End User Licence Agreement
The licence agreement for our software.
A Future Corporation Pty Ltd
End User Licence Agreement
I. IMPORTANT: THIS IS A LICENSE, NOT A SALE. PLEASE READ THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE (HEREAFTER “AGREEMENT”). BY SELECTING THE “I ACCEPT THE AGREEMENT” OR “AGREE” OPTION(S), OR EQUIVALENT WORDING IN ANOTHER LANGUAGE, AND CLICKING “NEXT”, “CONTINUE” OR AN EQUIVALENT BUTTON OR CONTROL, INCLUDING EQUIVALENT WORDING IN ANOTHER LANGUAGE, OR OTHERWISE INDICATING ASSENT ELECTRONICALLY, OR INSTALLING THE SOFTWARE, YOU ACCEPT AND AGREE TO BE BOUND BY AND COMPLY WITH ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT HAVE THE LEGAL CAPACITY TO ENTER INTO THIS AGREEMENT, THE SOFTWARE MAY NOT BE INSTALLED OR USED UNLESS A PARENT, GUARDIAN OR OTHER PERSON LEGALLY AUTHORISED TO ACT ON YOUR BEHALF HAS ACCEPTED THIS AGREEMENT ON YOUR BEHALF, TO THE EXTENT PERMITTED BY APPLICABLE LAW. FURTHER YOU ACKNOWLEDGE AND AGREE WITH A FUTURE CORPORATION PTY LTD (HEREAFTER “FC”), AS THE LICENSOR OF THE SOFTWARE (SEE SECTION 1.3), THAT THIS AGREEMENT IS A LEGALLY BINDING AGREEMENT THAT IS ENFORCEABLE AGAINST YOU AND/OR THE LEGAL ENTITY THAT OBTAINED THE SOFTWARE AND, ON WHOSE BEHALF, IT IS USED (REFERRED COLLECTIVELY HEREIN AS “YOU” OR “YOUR”). IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS IN ADDENDUM HEREIN APPLICABLE TO YOU AS SET FORTH BELOW, SELECT “I DO NOT ACCEPT THE AGREEMENT” OR CLICK THE “CANCEL” BUTTON OR OTHERWISE INDICATE YOUR REFUSAL, OR DO NOT INSTALL THE PRODUCT AND THE INSTALLATION PROCESS WILL NOT CONTINUE. YOU MAY RETURN THE SOFTWARE TO THE PLACE OF PURCHASE FOR A REFUND OF THE AMOUNT PAID FOR THE SOFTWARE LICENSE, LESS THE DEDUCTIONS EXPRESSLY PERMITTED BELOW, AS SET OUT IN III. BELOW.
II. DOWNLOADS: BEFORE DOWNLOADING THE SOFTWARE, CAREFULLY READ THE TERMS AND CONDITIONS OF SALE DISCLOSED BY FC OR THE AUTHORISED SELLER AT OR BEFORE THE TIME OF PURCHASE (FOR FC’S TERMS AND CONDITIONS OF SALE, SEE SECTION 9 BELOW). BY DOWNLOADING THE SOFTWARE: (I) YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL CAPACITY AND AUTHORITY REQUIRED UNDER THE LAWS APPLICABLE TO YOU TO ENTER INTO THIS AGREEMENT (AND, IF YOU DO NOT HAVE THAT CAPACITY, THE SOFTWARE MAY BE OBTAINED, INSTALLED OR USED ONLY AFTER A PARENT, GUARDIAN OR OTHER PERSON LEGALLY AUTHORISED TO ACT ON YOUR BEHALF HAS ACCEPTED THIS AGREEMENT ON YOUR BEHALF, AND UNDER THAT PERSON’S SUPERVISION WHERE REQUIRED BY APPLICABLE LAW) AND THAT YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT; AND (II) YOU AGREE THAT BY INSTALLING THE SOFTWARE THIS WILL BE A BINDING ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; AND, (III) YOU AGREE TO BE RESPONSIBLE FOR ALL YOUR INTERNET SERVICE PROVIDER FEES, TELECOMMUNICATIONS AND ALL OTHER CHARGES THAT MAY APPLY AS A RESULT OF YOUR DOWNLOAD OF THE SOFTWARE; AND, (IV) YOU REPRESENT AND WARRANT TO FC, IF YOU ARE DOWNLOADING AND ACCEPTING THE SOFTWARE ON BEHALF OF ANY OTHER LEGAL ENTITY, THAT YOU HAVE FULL LEGAL AUTHORITY TO BIND SUCH ENTITY; AND, (V) ALL RISK OF DAMAGE TO THE SOFTWARE DURING TRANSMISSION AND DOWNLOAD IS ASSUMED BY YOU. IF YOU DO NOT AGREE OR COMPLY WITH THE ABOVE TERMS AND CONDITIONS, DO NOT DOWNLOAD, OR INSTALL THE SOFTWARE.
III. FOURTEEN (14) DAY MONEY BACK GUARANTEE: If you are the first user of the Software and are not satisfied with it, excluding: Beta, Demo, Demonstration, Instalment, OEM, SDK, Club, Subscription or Upgrade Software as set forth under their respective sections below, you may return it at any time during the fourteen (14) day period following the date of purchase subject to the following conditions: (i) you must uninstall and where applicable deactivate and/or deregister the Software; and, (ii) click Refund or fill in a Return Advice form and submit it at the Software’s website or Customer Portal (online cart); and (iii) return any media and other associated materials including the hardware security device (if applicable) with proof of purchase and the Return Advice (RA) number to the person from whom the Software License was purchased, or as otherwise reasonably directed under the following sentence, to obtain a refund of the money you paid for the Software (less all shipping, handling, applicable taxes and any other non-recoverable costs including but not limited to any other or third party fees and/or charges howsoever incurred, to the extent permitted by applicable law). Where the Software License was purchased directly from FC, this voluntary fourteen (14) day money-back guarantee is given by, and any refund under it is payable by, FC. Where the Software License was purchased from an Authorised Dealer or other authorised seller, this voluntary guarantee applies only where that seller expressly offered it in connection with the transaction, and any refund under it is payable by that seller, unless FC expressly agrees to administer the refund on that seller’s behalf. Nothing in this paragraph makes FC responsible for refunding any amount paid to an independent seller, except to the extent required by applicable law. No return will be accepted by FC, its Authorised Parties or the authorised seller under this voluntary fourteen (14) day money-back guarantee after the fourteen (14) day period has expired. Nothing in this paragraph limits any right or remedy available to you under applicable law, including the Australian Consumer Law.
THIS LICENSE IS GRANTED BY FC AS SET OUT IN SECTION 1.3. THIS LICENSE INCLUDES THE FOLLOWING
LANGUAGE VERSIONS
This Agreement is published in English. Where a translated language version is published by or on behalf of FC, Sections 4.2 and 4.2.1 determine which language text governs in the event of any inconsistency, ambiguity, omission, discrepancy or difference in interpretation. A translation does not create, expand, restrict or otherwise alter any right or obligation beyond the corresponding English text, except to the extent required by mandatory applicable law.
PART I
1. TERMS AND DEFINITIONS
2. SOFTWARE LICENSE
3. GENERAL PROVISIONS
4. GOVERNING LAW
5. TECHNICAL SUPPORT
6. INSTALMENT AND SUBSCRIPTION SOFTWARE
PART II
7.1 ACADEMIC, EDUCATION STUDENT AND TEACHER ADDENDUM TO THE LICENSE
7.2 BETA SOFTWARE ADDENDUM TO THE LICENSE
7.3 DEMONSTRATION SOFTWARE ADDENDUM TO THE LICENSE
7.4 OEM EDITION ADDENDUM TO THE LICENSE
7.5 SOFTWARE DEVELOPMENT KIT ADDENDUM TO THE LICENSE
7.6 DISTRIBUTION CHANNELS ADDENDUM TO THE LICENSE
7.7 AUTHORISED RESELLER EDITION ADDENDUM TO THE LICENSE
PART III
8. COUNTRY SPECIFIC TERMS IN ADDENDUM TO THIS LICENSE
PART IV
9. LEGAL DOCUMENTS, CONTACT DETAILS & SUPPORT
PART I
1. TERMS AND DEFINITIONS
1.1 INTERPRETATION
1.1.1 Words importing the singular number shall include the plural and vice versa; and,
1.1.2 Words importing any 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 agencies, trusts and unincorporated associations, businesses, organisations, 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 Dictionary current at the date this Agreement is accepted by you, including any words using United States spelling conventions; 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) are used in this Agreement for convenience of reference only and shall not affect the interpretation of this Agreement; and,
1.1.6 For the purposes of section 1.1.5 (above), words contained within inverted commas (“”) or in parentheses () do not form part of a Numbered Heading; and,
1.1.7 To avoid any doubt, all words other than Numbered Headings are included in and form part of this Agreement.
1.1.8 References in this Agreement to any statute, regulation or other legislation include that legislation as amended, re-enacted or replaced from time to time, and any subordinate legislation made under it.
1.2 IN THIS AGREEMENT UNLESS EXPRESSLY STATED OTHERWISE THE FOLLOWING WORDS, GROUPING OF WORDS OR PHRASES SHALL HAVE THE FOLLOWING MEANING:
“Account” and “Account Holder” means your unique registration with FC, established or administered by FC or by an authorised service provider acting on its behalf within a Customer Portal, through which your details and the Software products licensed from FC may be securely stored and managed under the applicable Terms and Conditions of Sale and FC’s Privacy Policy (the “Privacy Policy”) (see Section 9 below).
“Activation Number” means the unique number used to Activate the Software to operate in a restricted or unrestricted state.
