESPECT TO THIS AGREEMENT ONLY AND FOR NO OTHER
PURPOSE OR RESPECT. IF YOU ARE LOCATED OR WISH TO TAKE FUTURE CORPORATION
SOFTWARE AND/OR GOODS OUTSIDE OF AUSTRALIAN JURISDICTION YOU HEREBY
ACKNOWLEDGE AND AGREE THAT YOU DO SO ENTIRELY AT YOUR OWN RISK.
NOTWITHSTANDING THIS AND BECAUSE SOME JURISDICTIONS DO NOT
ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR
INCIDENTAL DAMAGES, SUCH LIMITATION MAY NOT APPLY TO YOU. IF THE
FOREGOING LIMITATION OF LIABILITY IS NOT ENFORCEABLE BECAUSE FUTURE
CORPORATION GOODS SOLD OR LICENSED TO YOU IS DETERMINED BY A COURT
OF COMPETENT JURISDICTION IN A FINAL, NON-APPEALABLE JUDGMENT TO BE
DEFECTIVE AND TO HAVE DIRECTLY CAUSED BODILY INJURY, DEATH, OR
PROPERTY DAMAGE, IN NO EVENT SHALL FUTURE CORPORATION’S LIABILITY
FOR PROPERTY DAMAGE EXCEED THE GREATER OF THE FEES PAID, IF ANY, FOR
THE SPECIFIC GOODS THAT CAUSED SUCH DAMAGE;
6.
SOFTWARE - LIMITED INDEMNITY AGAINST INFRINGEMENT
6.1
Within Australian Jurisdiction: See section 2.11.1 of the
Software License Agreement;
6.2 Outside Australian Jurisdiction: See section 2.11.2 of the Software License Agreement;
6.3 Content Files: See section 2.11.3 of the Software License Agreement;
7.
SERVICES
7.1 Limited Warranty:
Future Corporation warrants that Services will be performed in a
good and workmanlike manner. Except as expressly stated in the
preceding sentence, Future Corporation makes no express or implied
warranties with respect to the Services, including but not limited
to (a) any warranty relating to third-party products or (b) any
warranty concerning the results to be obtained from the Services or
the results of any recommendation Future Corporation may make,
including without limitation any implied warranties concerning the
performance, merchantability, suitability, non-infringement or
fitness for a particular purpose of any of the deliverables or of
any system that may result from the implementation of any
recommendation Future Corporation may provide. In order to receive
warranty remedies, deficiencies in the Services must be reported to
Future Corporation in writing within 90 days of completion of the
Services;
7.2 Limitation of Liability:
Future Corporation is not liable for any incidental, indirect,
special, or consequential damages arising out of or in connection
with the Services provided by Future Corporation, including without
limitation loss of use of the Software or any other software or
data, including inability to achieve a particular result, even if
Future Corporation has been advised of the possibility of such
damages or even if the damage is the direct result of an instruction
or suggestion made by Future Corporation. Except for claims that the
Services caused bodily injury (including death), Future
Corporation’s total liability arising out of or in connection with
any event or series of connected events occurring in connection with
the Services shall not exceed the amount of fees paid under the
separate written agreement between you and Future Corporation. These
provisions allocate the risks under the separate written agreement
between you and Future Corporation. Future Corporation’s pricing
reflects this allocation of risk and the limitation of liability
specified herein;
7.3
High Risk Activities:
You acknowledge and agree that Future Corporation has not tested
or certified its Services for use in high risk applications
including medical life support, nuclear power, mass and air
transportation control, or any other potentially life critical uses
and make no assurances that the Services are suitable for any high
risk uses;
7.4 Indemnification:
You accept responsibility
for, and agree to indemnify and hold Future Corporation harmless
from, any and all liability, damages, claims, or proceedings arising
out of (a) the failure of you to obtain the appropriate
license, intellectual property rights, or any other permissions
required to support any Goods or Future Corporation’s performance
of the Services, including but not limited to, the right to make any
copies or reproductions of any of your software or (b) any
inaccurate representations regarding the existence of an export
license or the eligibility for export of software or other materials
without a license;
8. TECHNICAL
SUPPORT
8.1
Future Corporation Software: All Future
Corporation Software is Licensed to you under the terms of the
Software License Agreement
for
the period as set forth in such Agreement and this shall represent
the only Technical Support provided, if any, for the Software;
8.2
Future Corporation Hardware and Services, and 3rd Party Software:
Unless expressly stated in the Price Materials or in a separate
Agreement duly signed by an authorized Future Corporation supervisor
or manager
Future Corporation Hardware and Services, and 3rd Party Software are in general
sold or Licensed without any
Technical Support;
9.
