ERHA - TERMS OF USE NOTICE TO USER: PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE ACCESSING/USING THE APPLICATION. BY SELECTING THE “I AGREE” BUTTON, ACCESSING OR USING THE APPLICATION, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS OF USE, UNDERSTAND THEM AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF USE, CLICK THE “I DO NOT AGREE” BUTTON, AND DO NOT ACCESS OR USE THE APPLICATION IN ANY WAY. THE APPLICATION MUST NOT BE RELIED ON AS THE BASIS TO SOLVE A PROBLEM OR TO IMPLEMENT A DESIGN, PARTICULARLY WHERE AN INCORRECT SOLUTION COULD RESULT IN INJURY OR LOSS TO PERSON OR PROPERTY. IF THE USER USES THE APPLICATION IN SUCH A MANNER IT IS AT THE USER’S OWN RISK AND TO THE EXTENT PERMITTED BY LAW THE LICENSOR EXPLICITLY DISCLAIMS ALL LIABILITY FOR SUCH USE (INCLUDING LIABILITY FOR NEGLIGENCE). This terms of use/licence (the “Licence”) is made between you (the “User”) and the University of Newcastle ABN 15 736 576 735 of University Drive, Callaghan NSW 2308 Australia (the “Licensor”). 1. Definitions. Terms beginning with capital letters have the following meanings. “Authorised Purpose” means the use of the Application as a qualitative rockfall hazard assessment methodology to assist with the preliminary identification of hazardous areas that will require detailed investigation (i.e., as a first step in a more comprehensive and rigorous assessment process) but excludes, and should not be used for, the detailed design of safety procedures and mitigation measures. “Application” means the Evolving Rockfall Hazard Assessment (“ERHA”) application, mapping, tools, methodologies, reports and any application, software or code related or associated with ERHA and includes any Upgrades. “Affiliates” means, in the case of a party, its related bodies corporate, officers, employees, contractors, students, agents and licensors, and in the case of the Licensor also includes its controlled entities. “Documentation” means the technical, operating and user materials (if any) supplied by the Licensor to the User with the Application, including any documentation provided with any Upgrades. “Term” means an indefinite period unless this Licence is terminated. “Upgrades” means any modifications, enhancements, improvements or revisions to the Application provided to the User by the Licensor from time to time. 2. Licence. Upon entry into this Licence, the Licensor grants to the User, during the Term, a limited, non-exclusive, non-transferable licence to access and use the Application on hardware under the control of the User for the Authorised Purpose. The Licensor may in its sole discretion Upgrade the Application from time to time provided that Upgrades are subject to the terms and conditions of this Licence. The User must not sublicence, assign, transfer or otherwise dispose of any of its rights or obligations under this Licence without the prior written consent of the Licensor. The Licensor may charge an administrative fee in connection with any permitted assignment. 3. Support. Use of the Application by the User is unsupported. 4. Use. The User must use the Application and Documentation only for the Authorised Purpose and in a manner that complies with this Licence and all applicable laws in the jurisdictions in which the Application is used. The User must supervise and control the use of the Application in accordance with this Licence. Restrictions on Use. The User must not itself or through any Affiliate or other third party: (a) sell, lease, license, sub-license, rent, loan, timeshare, encumber or otherwise transfer any part of the Application or Documentation to any other person without the prior written consent of the Licensor; (b) decompile, disassemble, reverse engineer, attempt to derive the source code for, modify, adapt, translate or copy the Application or Documentation, in whole or in part; (c) provide, disclose, divulge, make available, distribute or sub-license to any third party or permit use of by any third party any part of the Application or Documentation (including by directly or indirectly providing access to the Application or Documentation via any Internet-based application or any other form of file sharing mechanism) without the prior written consent of the Licensor; (d) write or develop any software or create derivative works based upon the Application, Documentation or other confidential information of the Licensor; (e) disclose the User’s login, personal password or licence to any person who is not a permitted user under this Licence or allow them to be used for any purpose except for the Authorised Purpose; (f) remove, tamper with, seek to override or otherwise interfere with any security or technological protection measure forming part of the Application; or (g) remove, obliterate, or obscure from view any copyright, trade mark or confidentiality notice or legend appearing on or within the Application. No Warranty. The Licensor does not warrant the Application and Documentation (or use thereof): (a) are free from defects, error free, or that use will be uninterrupted; (b) will meet the User’s requirements or provide any specific functionality including for the Authorised Purpose; (c) will operate in combination with other programs of the User’s choice; or (d) complies with, or will discharge obligations under, any laws including, but not limited to, the Work Health and Safety Act 2011 (NSW) or the Work Health and Safety (Mines) Act 2013 (NSW) (and equivalent acts in other jurisdictions where the Application may be used) and the User must not rely upon the Application or Documentation to discharge any obligations under any law. TO THE EXTENT PERMITTED BY LAW, THE LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE APPLICATION AND THE DOCUMENTATION. 5. Acknowledgements. The User acknowledges and agrees that: it is solely responsible for obtaining, installing, operating and maintaining all hardware, other equipment and third party software required for use of the Application; and that all computer functionality, operating system, network services, hardware maintenance and daily data backup is the responsibility of the User. The Licensor has no responsibility for data loss arising as a result of use of the Application or interaction of the Application with any third party software or system. 