“Antivirus software” means a computer program that attempts to identify, neutralise, 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” means Apple Inc., headquartered in Cupertino, California, United States.
“Apple computer” means an Apple-branded desktop or notebook computer running a version of MacOS expressly supported for the Software by FC. To avoid any doubt, it does not include an Apple Watch, iPad, iPhone or other mobile or wearable device, unless that device is expressly supported for the Software by FC (see “MacOS” below).
“ARMS” means the Automatic Registration Mark System, being a feature of the Software that adds, recognises, and aligns to printed registration marks on a Substrate to enable accurate cutting, routing, engraving, or other contour operations referenced to a printed image.
“Authorised Dealer” means an individual or a business (incorporated or otherwise) that has been approved and authorised by FC under a separate agreement to carry (store or stock) the Software to promote, support and sell it to end-users.
“Authorised Channel Participant” means an Authorised Dealer, manufacturer, OEM partner, distributor, reseller or other person or entity expressly authorised in writing by FC, as identified in the relevant written authorisation, to distribute, supply, promote or sell Software Licenses, or to provide specified first-line support in connection with the applicable edition of the Software. An Authorised Channel Participant is authorised only for the edition and functions identified in, and within the scope of, FC’s written authorisation. An Authorised Channel Participant may be the seller of a Software License or associated hardware where it contracts with the purchaser for that sale, but does not merely by performing its authorised role become the Licensor, owner of the Software or its Intellectual Property, warrantor or general agent.
“Authorised Party” means an Authorised Channel Participant or Authorised Service Provider acting within the scope of a written authorisation issued by FC, as identified in the relevant provision or written authorisation. An Authorised Party is an Authorised Party only under FC’s written authorisation and only while acting within the scope of that authorisation. A person or entity does not merely by being an Authorised Party become the Licensor, owner of the Software or its Intellectual Property, warrantor, seller or general agent. Whether an Authorised Party is the seller in a particular transaction depends upon the actual transaction and applicable law.
“Authorised Service Provider” means an independent contractor, processor, platform operator, technical service provider or other person or entity expressly authorised by FC, as identified in the relevant provision or written authorisation, to perform specified operational, technical, licensing-administration, Validation, Account, Communications, data-processing, warranty-administration or support functions. An Authorised Service Provider is authorised only for the functions identified in FC’s written authorisation. It does not merely by performing those functions become the Licensor, seller, owner of the Software or its Intellectual Property, warrantor or contractual provider of Technical Support, and has no authority to bind FC except to the extent expressly authorised in writing.
“Beta” means a version (complete or incomplete) of the 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, utilising any means, work-around or bypass and/or eliminate (successfully or otherwise) the Software’s built-in (programmed) mechanisms that are intended to prevent the Software’s unlicensed, unauthorised or unlawful use; and/or (ii) 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, unauthorised or unlawful use.
“Club Membership” means Subscription Software for the purposes of this Agreement (see below).
“CNC Machine” means an electronic device that uses a rotary bit, blade or tool, a laser, a plasma, a water jet or similar, to follow a tool path via numerical control to cut, gouge or score a wide variety of substrates and/or materials and does not include every make and model of CNC machine manufactured or currently available, and to avoid any doubt FC does not warrant support for any specific make or model of CNC machine;
“Compatible computer” means either an Apple computer or an IBM compatible computer for the purposes of this Agreement and where the Software specifically states as part of its published specification on its website that it is compatible with (a) an Apple computer only, or (b) an IBM compatible computer only, or (c) compatible with both an Apple and an IBM compatible computer.
“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 plugin, snap-in or module.
“Computer” 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 and is (a) compliant and (b) compatible with the Software Protection Measures and computer identification mechanism as set out herein.
“Computer ID” or “Install Code” means the unique number that identifies each computer and is required to Activate or Register the Software.
“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. To avoid any doubt Corporate Logos do not mean and are not Content Files.
“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.
“Credit-Card” means a payment device lawfully issued to the bearer by a major credit card company including all debit cards that is accepted by FC, an authorised seller or an authorised payment processor.
“Customer Number” means Product Serial Number or Software Product Number for the purposes of this Agreement (see below).
“Customer Portal” means a private and secure gateway operated by or on behalf of FC, through which an Account Holder may access and manage information provided to FC, Software downloads, licensing functions and other services made available over the Internet through a web browser and/or the Software.
“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 5:00 pm Melbourne, Victoria, Australia time (whether AEST or AEDT as applicable), 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.
“Direct Channel” means the authorised distribution of the Software by FC directly to an end user, in any country or territory.
“Documentation” means any accompanying printed materials, user guides and help content supplied or identified by FC for the licensed version of the Software, and their online or electronic equivalents.
“Engraver” or “Engraving Machine” means an electronic device that uses a rotary bit, stylus, diamond drag, fibre laser, CO2 laser, or similar tool to inscribe, etch, mark, or remove material from the surface of a Substrate and does not include every make and model of engraver manufactured or currently available, and to avoid any doubt FC does not warrant support for any specific make or model of engraver, other than OEM devices it expressly supports for the applicable edition of the Software.
“Expert” means an individual or individuals who comply with the appropriate experience or qualifications 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.
“FC” means A Future Corporation Pty Ltd ACN 078 538 002 / ABN 55 078 538 002.
“First user” means the individual or legal entity that first obtained the Software License from FC, whether directly or through an Authorised Channel Participant or other channel authorised by FC.
“Hard disc drive” or “HDD” (Internal or External) means any disc or media regardless of kind or type that can have the Software copied or installed onto it for use in or with a computer or device.
“Hardware Serial Number” means a unique number affixed to a device sold with OEM Software that may be used to identify that device and any rights to the Software.
“Help” means the printed and/or electronic documentation provided 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 that can run Microsoft Windows but excludes all Apple and Chromebook computers (see Windows below for its meaning).
“In writing” from FC 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 FC that is duly authorised to represent it for such purposes.
“Instalment Software” means a payment method that allows you to pay for a Software License over a pre-set price and number of months so that the License is fully paid when the final payment is made and cleared, unless cancelled (i) by the Licensee, or (ii) for non-payment by the Licensee.
“Internal Network” means a private or proprietary network resource (Intranet) accessible only by management, employees and individual contractors or 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 organisations or groups.
“Internet” means the global computer network commonly referred to as the world wide web.
“Laser Machine” or “Laser Cutter” means an electronic device that uses a CO2, fibre, diode, ultraviolet, or similar laser to cut, mark, engrave, or otherwise process a Substrate and does not include every make and model of laser machine manufactured or currently available, and to avoid any doubt FC does not warrant support for any specific make or model of laser machine, other than OEM devices it expressly supports for the applicable edition of the Software.
“License Management Regime” means the system employed by FC and the Software to manage the Software’s Licensing on a computer.
“Licensee” means the User to whom FC grants the applicable Software License under this Agreement.
“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 and, where the context requires, the category of License granted (including without limitation Perpetual, Instalment, Subscription, Trial, Evaluation, Demonstration, OEM, Academic, Beta or SDK).
“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.
“MacOS” means Apple’s computer operating system software, namely: MacOS from 10.15 Catalina through to and including the then-current release of macOS supported by FC, as specified at the Software’s website from time to time, 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 MacOS, OS X, or Mac OS X and to avoid any doubt does not include any version of macOS not expressly listed as supported at the Software’s website.
“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, headquartered in Redmond, Washington, 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 the numbered clause and section headings used in this Agreement.
“OEM Channel” means the authorised distribution of the Software by or through a manufacturer, OEM partner, distributor, dealer or other channel authorised by FC, including where the Software is bundled with hardware manufactured in or exported from any country and supplied to end users in any country or territory authorised by FC.
“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 an interface between a computer user and computer hardware. An operating system is a software which performs all the basic tasks like file management, memory management, process management, handling input and output, and controlling peripheral devices such as disk drives and printers.
“Opt-Out” means an action by an Account Holder withdrawing consent to receive any specific or all optional Communications from FC, or withdrawing from optional Performance Reporting, to the extent permitted by the applicable Privacy Policy and applicable law.
“Original Equipment Manufacturer” or “OEM” means, where the context refers to an entity, the manufacturer of the third-party equipment or hardware with which the Software is bundled and, where the context refers to software, a variation of the Software that is exclusively included (bundled) and licensed by FC 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 proprietary or generic format that has been created and saved and/or exported by the Software.
“Output Hardware” means collectively any CNC Machine, Engraver, Laser Machine, Plotter, Printer, Router, Vinyl Cutter, or similar electronic device for which the Software is capable of producing instructions, Tool Paths, or output files, whether or not FC expressly supports such device.
“Patch” means Update for the purposes of this Agreement (see below).
“Permitted Number” means the number of compatible Computers or Copies on or in respect of which the applicable Software License permits the Software to be installed or used under this Agreement, being up to two (2) compatible Computers for a License governed by Section 2.1.2 unless a different number is expressly specified for the applicable License Type, edition of the Software or a valid Volume License granted by FC.
“Performance Reporting” or “Performance Report” means the secure collection, storage and periodic transmission to FC, or to an authorised service provider acting on its behalf, of statistical information produced by the Software when in use; such information may be associated with a License, device or Account identifier and is handled in accordance with the applicable Privacy Policy and applicable law.