GOVERNING LAW
9.1
Australia: You hereby acknowledge reading
these Terms and Conditions, understanding them and agree to be bound
by them. A waiver of any provision of this agreement shall not be
construed as a waiver or modification of any other term hereof. With
respect to all applications and orders accepted by Future Corporation in
Australia, disputes arising in connection with these Terms and
Conditions of Sale shall be governed by the laws of the State of
Victoria which shall govern
the interpretation of this Agreement and applies to claims for
breach of it. Australian Commonwealth law and the laws of your state
or territory may govern other claims, including claims under state
consumer protection laws, unfair competition laws, and in tort.
Notwithstanding this, you acknowledge and agree with Future
Corporation that any and all claims by you shall be brought in the
state of Victoria in any Melbourne court of competent jurisdiction;
9.2 Outside Australia: Notwithstanding your usual location and jurisdiction you acknowledge and agree with Future Corporation, its
Affiliates, and/or its Suppliers that the interpretation of this Agreement and any and all claims
brought by you for any breach of this Agreement, regardless of “conflict of
laws” or “private international law” principles, shall be brought under the
exclusive jurisdiction of Victorian State, and only to the extent applicable
Australian Commonwealth law;
10. TERMINATION
10.1 TERMINATION OF AGREEMENT:
Except for where expressly provided in this Agreement or in the Software License Agreement if any breach of this
Agreement or Software License by you continues for more than thirty (30) days after receipt of
written notice of such breach by Future Corporation, Future Corporation may
terminate this Agreement or Software License by written notice to you, whereupon this
Agreement and/or Software License and all
rights granted to you therein shall immediately cease.
In the event of any conflict between the terms of section 3.7.2
of the Software License Agreement
and
any express term therein requiring immediate termination for breach of the
Software License
Agreement, the express terms of such other section shall govern. You may terminate only the Software License at any time by
providing written notice to Future Corporation. In the event of
termination of the Software License Agreement by you and except for
section III.
of the Software License
Agreement you (i) acknowledge that such termination shall not entitle
you, any other or third party to any refund or credit from Future
Corporation, its Affiliates and/or its Authorized Dealers; and (ii)
you shall: (a)
obtain a
Return Authorisation number from Future Corporation; and (b) promptly
uninstall and where applicable deactivate and/or deregister the Software; and (c)
return any media and other associated materials including the hardware security
device (if applicable) to Future Corporation or the place of purchase; and
(d) obtain a receipt for such return as evidence of such termination of this
License Agreement;
11.
GENERAL PROVISIONS
11.1 EXCLUSIONS:
This Agreement specifically excludes (i) that body of
law applicable to choice of law, and (ii) the United Nations Convention on
Contracts for the International Sale of Goods and any legislation implementing
such Convention, if otherwise applicable;
11.2 TRANSLATION:
The English version of this Agreement will be the version used when
interpreting or construing this Agreement. Any translation of these Terms and
Conditions of Sale into any other languages shall be for convenience of reference only;
11.3 NO WAIVER:
The waiver of, or failure to enforce, any breach or default by
Future Corporation, its Affiliates, and/or its Authorized Dealers against you herein, shall not constitute the waiver of any
other or subsequent or continuing breach or default by Future
Corporation, its Affiliates, and/or its Suppliers against you;
11.4 SEVERABILITY:
If and to the extent any provision of this Agreement is held illegal, invalid,
uncertain, or unenforceable in whole or in part under applicable law, such
provision or such portion thereof shall be ineffective as to the jurisdiction
in which it is illegal, invalid, uncertain, or unenforceable to the extent of
its illegality, invalidity, uncertainty, or unenforceability and shall be
deemed modified to the extent necessary to conform to applicable law so as to give
the maximum effect to the intent of the parties. The illegality, invalidity,
uncertainty, or unenforceability of such provision in that jurisdiction shall
not in any way affect the legality, validity, certainty, or enforceability of
any other provision of this Agreement in any other jurisdiction;
11.5 INDEMNITY: You hereby agree that you shall indemnify and hold Future Corporation,
its Affiliates, its Suppliers and its Authorized Dealers harmless from and against any and all
claims, actions, suits, proceedings, costs, expenses, damages, and liabilities,
including legal fees (on an attorney/solicitor and own client basis) arising out
of, connected with, or resulting from (i) your or (ii) your
colleagues, employees, agents, delegates or family members and/or
any other or third party that you provide, facilitate or otherwise
allow for the (a) improper use or misuse; or (b) otherwise unlawful
or unconscionable use of the Goods described herein;
11.6
ERRORS AND OMISSIONS EXCLUDED ("E&OE"): Every effort is made by
Future Corporation to ensure the accuracy of any
technical, factual, textual or other typographical information
made available to you in relation to the Goods.