6. Ownership and Intellectual Property. The User acknowledges that all intellectual property rights (including copyright and neighbouring rights, future copyright, invention, patents, registered and unregistered trade marks, registered and unregistered designs and all other rights arising from intellectual activity) in and to the Application and Documentation remain the property of Licensor. The User must not take any action, and must not assist any person to take any action, that may jeopardise, limit, challenge or interfere with the Licensor’s ownership of or rights with respect to the Application, the Documentation or its intellectual property therein. The User must treat all information concerning the Application and Documentation as confidential and proprietary information of the Licensor (other than information that is lawfully in the public domain at the time of disclosure) and must not reproduce, use or disclose to any person that information (other than those of the User’s employees who must have such information for the performance for their duties) unless with the Licensor’s prior written consent. The User must not register any security interest over this Licence or the Application within the meaning of the Personal Property Securities Act 2009 (Cth). 7. Terms Implied by Law. Where any law or statute implies in this Licence any term, condition or warranty, and where liability under any such term, condition or warranty may be lawfully excluded, the Licensor’s liability is excluded to the maximum extent permitted by law. INSOFAR AS LIABILITY UNDER OR PURSUANT TO ANY STATUTE OR LAW MAY NOT BE EXCLUDED, THE LICENSOR’S ENTIRE LIABILITY AND THE USER’S SOLE REMEDY FOR ANY BREACH BY THE LICENSOR OF THE TERMS AND CONDITIONS WHICH CANNOT BE EXCLUDED BY STATUTE OR LAW IS LIMITED TO REPAIR OR REPLACEMENT OF THE APPLICATION. Notwithstanding the above, the Licensor will have no obligations to make corrections, repairs or replacements of the Application where any error, failure or defect, results in whole or in part, from: any failure by the User to comply with the Documentation or any guidelines or instructions issued by the Licensor; any fault, defect, omission or error in any data, software or equipment not supplied by Licensor; misuse, theft, vandalism, fire, water or other similar cause outside the Licensor’s control; any failure by the User to install or use the Application properly or the failure to install/use any Upgrade offered by the Licensor; any modification, alteration, or addition made to the Application by persons other than the Licensor or an authorised representative of the Licensor; or use of the Application with any software or equipment not specifically approved or recommended by Licensor or in a manner or for a purpose other than the Authorised Purpose. 8. Limitation of Liability and Damages. The Licensor and its Affiliates will in no event be liable to the User for any consequential, incidental, indirect or special damages, damages for loss of business profits, business interruption, loss of data and the like, whether foreseeable or not, arising out of the use of or inability to use the Application or any Documentation, regardless of the basis of such loss or damage and whether the Licensor or any of its Affiliates may have been aware of the possibility of such loss or damage. To the extent permitted by law, the User agrees that the Licensor’s and its Affiliates’ liability for any direct damages arising from any cause whatsoever, regardless of the form of action, will be limited to $1.00 in the aggregate. This clause will not apply to: (a) claims for death or personal injury; or. (b) the exclusion of indirect or consequential loss or damages, where the law of the state of New South Wales or of the Commonwealth applicable to the Licensor prohibits such an exclusion. 9. Indemnity. The User releases and indemnifies the Licensor and its Affiliates from and against all actions, claims, proceedings and demands (including those brought by third parties) which may be brought against it or them, whether on their own or jointly with the User and whether at common law, in equity, pursuant to statute or otherwise, in respect of any loss, death, injury, illness or damage (whether personal or property, and whether direct or consequential, including consequential financial loss) arising out of a breach of the User’s obligations contained in this Licence; any negligent or other wrongful act or omission by the User; the use of the Application by or on behalf of the User; or any personal injury, death or illness of any person caused by any act or omission of the User, and from and against all damages, reasonable costs and expenses incurred in defending, satisfying or settling any such claim, proceeding or demand. 10. Termination. The User may terminate this Licence by discontinuing use of the Application, removing all copies from its equipment or equipment under its control and (if applicable) returning the Application and Documentation and all copies to Licensor. The Licensor may terminate this Licence immediately by written notice to the User for any reason, or no reason, in which case the User must: (a) discontinue use of the Application and remove all copies of the Application from its equipment or equipment under its control; and (b) at the Licensor’s option, return to the Licensor or destroy and certify the destruction of all copies of the Application, confidential information of the Licensor and Documentation in the possession or under the control of the User. Termination of this Licence does not affect the rights and obligations of either party arising prior to termination. The provisions of clauses 6 to 12 (inclusive) will survive termination of this Licence. 11. Marketing / Research. The User agrees that the Licensor may use any information (including personal information) provided by the User or its Affiliates during the signup / login or otherwise provided to the Licensor for its own purposes including research and marketing (which may include the Licensor contacting the User or its Affiliates to discuss functionality and user experience). 12. General. This Licence is subject to the laws of New South Wales and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales. If any provision of this Licence is held invalid, unenforceable or illegal for any reason, this Licence shall remain otherwise in full force apart from such provision which will be deemed severed. Any delay or failure by the Licensor in enforcing its rights under this Licence is not to be construed as a waiver of those rights. The United Nations Convention on Contracts for the International Sale of Goods will not apply in any way to the Application or this Licence.
I confirm that I have read and understand the above disclaimer