“Perpetual”, “Perpetual License” or “Pay upfront (no more to pay)” means a License to use the version of the Software you have licensed that continues for so long as you comply with this Agreement, with no further license fee payable. FC provides updates, Technical Support and assurances of compatibility for that version only during the Supported Period. The “Supported Period” is the period of five (5) years from the date the licensed version is first released for licensing to the public, after which that version is unsupported. After the Supported Period the License to use the licensed version continues subject to this Agreement, but that version is supplied on an “as is”, unsupported basis and its continued technical operation is not guaranteed: FC does not provide updates or Technical Support, and does not warrant that the version will install on, operate on, or be compatible with, any operating system, hardware platform, machine driver, API, security framework or other technology released or changed after the Supported Period. To avoid any doubt, “Perpetual” refers to the License to use the version you have licensed and does not mean FC will support, update or ensure the ongoing compatibility of that version indefinitely. Notwithstanding Sections 2.6 and 5.1, for a Perpetual License FC will make reasonable Technical Support and maintenance Updates available during the Supported Period, subject to the other limitations in this Agreement; the Supported Period does not require FC to make the Software compatible with any operating system, hardware platform, machine, driver, API or other technology released or modified after the licensed version was first released, unless FC expressly identifies that technology as supported. The end of Product Life for a version does not shorten the Supported Period of a Perpetual License already granted for that version.
“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 and does not include every make and model of plotter or vinyl cutter manufactured or currently available, and to avoid any doubt FC does not warrant support for any specific make or model of plotter or vinyl cutter, other than OEM devices it expressly supports for the applicable edition of the Software.
“Plugin” or “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.
“PRC” means the People’s Republic of China, excluding Hong Kong SAR, Macau SAR and Taiwan unless expressly stated otherwise.
“Printer” or “Large/Wide Format Printer” means an electronic device that uses any process/technology to print onto a substrate and does not include every make and model of printer or large/wide format printer manufactured or currently available, and to avoid any doubt FC does not warrant support for any specific make or model of printer or large/wide format printer, other than OEM devices it expressly supports for the applicable edition of the Software.
“Product” means the version of the Software licensed by FC under the terms of this Agreement.
“Product Life” means the period 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), or such earlier date as FC determines at its absolute discretion to discontinue, withdraw or cease supporting that version, whichever occurs first. FC does not warrant or represent that any version of the Software will remain in Product Life for any minimum period.
“Product Serial Number” or “PSN” means the unique and identifying number for each Software product which incorporates a PSN and does not relate to any Hardware product or item.
“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 (tools and features) each variation or level of the Software includes as listed on the Software’s website at the date of your purchase and it is the purchaser’s sole responsibility to make inquiries as to which level is suitable for its needs.
“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 mean (i) a guarantee, or (ii) a warranty, or (iii) a 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).
“Router” or “CNC Router” means an electronic device that uses a rotating bit or cutting tool driven by numerical control to cut, carve, profile, pocket, drill, or otherwise machine a Substrate and does not include every make and model of router manufactured or currently available, and to avoid any doubt FC does not warrant support for any specific make or model of router, other than OEM devices it expressly supports for the applicable edition of the Software.
“RRP” means MSRP for the purposes of this Agreement (see above).
“Sample File” means a file in a proprietary or generic format that has been created and saved and/or exported by or on behalf of FC 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 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 FC that assists a software programmer to create components, file format filters for the 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 plugins, 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 software files of FC or of third parties 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.
“Software License Number” or “SLN” means the unique and identifying number for each Software product which incorporates a SLN and does not relate to any Hardware product or item.
“Software Product Number” or “SPN” means the unique and identifying number for each Software product which incorporates a SPN and does not relate to any Hardware product or item.
“Software Protection Measures” or “SPM” means various processes (schemas) to protect the Software from unauthorised use or misuse. These processes include but are not limited to: Activation, Authorisation, Licensing, and/or Registration in order for the Software to become and remain fully functional on your computer (hereafter “SPM”) and except as expressly limited by applicable law in your jurisdiction, you agree with FC that: (i) if the Software requires mandatory SPM, your License and ability to use the Software is contingent upon your providing the Software access to the Internet and/or other telecommunications services as directed by FC, or by an authorised service provider acting on its behalf, and successfully completing any SPM process and providing FC, or an authorised service provider acting on its behalf, with accurate information as required by this process, and; (ii) you acknowledge and agree that it is your sole responsibility to at all times keep your hardware serial number(s), PSN, SLN or SPN safe from partial or complete loss, and/or unauthorised use or misuse by another or third party and that FC, its Authorised Parties and any authorised service provider acting on its behalf shall not be obliged or held responsible for maintaining and/or recording such numbers on your, another or third party’s behalf or liable for their complete or partial loss howsoever caused, and that an authorised service provider assumes no independent obligation to you merely by performing the SPM process.
“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.
“Subscription Software” means a payment method for a Software License on a recurring monthly, annual or other agreed periodic basis (including any fixed-term or prepaid subscription) until it expires or is cancelled (i) by the Licensee, or (ii) for non-payment by the Licensee.
“Substrate” or “Material” means any physical material upon or through which Output Hardware operates, including but not limited to vinyl, paper, card, board, acrylic, plastic, wood, MDF, metal, leather, fabric, foam, stone, glass, and composite materials, regardless of whether such material is safe, suitable, or compatible with a given operation.
“Supervisor” and “Manager” means an employee of FC who has a senior position within that entity and has been authorised by the C.E.O., a director, a vice president, or senior executive of FC to represent it for the tasks expressly set forth in this Agreement.
“Supplier” means any individual, business, corporation or other entity that has provided or continues to provide FC with goods, Intellectual Property or services to assist FC in designing, developing, creating, producing, licensing, operating, supporting or 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 FC, undertaken by FC or by an Authorised Service Provider acting on its behalf via email, user forums, knowledgebase, online ticketing, facsimile, telephone and/or by any other appropriate means; and does not mean (i) training, or (ii) the consulting or consultation of the applicability, suitability or otherwise of the Software, or any explanation of how to use the Software or any other Software or Hardware product, or (iii) how it is supposed to, or does function except to the extent to remedy a technical matter and does not include assistance, advice or support of any third 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.
“Tool Path” means the geometric path, sequence of instructions, machine code (including but not limited to G-code, HPGL, and proprietary device formats), or similar output produced by the Software for execution by Output Hardware, that defines the movement, speed, depth, power, and other operational parameters of such hardware.
“Update” means a separate component of Software designed to update, modify, repair, remove or fix problems identified 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 and 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, which is referred to herein as “you” and/or “your”.
“Valid Credit Card” means credit card for the purposes of this Agreement (see above).
“Validly Received Order” means an order to purchase a Software License via an online cart or service where the information provided by the purchaser and the payment method used is accepted prima facie as genuine and subsequently processed and paid by a third party payment processor, including but not limited to: AliPay, American Express, Cirrus, Delta, Diners Club, Discover Card, JCB, Maestro, MasterCard, Paddle, PayPal, Stripe, Visa, Union Pay, WeChat.
“Version” means the numeric or alphanumeric value given to the Software as each subsequent edition is released for licensing by FC at its discretion from time to time.
“Volume License” means either (i) a Site License granted in single licenses, or (ii) a License Pack that may be granted in multiples of five (5) licenses, or (iii) License Seats that may be granted in multiples of one hundred (100) licenses.
“Windows” means Microsoft’s computer operating system software, namely: the then-current release of Windows supported by FC, as specified at the Software’s website from time to time, in all correctly installed (loaded) variants and service packs for IBM compatible computers, and to avoid any doubt does not include any version of Windows not expressly listed as supported at the Software’s website.
“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 if 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.
1.3 LICENSOR: FC is the Licensor under this Agreement and grants the Software License to the Licensee, whether the Software is supplied directly by FC or through an Authorised Channel Participant. Nothing in this Section determines ownership of Intellectual Property, which is governed by Sections 2.2 and 2.2.1.
2. SOFTWARE LICENSE
2.1 SOFTWARE LICENSE: THE SOFTWARE IS LICENSED, NOT SOLD. YOU ACKNOWLEDGE AND AGREE WITH FC THAT THIS LICENSE AGREEMENT ONLY GIVES YOU SOME RIGHTS TO USE THE SOFTWARE AND MAY BE LIMITED BY TIME AS SET OUT IN THE SOFTWARE’S DOCUMENTATION AND/OR MATERIALS. FC, AND ITS SUPPLIERS TO THE EXTENT OF THEIR RESPECTIVE RIGHTS, RESERVE ALL OTHER RIGHTS. NOTWITHSTANDING THIS LIMITATION AND UNLESS APPLICABLE LAW GIVES YOU MORE RIGHTS, YOU MAY ONLY USE THE SOFTWARE AS EXPRESSLY PERMITTED IN THIS AGREEMENT. YOU FURTHER ACKNOWLEDGE THAT WHERE YOU HAVE OBTAINED A “PERPETUAL” OR “PERPETUAL LICENSE”, SUCH LICENSE IS A PERPETUAL LICENSE TO USE THE LICENSED VERSION OF THE SOFTWARE THAT FC SUPPORTS FOR THE SUPPORTED PERIOD OF FIVE (5) YEARS AND THAT IS THEREAFTER PROVIDED ON AN “AS IS”, UNSUPPORTED BASIS, ALL AS DEFINED IN THIS AGREEMENT AND ANY MARKETING, PRODUCT DESCRIPTION, RESELLER MATERIAL OR OTHER COMMUNICATION USING THE WORD “PERPETUAL” IS TO BE READ SUBJECT TO AND CONSISTENTLY WITH THAT DEFINITION. NO MARKETING MATERIAL, RESELLER STATEMENT OR PRODUCT DESCRIPTION CAN VARY THIS DEFINITION.
2.1.1 GRANT OF LICENSE: IF YOU VALIDLY OBTAINED THE SOFTWARE FROM FC OR THROUGH A CHANNEL AUTHORISED BY FC, AND AS LONG AS YOU COMPLY WITH THE TERMS OF THIS LICENSE AGREEMENT, FC GRANTS YOU A NONEXCLUSIVE LICENSE TO USE THE SOFTWARE IN THE MANNER AND FOR THE PURPOSES DESCRIBED IN THE SOFTWARE’S DOCUMENTATION AND/OR WEBSITE AND IN THIS LICENSE AGREEMENT AS FURTHER SET FORTH BELOW.