Future Corporation accepts no liability for any damage or injury
arising from any errors or omissions in such
technical, factual, textual or other typographical information
made available to you, other or any third party. No contract can be
invalidated due to printing or clerical errors. Any descriptions of
Goods are for guidance only and shall not constitute the contract
"sale by description";
11.7
COSTS, EXPENSES AND DISBURSEMENTS: All costs, expenses or
disbursements incurred by
Future Corporation in the maintenance of your account including
debt collection agency fees and legal costs arising: (i) as a
consequence of your default in observing the Terms and Conditions of Sale herein; or (ii) as a result of any
of your checks/cheques being dishonoured; or by reason of
Future Corporation requiring any further security to be
provided; shall be payable by you upon demand;
11.8 CERTAIN TERMS SHALL SURVIVE: The provisions of sections: I., II., III., 1.2, 2.1, 2.2,
2.3, 3.1, 3.1.1, 3.1.2, 3.3.3, 3.4.4, 3.5.2, 3.5.3, 3.5.4, 3.6.1.1, 3.6.2, 3.6.3,
3.6.4, 3.8.4, 3.8.5, 4.1, 4.1.1, 4.1.2, 4.2, 4.3, 5.1, 6.1, 6.2,
6.3, 7.1, 7.2, 7.3, 7.4, 9.1, 9.2, 10.1, 11.3, 11.4, 11.5, 11.6, 11.7,
11.8, 11.9, and 11.10 of this Agreement will survive the termination,
cancellation or rescission of this Agreement, howsoever caused, but this will
not imply or create any continued right to use the Goods or any part thereof
after such termination, cancellation or rescission of this Agreement;
11.9
VARIATION: Future Corporation reserves the right to unilaterally vary, or amend, these
Terms & Conditions of Sale at any time, and from time to time,
without notice. It is your responsibility to review these Terms and Conditions of Sale prior to each purchase of any
and all Goods;
11.10 ENTIRE AGREEMENT: These Terms and Conditions of Sale (i) contain
the entire agreement between you and Future Corporation with respect
to the Goods ordered by you, except for any Software License
Agreement described and/or referred to herein to which these
Terms and Conditions of Sale are appended; and (ii) for any and
all Goods purchased under this Agreement, these
Terms and Conditions of Sale shall
supersede
and replace any and all prior and/or existing oral and/or written
agreements, arrangements and/or understandings between the parties.
This Agreement shall enure to the benefit of and is binding upon the heirs,
personal representatives, successors and permitted assigns of the parties
hereto. Time is of the essence of this Agreement. All covenants and obligations
applicable to you shall be performed pursuant to this Agreement,
including all payments to be made by you hereunder, shall survive
the expiration or earlier termination of this Agreement. If more
than one party is named in, or subject to this Agreement, the
liability of each shall be joint and several. In the event of any
conflict between such Software License Agreement, the provisions of the
Software License Agreement shall govern. To avoid any doubt these
Terms and Conditions of Sale
may not be modified and/or appended by different terms, and/or expanded
by you, another or third party without the written consent and duly signed
by an executive director or C.E.O. of
Last revised .
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