2.1.2 GENERAL USE: You may install and use one (1) Copy of the Software on each of up to two (2) compatible Computers in your possession or control; or, if applicable, as permitted under Section 2.1.3.
2.1.3 VOLUME USE: You may install and use one (1) Copy of the Software on each of up to the Permitted Number of your compatible Computers (i) as listed in the Software’s documentation, and/or on its website, or (ii) under a valid Volume License Agreement with FC.
2.1.4 SERVER DEPLOYMENT: You may install the Permitted Number of copies of the Software on the Permitted Number of Computer file server(s) within your Internal Network solely for the purpose of making the Software available for downloading and installation on up to the Permitted Number of Computers within the same Internal Network. FC does not support silent, unattended, scripted, automated, push, command-line or similar installation or deployment of the Software, whether under this Section or otherwise. Nothing in this Section requires FC or its Authorised Parties to provide Technical Support for any unsupported installation or deployment method.
2.1.5 BACKUP COPY: You may make up to one (1) backup copy of the Software, provided your backup copy is not installed or used for anything other than archival purposes.
2.1.6 TAXES AND CHARGES: You acknowledge and agree that you are responsible for all tariffs, custom charges and duty taxes, value added taxes, goods and services taxes, and sales taxes payable in connection with this License Agreement.
2.1.7 ELECTRONIC DELIVERY AND PHYSICAL MEDIA: Unless the applicable order, product description or transaction expressly states that physical media is included, the Software and the Software License may be supplied entirely by electronic download, electronic delivery, Customer Portal access or another electronic method. A Software License does not of itself include a CD, DVD, USB drive, printed manual or other physical media, and the absence of physical media does not of itself constitute a failure to deliver the Software or a defect in the Software or the Software License. Nothing in this Section limits anything expressly promised in the particular transaction, any mandatory consumer or other statutory right, or any responsibility of the actual seller that cannot lawfully be excluded; however, you have no contractual entitlement, merely by purchasing a Software License, to require FC to provide, manufacture or supply a CD, DVD, USB drive, printed manual or other physical media.
2.2 INTELLECTUAL PROPERTY OWNERSHIP: THE SOFTWARE, ITS COMPONENTS, CONTENT FILES, CORPORATE LOGOS, SOFTWARE DEVELOPMENT KITS, USER INTERFACES, ALGORITHMS, DESIGNS, METHODS, LAYOUTS, ORGANISATION, STRUCTURE, SOURCE CODE, MACHINE CODE, COMPILED CODE, UNDERLYING TECHNOLOGIES AND ANY AUTHORISED COPIES ARE PROTECTED BY APPLICABLE INTELLECTUAL PROPERTY AND OTHER LAWS, INCLUDING COPYRIGHT, TRADE MARK, DESIGN, TRADE SECRET AND CONFIDENTIALITY LAWS. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NO OWNERSHIP OR INTELLECTUAL PROPERTY RIGHT IN THE SOFTWARE OR ANY PART OF IT IS TRANSFERRED OR GRANTED TO YOU. ALL INTELLECTUAL PROPERTY RIGHTS IN OR RELATING TO THE SOFTWARE REMAIN VESTED IN THEIR RESPECTIVE LAWFUL OWNERS. FC GRANTS ONLY THE LIMITED SOFTWARE LICENSE EXPRESSLY STATED IN THIS AGREEMENT. NOTHING IN THIS AGREEMENT TRANSFERS, ASSIGNS, LIMITS, DILUTES, EXTINGUISHES OR OTHERWISE AFFECTS ANY INTELLECTUAL PROPERTY RIGHT OF ANY LAWFUL OWNER. EACH LAWFUL OWNER RETAINS ALL RIGHTS AND REMEDIES AVAILABLE IN RESPECT OF ITS OWN INTELLECTUAL PROPERTY. ALL RIGHTS NOT EXPRESSLY GRANTED TO YOU ARE RESERVED. NO LICENSE OR RIGHT IS GRANTED BY IMPLICATION, ESTOPPEL OR OTHERWISE EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT.
2.2.1 COPYRIGHT: THE SOFTWARE, DOCUMENTATION AND ALL MATERIALS FORMING PART OF, INCLUDED IN, INCORPORATED INTO, BUNDLED WITH, DISTRIBUTED WITH OR ACCOMPANYING THE SOFTWARE, OR SUPPLIED FOR USE WITH THE SOFTWARE, INCLUDING WITHOUT LIMITATION THE SOFTWARE'S USER INTERFACE, SOURCE CODE, OBJECT CODE, MACHINE CODE, EXECUTABLE CODE, COMPILED CODE, CONTENT FILES, CLIPART, FONT FILES, ARTWORK, ILLUSTRATIONS, GRAPHICS, ROAD-SIGN GRAPHICS AND OTHER SYMBOLS, SAMPLE FILES, TEMPLATES, TEXTURES, GRADIENTS, PATTERNS, FILLS, EFFECTS, FILTERS, PRESETS, CURSORS, ICONS, IMAGES, PHOTOGRAPHS, AUDIO, VIDEO, TEXT, MANUALS, USER GUIDES, HELP CONTENT, MODULE NAMES, CORPORATE LOGOS, MARKS AND TRADE MARKS, ARE PROTECTED TO THE EXTENT APPLICABLE BY COPYRIGHT, TRADE MARK, DESIGN AND OTHER INTELLECTUAL PROPERTY LAWS AND BY INTERNATIONAL TREATY PROVISIONS. COPYRIGHT AND RELATED RIGHTS IN OR RELATING TO ANY OF THE FOREGOING REMAIN VESTED IN THEIR RESPECTIVE LAWFUL OWNERS. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NO COPYRIGHT, DESIGN, TRADE MARK OR OTHER INTELLECTUAL PROPERTY RIGHT IN ANY OF THE FOREGOING IS GRANTED OR TRANSFERRED TO YOU, AND ALL RIGHTS NOT EXPRESSLY GRANTED ARE RESERVED BY THEIR RESPECTIVE LAWFUL OWNERS.
2.3 SOFTWARE PROTECTION MEASURES: You acknowledge that the Software is subject to any, or any combination of, protection schemes from unauthorised use, including but not limited to: Activation, Authorisation, Licensing, and/or Registration in order for the Software to become and remain fully functional on your computer (hereafter “SPM”) and except as expressly limited by applicable law in your jurisdiction, you agree with FC that: (i) if the Software requires mandatory SPM, your License and ability to use the Software is contingent upon your providing the Software access to the Internet and/or other telecommunications services as directed by FC, or by an authorised service provider acting on its behalf, and successfully completing any SPM process and providing FC, or an authorised service provider acting on its behalf, with accurate information as required by this process, and; (ii) you acknowledge and agree that it is your sole responsibility to at all times keep your hardware serial number(s), PSN, SLN or SPN safe from partial or complete loss, and/or unauthorised use or misuse by another or third party and that FC, its Authorised Parties and any authorised service provider acting on its behalf shall not be obliged or held responsible for maintaining and/or recording such numbers on your, another or third party’s behalf or liable for their complete or partial loss howsoever caused, and that an authorised service provider assumes no independent obligation to you merely by performing the SPM process.
2.3.1 LICENSE ACCESS AND VALIDATION: You acknowledge and consent to FC, directly or through authorised service providers acting on its behalf: (i) monitoring your use of the Software for the purposes of SPM; and (ii) authenticating and periodically relicensing and/or verifying your licensing rights in the Software, either directly and/or through the Customer Portal (referred to collectively herein as “Validation”); and (iii) to the extent permitted by applicable law in your jurisdiction, collecting, transmitting, using and disclosing to its authorised service providers data relating to your use of the Software for the purposes of software licensing, fraud prevention, product operation, Technical Support, security, compliance and communications with you, with marketing communications separately governed by the applicable Privacy Policy and your applicable Opt-Out or withdrawal rights, including under Section 2.3.3.2; and (iv) accessing and modifying system functionality and settings to the extent reasonably necessary for the installation, activation, licensing, Validation, Updates, security, support and operation of the Software; and (v) providing product and License-related Communications to you, and marketing Communications only where permitted by the applicable Privacy Policy and applicable law; and (vi) you agree to be responsible for your Internet service provider fees, telecommunications and all other charges that may apply as a result of the Software undertaking the abovementioned Validation and Communications as necessary from time to time. If, for any reason, you fail to undertake Validation of Software that requires mandatory SPM within the period specified in the Software and/or its documentation, you will be unable to use the Software and your License to use the Software shall be suspended at your cost and expense until you complete the SPM process; provided that, for a Perpetual License, this sentence applies subject to Section 2.3.1.3 and does not authorise the suspension or permanent disablement of the Software solely because a required activation or Validation service or dependency is discontinued or unavailable for reasons not caused by you. You acknowledge and agree that FC does not guarantee or warrant that any specific computer or Operating System can be activated, registered or otherwise unlocked.
2.3.1.1 COMPUTER IDENTIFICATION (“CID”) MECHANISM: You acknowledge and agree that FC, directly or through an authorised service provider acting on its behalf, will record and identify your Computer when you activate, register, or otherwise unlock the Software (hereafter “Unlocked”) and that for the Software to remain Unlocked the identity of that Computer shall not change or alter. If the identity of an Unlocked Computer does change or alter you acknowledge and agree that FC will automatically deem this to be a different Computer and shall not unlock that different Computer if doing so would cause the total number of Unlocked Computers under the affected License to exceed the applicable Permitted Number, unless one or more previously Unlocked Computers are first deactivated or unregistered so that the applicable Permitted Number is not exceeded. You further acknowledge and agree with FC that it is your sole responsibility to use a Computer, or Computers, that are (a) compliant and (b) compatible with FC’s SPM and that FC does not guarantee or warrant that a specific Computer and the Operating System it uses can be unlocked. Any decision to suspend, refuse or restore a License remains a decision of FC, and an authorised service provider acting on its behalf assumes no independent obligation, warranty or liability to you.
2.3.1.2 CID VOLUME LICENSES: Where you have a Volume License section 2.3.1.1 (above) applies to each unique computer to the maximum number of licensed computers as permitted under your Volume License. To avoid any doubt, you may not have more than the maximum number of computers Unlocked at any one time than permitted under your Volume License.
2.3.1.3 SPM AND VALIDATION TECHNOLOGY DEPENDENCY: SPM functionality, activation, registration, Validation, relicensing and unlocking mechanisms depend upon third-party operating systems, hardware platforms, application programming interfaces (APIs), device drivers, security frameworks and related technologies that are beyond FC’s control. FC does not warrant that SPM, activation, registration, Validation, relicensing or unlocking functionality will continue to operate following discontinuation, modification, withdrawal, or cessation of support for any such third-party technologies. Where SPM or Validation ceases to function solely due to such third-party changes, FC will use commercially reasonable efforts to provide an alternative mechanism. Notwithstanding the foregoing, FC will not permanently disable or prevent continued use of a valid Perpetual License solely because FC, a Supplier or a third-party technology provider discontinues an activation or Validation service. Where reasonably necessary to preserve use on a configuration for which the licensed version was designed or expressly supported, FC will use commercially reasonable efforts to provide a commercially reasonable alternative activation, Validation or offline mechanism, whether the discontinuance occurs during or after the Supported Period, subject in each case to technical and commercial feasibility. Nothing in this Section 2.3.1.3 requires FC to maintain, restore or re-create discontinued infrastructure, or to develop new compatibility, after the Supported Period.
2.3.2 MANDATORY RELICENSING: YOU ACKNOWLEDGE AND AGREE WITH FC THAT WHERE YOU HAVE A TIME-LIMITED LICENSE TYPE (INCLUDING WITHOUT LIMITATION SUBSCRIPTION SOFTWARE, INSTALMENT SOFTWARE (ONLY WHILE INSTALMENTS REMAIN PAYABLE UNDER THE INSTALMENT ARRANGEMENT), OR A TRIAL, EVALUATION OR DEMONSTRATION LICENSE), THE SOFTWARE WILL CEASE TO FUNCTION UNRESTRICTED (LICENSED) UNLESS YOU PERIODICALLY RELICENSE THE SOFTWARE AS SET OUT AND REQUIRED UNDER (I) THIS LICENSE, AND/OR (II) THE LICENSE MANAGEMENT REGIME, AND/OR (III) ACCORDING TO THE LICENSE TYPE AS SET FORTH IN THE SOFTWARE’S DOCUMENTATION AND/OR ON ITS WEBSITE. YOU FURTHER AGREE WITH FC THAT IT IS YOUR SOLE RESPONSIBILITY AND SHALL BE ENTIRELY AT YOUR OWN COST/EXPENSE TO COMPLETE THE SOFTWARE LICENSE RENEWAL ON YOUR LICENSED COMPUTER(S) AND THAT NEITHER FC, ITS AUTHORISED PARTIES, NOR ANY AUTHORISED SERVICE PROVIDER ACTING ON ITS BEHALF SHALL BE HELD (I) LIABLE, OR (II) RESPONSIBLE, AND/OR (III) DEEMED IN DEFAULT OF THIS AGREEMENT BY YOU, ANOTHER OR THIRD PARTY FOR ANY FAILURE OR DELAY BY YOU TO RENEW YOUR SOFTWARE LICENSE OR ANY COMPLETE OR PARTIAL LOSS OF ANY NUMBERS REQUIRED TO COMPLETE THIS PROCESS. FOR THE AVOIDANCE OF DOUBT, A PERPETUAL LICENSE DOES NOT CEASE TO FUNCTION UNDER THIS SECTION 2.3.2 FOR FAILING TO RELICENSE; A COMPLIANT PERPETUAL LICENSEE RETAINS THE RIGHT TO USE THE LICENSED VERSION IN ACCORDANCE WITH THE DEFINITION OF “PERPETUAL” IN SECTION 1.2, SUBJECT TO SECTION 2.3.1.3 AND THIS AGREEMENT, AND ANY VALIDATION OR ACTIVATION STEP APPLICABLE TO A PERPETUAL LICENSE IS LIMITED TO CONFIRMING THE INTEGRITY AND AUTHENTICITY OF THE LICENSE AND DOES NOT DEPRIVE A COMPLIANT PERPETUAL LICENSEE OF THE USE OF THE LICENSED VERSION.
2.3.2.1 MANDATORY INTERNET ACCESS: PURSUANT TO SECTION 2.3 (ABOVE) AND WHERE THE SOFTWARE REQUIRES SPM AND EITHER DIRECT OR INDIRECT INTERNET ACCESS TO BECOME FULLY FUNCTIONAL YOU HEREBY AGREE WITH FC THAT YOU SHALL PROVIDE INTERNET ACCESS IN ORDER TO FULFIL YOUR OBLIGATIONS UNDER THE TERMS OF THIS LICENSE AGREEMENT TO PROPERLY COMPLETE THE SPM PROCESS AND YOU FURTHER AGREE THAT YOU SHALL PROVIDE THE MINIMUM INFORMATION AS IS REQUIRED BY THE SPM PROCESS INCLUDING BUT NOT LIMITED TO A VALID EMAIL ADDRESS.
2.3.2.2 INTERRUPTION OF ONLINE SERVICES: NEITHER FC NOR ITS AUTHORISED PARTIES SHALL BE HELD LIABLE, RESPONSIBLE OR IN DEFAULT OF THIS AGREEMENT BY YOU OR ANY THIRD PARTY FOR ANY FAILURE, DELAY OR INTERRUPTION IN ONLINE SERVICES, OR ANY FAILURE OF HARDWARE, EQUIPMENT, SOFTWARE OR TELECOMMUNICATIONS, RESULTING FROM ANY CAUSE OR CIRCUMSTANCE BEYOND THE REASONABLE CONTROL OF THE PERSON OR ENTITY SEEKING TO RELY ON THIS SECTION.
2.3.3 PRIVACY, DATA AND STATISTICAL COLLECTION: To the extent permitted by applicable law, you acknowledge and agree that FC, directly or through authorised service providers acting on its behalf, may securely store and use your contact information, including names, telephone numbers and email addresses. Where required by applicable law, such information will be handled in accordance with the applicable Privacy Policy and any applicable safeguards, including applicable cross-border transfer mechanisms. Whenever the Software connects over the Internet, certain Account Holder information may be collected and transmitted to FC or to an authorised service provider acting on its behalf in accordance with the applicable Privacy Policy. You further agree to permit FC to obtain your computer’s Performance Report for each calendar week unless you exercise an applicable Opt-Out through the Software’s preferences or settings or by writing to FC. Such information will be securely processed and used only in connection with your License, your use of the Software and FC’s business relationship with you, and may be provided to FC’s Authorised Parties, contractors, authorised data processors, service providers or Suppliers strictly for the purposes of software licensing, Technical Support, security, fraud prevention, compliance and product Communications. For FC’s Privacy Policy, see Section 9 below.
2.3.3.1 ELECTRONIC DELIVERY OF COMMUNICATIONS: You hereby agree and consent to the electronic delivery of all communications, documents, notices, product information, links, offers and disclosures (collectively, “Communications”) that FC or an authorised service provider acting on its behalf provides in connection with the Software, your Account and your use of FC’s services. For the avoidance of doubt, this Section 2.3.3.1 concerns the method of delivery and does not by itself constitute consent to receive marketing or promotional Communications, including offers, where separate consent is required by applicable law. Marketing or promotional Communications may be sent only as permitted by the applicable Privacy Policy and applicable law.
2.3.3.2 HOW TO WITHDRAW YOUR CONSENT: You may withdraw your consent to receive optional Communications electronically by: (i) writing to the contact address identified in FC’s Privacy Policy or through the support or privacy channel designated by FC, specifying your business and/or related details and the Communications from which you wish to withdraw; or (ii) clicking Unsubscribe on an electronic Communication that provides such a link and indicating the specific Communications from which you wish to unsubscribe. The applicable contact details are set out in Section 9.3.
2.3.3.3 YOUR CONTACT INFORMATION AND UPDATES: It is your sole responsibility to provide and maintain a complete, accurate, valid and accessible primary email address when purchasing, registering, activating or licensing the Software and at all times thereafter so that FC and any authorised service provider acting on its behalf can identify your Account and communicate with you electronically. Subject to applicable law, neither FC nor its Authorised Parties shall be responsible or liable for any delay, inability to access an Account, failure to receive a Communication, registration or activation difficulty, or other consequence arising from an incorrect, incomplete, inaccessible or out-of-date email address or other Account information provided by you. Any request to correct or change an email address or other Account information may require reasonable verification of your identity, ownership of the affected License and entitlement to the Account before any change is made. You understand and agree that if FC, or an authorised service provider acting on its behalf, sends you an electronic Communication but you do not receive it because your primary email address on file is incorrect, incomplete, out of date, blocked by your service provider, inaccessible to you, or you are otherwise unable to receive electronic Communications, FC will be deemed to have provided the Communication to you, subject to applicable law.
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
2.3.4.1 REMEDIES FOR BREACH: WHERE FC OR ANY OF ITS AUTHORISED PARTIES OR SUPPLIERS HAS EVIDENCE OR DETERMINES, ACTING REASONABLY AND AFTER REASONABLE INVESTIGATION, THAT YOU HAVE CIRCUMVENTED OR ATTEMPTED TO CIRCUMVENT THE SOFTWARE PROTECTION MEASURES SET FORTH IN SECTION 2.3.4 (ABOVE), AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, FC MAY ISSUE A WRITTEN CEASE AND DESIST DEMAND, PROTECT OR BLOCK ACCESS TO ITS SYSTEMS OR SERVICES, PRESERVE EVIDENCE, INVESTIGATE THE SUSPECTED CIRCUMVENTION, MAKE DISCLOSURES PERMITTED BY LAW (INCLUDING TO RELEVANT AUTHORITIES AND ANY PERSON OR ENTITY WITH A LEGAL RIGHT TO THE INFORMATION), APPLY TO A COURT OF COMPETENT JURISDICTION FOR URGENT INJUNCTIVE OR EQUITABLE RELIEF WITHOUT THE NEED FOR POSTING A BOND WHERE PERMITTED BY APPLICABLE LAW, PURSUE CLAIMS FOR INFRINGEMENT OR DAMAGES INCLUDING TO RECOVER LOSSES INCURRED BY FC, AND TAKE OTHER PROPORTIONATE ACTION NECESSARY TO PROTECT ITS INTELLECTUAL PROPERTY, SECURITY AND SYSTEMS, AND MAY SUSPEND OR TERMINATE THE AFFECTED SOFTWARE LICENSE, SUSPEND OR TERMINATE THE CUSTOMER ACCOUNT, PERMANENTLY DEACTIVATE OR DEREGISTER THE LICENSED SOFTWARE, PERMANENTLY REFUSE FURTHER ACTIVATIONS OR REGISTRATIONS UNDER THE LICENSE, OR RESTORE THE LICENSE OR ACCOUNT. AN AUTHORISED SERVICE PROVIDER MAY TECHNICALLY IMPLEMENT A DECISION OF FC BUT ACQUIRES NO INDEPENDENT CONTRACTUAL POWER.
2.3.5 NON-PAYMENT OF LICENSE FEE: THIS SECTION APPLIES WHERE (A) YOU FAIL TO PAY ANY AMOUNT DUE AND PAYABLE IN RESPECT OF THE SOFTWARE LICENSE; (B) YOU OBTAIN A CREDIT-CARD OR DEBIT-CARD CHARGE-BACK OTHER THAN ON LAWFUL GROUNDS; OR (C) AN AUTHORISED CHANNEL PARTICIPANT REASONABLY AND VALIDLY CLAIMS THAT YOU HAVE NOT PAID ALL AMOUNTS THEN DUE AND PAYABLE FOR THE SOFTWARE, WHETHER AN OEM, RETAIL, WHOLESALE OR OTHER VERSION; AND, WHERE APPLICABLE, YOU HAVE NOT VALIDLY EXERCISED THE VOLUNTARY REFUND RIGHT UNDER PARAGRAPH III OF THE INTRODUCTORY PROVISIONS (ABOVE) WITHIN THE TIME AND IN THE MANNER SPECIFIED THEREIN. WHERE THIS SECTION APPLIES, YOU ACKNOWLEDGE AND AGREE THAT, WHERE THERE ARE REASONABLE GROUNDS TO DO SO AFTER REASONABLE INVESTIGATION, AND SUBJECT TO MANDATORY APPLICABLE LAW, ANY ACTION TAKEN UNDER PARAGRAPHS (I) OR (II) MUST BE PROPORTIONATE AND CONFINED TO THE LICENSE TO WHICH THE UNPAID AMOUNT RELATES (THE "AFFECTED LICENSE"), AND THAT ONLY FC MAY SUSPEND OR TERMINATE THE AFFECTED LICENSE OR SUSPEND OR CLOSE YOUR ACCOUNT WITH IT, AND ACCORDINGLY THAT: (I) FC MAY SUSPEND THE AFFECTED LICENSE, REMOTELY LOCK THE SOFTWARE LICENSED UNDER IT, DECLINE FURTHER UNLOCKING OF THAT SOFTWARE, SUSPEND OR CLOSE YOUR ACCOUNT WITH FC TO THE EXTENT IT RELATES TO THE AFFECTED LICENSE, AND, AFTER A REASONABLE OPPORTUNITY TO PAY, TERMINATE THE AFFECTED LICENSE; (II) FC MAY BLOCK ACCESS TO ONLINE SERVICES OPERATED BY OR FOR IT AND ASSOCIATED WITH THE AFFECTED LICENSE; (III) AN AUTHORISED SERVICE PROVIDER MAY TECHNICALLY IMPLEMENT A DECISION MADE UNDER PARAGRAPHS (I) OR (II) ABOVE, BUT ACQUIRES NO INDEPENDENT CONTRACTUAL POWER, RIGHT OR DISCRETION; AND (IV) EACH OF FC AND ANY AUTHORISED PARTY MAY, ACTING WITHIN THE SCOPE OF ITS OWN AUTHORISED FUNCTION AND WHERE LEGALLY PERMITTED TO DO SO, DISCLOSE RELEVANT INFORMATION, INCLUDING YOUR IDENTITY, TO RELEVANT AUTHORITIES OR TO ANY PERSON OR ENTITY LEGALLY ENTITLED TO RECEIVE IT. NOTWITHSTANDING THE FOREGOING, THIS SECTION 2.3.5 DOES NOT APPLY TO, AND DOES NOT PLACE YOU IN BREACH IN RESPECT OF, ANY NON-PAYMENT OR CHARGE-BACK MADE ON LAWFUL GROUNDS, INCLUDING WHERE FC OR THE RELEVANT AUTHORISED CHANNEL PARTICIPANT HAS FAILED TO MEET A MATERIAL OBLIGATION OWED BY IT TO YOU IN CONNECTION WITH THE AFFECTED TRANSACTION AND THAT FAILURE GIVES YOU A LAWFUL RIGHT TO WITHHOLD THE RELEVANT PAYMENT OR OBTAIN THE RELEVANT CHARGE-BACK, OR WHERE YOU EXERCISE ANY RIGHT THAT CANNOT LAWFULLY BE EXCLUDED, RESTRICTED OR MODIFIED UNDER THE LAWS APPLICABLE TO YOU IN YOUR JURISDICTION, INCLUDING ANY APPLICABLE UNFAIR CONTRACT TERMS OR CONSUMER PROTECTION LAWS AND INCLUDING THE AUSTRALIAN CONSUMER LAW.
2.3.5.1 AUTHORISED CHANNEL PARTICIPANT NON-PAYMENT: TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IF AN AUTHORISED CHANNEL PARTICIPANT HAS FAILED FOR MORE THAN NINETY (90) DAYS TO REMIT TO FC THE AMOUNT PAYABLE IN RESPECT OF THE SOFTWARE LICENSE GRANTED TO YOU BY FC, FC MAY, AFTER REASONABLE INVESTIGATION AND ACTING REASONABLY IN ITS DISCRETION, TERMINATE THE AFFECTED SOFTWARE LICENSE FOR NON-PAYMENT, PROVIDED THAT FC MAY NOT RELY ON THIS SECTION 2.3.5.1 WHERE YOU PROVIDE REASONABLE PROOF THAT YOU PAID THE AUTHORISED CHANNEL PARTICIPANT ALL AMOUNTS THEN DUE AND PAYABLE BY YOU IN RESPECT OF THE AFFECTED LICENSE. WHERE PRACTICABLE, FC WILL USE REASONABLE EFFORTS TO PURSUE THE AUTHORISED CHANNEL PARTICIPANT FOR PAYMENT BEFORE TERMINATING THE AFFECTED LICENSE. AN AUTHORISED SERVICE PROVIDER MAY TECHNICALLY IMPLEMENT A DECISION OF FC UNDER THIS SECTION BUT ACQUIRES NO INDEPENDENT CONTRACTUAL POWER. SUBJECT TO THE FOREGOING, YOU HEREBY AGREE TO (I) PURSUE THE AUTHORISED CHANNEL PARTICIPANT FOR A REFUND OF ANY MONEYS PAID BY YOU, AT YOUR OWN COST AND RISK; AND (II) SUBJECT TO ANY LIABILITY WHICH CANNOT LAWFULLY BE EXCLUDED OR LIMITED IN YOUR JURISDICTION, NOT MAKE OR BRING ANY CLAIM AGAINST FC OR ITS AUTHORISED PARTIES 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 ANY OF THEM OR THEIR REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS.
2.3.6 ONLINE ORDERING: TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU ACKNOWLEDGE AND AGREE THAT IF YOU PURCHASE THE SOFTWARE LICENSE USING AN ONLINE CART OR SERVICE PROVIDED BY OR ON BEHALF OF FC, AN ACCOUNT MAY BE CREATED FOR YOU AND DETAILS OF THE PRODUCT LICENSE AND PAYMENT INFORMATION MAY BE SECURELY STORED ON SERVERS OPERATED BY FC OR BY AN AUTHORISED SERVICE PROVIDER ACTING ON ITS BEHALF, INCLUDING WITHIN YOUR JURISDICTION WHERE REQUIRED BY APPLICABLE LAW. EXCLUDING CIRCUMSTANCES BEYOND THE REASONABLE CONTROL OF FC, YOU WILL BE GRANTED ACCESS TO THE ACCOUNT USING YOUR REGISTERED EMAIL ADDRESS AND/OR USERNAME AND PASSWORD. YOU AGREE TO KEEP YOUR ACCOUNT DETAILS UP TO DATE AT ALL TIMES. YOU FURTHER ACKNOWLEDGE THAT THE CUSTOMER PORTAL MAY BE OWNED, OPERATED OR CONTROLLED BY FC OR OPERATED FOR IT BY AN AUTHORISED SERVICE PROVIDER, AND THAT FC MAY RESTRICT, SUSPEND OR WITHDRAW ACCESS TO YOUR ACCOUNT WHERE REASONABLY NECESSARY TO PROTECT PLATFORM SECURITY, PREVENT FRAUD OR MISUSE, ENFORCE THIS AGREEMENT, COMPLY WITH LAW OR PROTECT THE LEGITIMATE INTERESTS OF FC OR ITS AUTHORISED PARTIES, SUBJECT TO APPLICABLE LAW. USE OF AN AUTHORISED SERVICE PROVIDER DOES NOT MAKE THAT SERVICE PROVIDER THE LICENSOR, SELLER, WARRANTOR OR CONTRACTUAL PROVIDER OF TECHNICAL SUPPORT FOR THE SOFTWARE.
2.3.6.1 ONLINE ORDERING DISPUTES: PURSUANT TO SECTION 2.3.6 (ABOVE) YOU FURTHER AGREE AND ACKNOWLEDGE THAT FC ACCEPTS A VALIDLY RECEIVED ORDER ONLINE AS BONA FIDE AND WHERE MULTIPLE PURCHASES BY YOU ARE RECEIVED, EACH PURCHASE SHALL BE CONSIDERED VALID AND PAYABLE IN FULL WHEN DUE AND UNLESS YOU HAVE REQUESTED A VALID REFUND UNDER III (ABOVE) FC SHALL BE UNDER NO OBLIGATION TO REFUND OR CANCEL YOUR LICENSE OR LICENSES. TO AVOID ANY DOUBT WHERE YOU OR YOUR REPRESENTATIVE HAS USED AN ONLINE CART OR SERVICE OR YOUR CUSTOMER ACCOUNT TO PURCHASE A SOFTWARE LICENSE OR LICENSES, EVEN IF PURCHASED IN ERROR OR BY MISTAKE, BUT SUBJECT ALWAYS TO ANY NON-EXCLUDABLE RIGHTS UNDER APPLICABLE LAW, YOU SHALL TAKE SOLE RESPONSIBILITY TO PAY FOR YOUR LICENSE OR LICENSES IN FULL WHEN DUE.
2.3.6.2 COUPON CODES NO REFUND: Where a coupon code is available to apply a discount at an FC online cart and has not been entered by you (the purchaser) for any or no reason, neither FC nor its Authorised Parties shall be required or held liable to issue you a refund after the refund period as set forth under III (above).
2.3.7 ACCOUNT AND LICENSE VERIFICATION: Before FC changes the registered email address or other material Account information, restores access to an Account, discloses, clears, resets, replaces or reissues a PSN, SLN, SPN, Customer Number, Activation Number, Registration Number or other License identifier, transfers or changes the registered Licensee, or processes a request made by an employee, former employee, spouse, former spouse, beneficiary, executor, administrator, legal personal representative or another person claiming through the registered Licensee, FC may require reasonable and satisfactory evidence, including where relevant: proof of identity; proof of purchase; evidence of the relevant Software License; evidence of authority to act for a company, organisation, estate or another person; evidence reasonably establishing entitlement to the Account or License; and reasonable information necessary for fraud, security and ownership verification. (a) Lost or inaccessible email: Loss of access to, inability to remember, discontinuation of, or inability to receive messages at the registered email address does not of itself establish ownership of the Account or License, require FC to change the registered email address, require FC to clear or replace a License identifier, or entitle the requester to another Software License. (b) Employment, relationship and ownership disputes: The departure of an employee, a divorce or separation, a private agreement between individuals, possession of a Computer or Output Hardware, possession or knowledge of a PSN or other License identifier, or a payment made between third parties does not of itself establish an entitlement to have the Account or License transferred or altered, and any transfer of a License remains governed by Section 2.4. (c) Insufficient or conflicting evidence: Subject to mandatory applicable law, FC may decline or defer a requested Account or License change where reasonable evidence has not been supplied, the information supplied is materially inconsistent, ownership of or authority over the Account or License is genuinely disputed, there is a reasonable fraud or security concern, or carrying out the request could interfere with the rights of another person. (d) Death or incapacity: The death or incapacity of a registered Licensee does not of itself transfer the Software License to a beneficiary, family member or other person. Subject to mandatory applicable law, an executor, administrator, attorney, guardian or other legally authorised representative may request the administration or transfer of the License where that person provides reasonable evidence of the death or incapacity, provides satisfactory evidence of their legal authority, satisfies FC’s reasonable identity and fraud-verification requirements, and complies with Section 2.4 and every applicable restriction on transfer. For that purpose, such legally authorised representative may act on behalf of the registered Licensee or the Licensee’s estate solely to the extent reasonably necessary to satisfy the applicable requirements of Section 2.4. Any transferee acquires no greater rights than the original Licensee, and no such transfer restarts the Supported Period or any warranty period, revives an expired or terminated License, extinguishes any unpaid amount, or overrides any restriction making the particular License non-transferable. Nothing in this Section obliges FC to effect a transfer where applicable law does not require it. (e) No automatic replacement right: Nothing in this Section creates an obligation to issue a replacement Software License, PSN or other License identifier merely because the requester cannot access the Account or the registered email address, and Section 2.4.3 continues to apply. (f) Voluntary assistance: Any assistance or accommodation voluntarily provided by FC under this Section is discretionary in the manner described in Section 2.4.2.4, subject to applicable law, does not constitute an admission of liability or responsibility, and does not create a continuing obligation to provide the same or similar assistance in another case.
2.4 TRANSFER OF LICENSE
2.4.1 NO UNAUTHORISED ASSIGNMENT OR TRANSFER: All Licenses granted under this Agreement are non-exclusive and are granted only to the Licensee under this Agreement. Except as expressly permitted by this Agreement, including Section 2.4.2 below, you may not lease, rent, sublicense, assign, sell, resell, share or transfer a License or any rights granted under it, or authorise any part or component of the Software to be used by or copied onto another person’s or entity’s Computer. A License may be transferred only in accordance with the express procedures and conditions set forth in this Agreement and through FC’s Customer Portal or any other license-transfer process made available by FC. Where a transfer is completed in accordance with Section 2.4.2, no separate application for consent or prior written consent of FC is required. A License may not be transferred while any amount then due and payable in respect of that License remains unpaid, unless FC expressly permits the transfer or applicable law requires otherwise. Any purported assignment, sublicense, rental, sale, resale, sharing or transfer that does not comply with the applicable provisions of this Agreement is void and of no effect, except to the extent that applicable law gives you a right to transfer the licensed copy that cannot lawfully be excluded or restricted. FC may suspend or terminate the relevant License where it reasonably determines, on credible evidence, that an actual material unauthorised dealing has occurred, and may take immediate protective action in cases of fraud, deliberate license sharing, Circumvention, the unauthorised sale, resale or purported transfer of a License or License identifier, including any PSN, SLN or SPN, the sale or purported transfer of the same License or License identifier to more than one person or entity, the retention or continued use of the Software after a purported transfer, or other serious misuse, subject to mandatory applicable law and any legally required notice or cure period.
2.4.2 LICENSE TRANSFER TO THIRD PARTIES: Subject to Section 2.4.1 above and Section 2.4.2.3 below, you may permanently transfer a Software License and the rights granted to you under that License to another person or entity provided that: (a) you also transfer or provide, as applicable, (i) a copy of this License Agreement; (ii) the applicable Product Serial Number (PSN), Software License Number (SLN), Software Product Number (SPN) or other Software License, Product or Customer identifier; (iii) the Software media, including any discs, and product documentation provided by FC or its Authorised Parties; (iv) where Section 7.4.3 applies, including by operation of Section 7.7.5, the approved piece of Hardware assigned to the Software as required by Section 7.4.3; (v) all Software bundled, packaged, downloaded or preinstalled with the Software as part of the License being transferred, including all copies, conversions, patches, service packs, upgrades, updates and prior versions; and (vi) where applicable, the complete Volume License and all Licenses or seats forming part of it as required by Section 2.4.2.3; (b) you cease all use of the Software under the License being transferred, remove or uninstall it from all Computers and systems in your possession or control, and retain no copy, conversion, patch, service pack, upgrade, update or prior version of that Software, including any backup or other copy stored on a Computer in your possession or control; (c) you complete the transfer through FC’s Customer Portal or any other license-transfer process made available by FC; (d) the receiving party completes and accepts the transfer into its name and acknowledges and accepts this License Agreement and any other terms and conditions that expressly apply to and continue to govern the License being transferred; and (e) the transfer complies with Section 2.5.6 and, where applicable, Sections 8.1.2.3 and 8.1.2.4, including any license, permit, authorisation or approval required by applicable law. The receiving party acquires no greater rights than you held immediately before the transfer, and the transfer does not extend, restart, renew or revive the Supported Period, any License term, warranty period or other time-limited entitlement applicable to the License, nor does it release or discharge any amount already due or payable in respect of the License unless FC expressly agrees otherwise. The restrictions in this Section apply except to the extent that applicable law gives you a right to transfer the licensed copy that cannot lawfully be excluded or restricted.
2.4.2.1 NOTICE TO TRANSFEREES: It is the responsibility of the registered Licensee to correctly complete the steps required of it to transfer a License to another person or entity in accordance with Section 2.4.2 above, and the responsibility of the receiving party to complete and accept the transfer into its name and accept the applicable terms and conditions as required by that Section. FC and its Authorised Parties shall not be responsible or liable for any failure by the registered Licensee or receiving party to fulfil their respective obligations under Section 2.4.2, subject to applicable law.
2.4.2.2 FAILURE TO COMPLETE TRANSFER: Pursuant to Section 2.4.2 above, where the registered Licensee fails for any reason to complete the applicable license-transfer process, or the receiving party fails or refuses to complete and accept the transfer into its name or to accept the terms and conditions required under Section 2.4.2, the purported transferee shall have no right to use the Software under the affected License until the requirements of Section 2.4.2 have been satisfied, notwithstanding any payment or other consideration paid or provided by the purported transferee to the registered Licensee, its liquidator, receiver or any other person.
2.4.2.3 THIRD PARTY RESTRICTIONS: Notwithstanding section 2.4.2 (above), you may not transfer Academic, Education, Student and Teacher (Education Software), Beta, Pre-Release, or Not For Resale (Beta Software), individual Volume Licenses (unless all such Volume Licenses are wholly transferred pursuant to section 2.4.2 above), Demonstration, Evaluation, Free-Trial, or Try-Out (Demonstration Software) copies or versions of the Software to another or third party. Volume Licenses may only be transferred as a complete set and may not be divided, separated, partitioned, sold, assigned or transferred on a seat-by-seat or individual unit basis; any purported seat-level transfer of a Volume License is void and of no effect.
2.4.2.4 INCOMPLETE, INVALID OR FRAUDULENT TRANSFERS: Subject to any right that cannot lawfully be excluded under applicable law, and regardless of License Type, the sale, supply, delivery or possession of any Computer, Output Hardware, OEM hardware, media, Software copy, Product Serial Number (PSN), Software License Number (SLN), Software Product Number (SPN), Hardware Serial Number, Activation Number, Registration Number, Customer Number or other Software License, Product, Account or other identifying number or identifier does not of itself transfer a Software License or confer any right to use, Activate, Register, unlock, obtain or otherwise exercise any rights in or to the Software. A transfer must be completed in accordance with Section 2.4.2 and FC’s applicable license-transfer process. Where a purported seller or transferor fails to complete a valid transfer, provides an invalid, duplicated, unauthorised, previously transferred or already-in-use License identifier, retains or continues to use the Software or License, or otherwise purports to sell or transfer rights that the seller or transferor does not lawfully have, FC and its Authorised Parties shall not, subject to applicable law, be responsible or liable for the acts or omissions of that seller or transferor or for any payment, loss, dispute or other consequence arising between the seller or transferor and the purported transferee. FC is not required merely because of such purported sale or transfer to issue, replace, Activate, Register, unlock, reissue or otherwise provide another Software License or License identifier to the purported transferee. Any assistance, replacement, discount, coupon, concession or other accommodation voluntarily offered by FC in such circumstances is discretionary, subject to applicable law, does not constitute an admission of liability or responsibility and does not create any continuing obligation to provide the same or a similar accommodation in any other case.
2.4.3 LOST OR STOLEN: To the extent permitted by applicable law, you acknowledge and agree that if the Software, any Software media, Product Serial Number (PSN), Software License Number (SLN), Software Product Number (SPN), Hardware Serial Number, Activation Number, Registration Number, Customer Number or other Software License, Product, Account or identifying number or identifier is misplaced, lost, stolen, damaged, destroyed or otherwise becomes unavailable to you, FC and its Authorised Parties shall have no obligation to replace or reissue the Software, media, License, License identifier, activation or registration number, hardware security device or any other associated item, whether free of charge or at a discounted rate, or otherwise make good your loss, except to the extent required by applicable law.
2.4.4 TRANSFER BETWEEN COMPUTERS: If you deactivate or deregister or entirely remove an authorised Copy of the Software from a Computer on which it is installed, you may install and, where applicable, Activate, Register or otherwise unlock one Copy of the Software on another compatible Computer in your possession or control, provided that the total number of Copies installed or Unlocked under the affected License does not exceed the applicable Permitted Number. HOWEVER, YOU ACKNOWLEDGE AND AGREE THAT IF FC REASONABLY DETERMINES, ON CREDIBLE EVIDENCE OBTAINED THROUGH SPM, VALIDATION OR ANOTHER LAWFUL SOURCE (SEE SECTIONS 2.3, 2.3.1 AND 2.3.4 ABOVE), THAT AN UNAUTHORISED COPY OR COPIES OF THE SOFTWARE LICENSED UNDER THE AFFECTED LICENSE ON A COMPUTER OR COMPUTERS IS IN YOUR POSSESSION OR CONTROL AND YOU FAIL TO DEACTIVATE OR DEREGISTER OR ENTIRELY REMOVE THE UNAUTHORISED COPY OR COPIES OF THE SOFTWARE AS DIRECTED BY FC OR FAIL TO PROVIDE A REASONABLE EXPLANATION WITH SUFFICIENT EVIDENCE AS TO THE PARTICULAR CIRCUMSTANCES WITHIN FOURTEEN (14) DAYS OF SUCH NOTICE, WHICH YOU AGREE IS AT FC’S REASONABLE DISCRETION TO EITHER (I) ACCEPT; OR (II) REJECT, YOU WILL BE UNABLE TO USE THE SOFTWARE AND YOUR LICENSE SHALL BE SUSPENDED UNTIL SUCH TIME AS YOU DEACTIVATE OR DEREGISTER OR REMOVE THE UNAUTHORISED COPY OR COPIES OF THE SOFTWARE TO FC’S SATISFACTION. FURTHER, YOU ACKNOWLEDGE AND AGREE THAT (I) ANY SPECIAL, CONSEQUENTIAL, ECONOMIC, INCIDENTAL, OR INDIRECT DAMAGES; OR (II) LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS; OR (III) CLAIMS OR LAWSUITS, INCLUDING ATTORNEY OR SOLICITOR FEES, THAT ARISE OR RESULT FROM YOUR FAILING TO DEACTIVATE OR DEREGISTER OR ENTIRELY REMOVE AN UNAUTHORISED OR ILLEGAL COPY OF THE SOFTWARE LICENSED UNDER THE AFFECTED LICENSE ON A COMPUTER OR COMPUTERS IN YOUR POSSESSION OR CONTROL, SO FAR AND TO THE EXTENT APPLICABLE LAW ALLOWS, ARE SOLELY ASSUMED BY YOU. ANY SUSPENSION UNDER THIS SECTION IS LIMITED TO THE AFFECTED LICENSE. IF FC’S DETERMINATION PROVES INCORRECT, FC WILL PROMPTLY REINSTATE THE AFFECTED LICENSE. NOTHING IN THIS SECTION EXCLUDES OR LIMITS ANY LIABILITY ARISING FROM FC’S NEGLIGENCE OR WRONGFUL CONDUCT TO THE EXTENT THAT SUCH LIABILITY CANNOT LAWFULLY BE EXCLUDED OR LIMITED.
2.4.4.1 REMEDIES FOR BREACH: IN THE EVENT THAT FC, AN APPROPRIATE AUTHORISED PARTY OR A SUPPLIER HAS EVIDENCE, OR FC DETERMINES, ACTING REASONABLY, THAT YOU HAVE AN UNAUTHORISED OR ILLEGAL COPY OF THE SOFTWARE ON A COMPUTER OR COMPUTERS IN YOUR POSSESSION OR CONTROL AS SET FORTH IN SECTION 2.4.4 (ABOVE), AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, FC MAY TAKE SUCH REASONABLE ACTION AS IS NECESSARY TO PROTECT THE SOFTWARE AND ITS INTELLECTUAL PROPERTY, SYSTEMS AND SERVICES, INCLUDING ISSUING YOU A WRITTEN CEASE AND DESIST DEMAND, BLOCKING ACCESS TO ITS ONLINE SERVICES, SUSPENDING OR TERMINATING THE AFFECTED SOFTWARE LICENSE OR ACCOUNT, REMOTELY DEACTIVATING OR DEREGISTERING THE SOFTWARE, REFUSING FURTHER ACTIVATIONS OR REGISTRATIONS, OR RESTORING THE LICENSE OR ACCOUNT, DISCLOSING SUCH INFORMATION (INCLUDING YOUR IDENTITY) TO RELEVANT AUTHORITIES AND/OR ANY PERSON OR ENTITY THAT HAS THE LEGAL RIGHT TO SUCH INFORMATION, TAKING LEGAL ACTION AGAINST YOU TO RECOVER ANY AND ALL LOSSES INCURRED BY FC, AND APPLYING TO A COURT OF COMPETENT JURISDICTION FOR URGENT INJUNCTIVE RELIEF WITHOUT THE NEED FOR POSTING A BOND, WHERE PERMITTED BY APPLICABLE LAW. AN AUTHORISED SERVICE PROVIDER MAY TECHNICALLY IMPLEMENT A DECISION OF FC BUT ACQUIRES NO INDEPENDENT CONTRACTUAL POWER.
2.5 OUTPUT AND SAMPLE FILES
2.5.1 SAMPLE FILES: Unless stated otherwise in the Software’s documentation, which may include specific rights and restrictions with respect to such materials, you may display, modify, reproduce, and distribute any of the Sample Files. However, unless you substantially modify the Sample Files you may not advertise, distribute, pass-off or sell the Sample Files as your own work or works.
2.5.2 OUTPUT FILES: Unless permitted by applicable law Output Files including any third party File Formats (producible from the Software) and Fonts regardless of type or format (producible from the Software) shall not be used in the production of defamatory, fraudulent, lewd, libellous, obscene, pornographic or any terrorism-related, extremist or sanctioned material(s) or any material that infringes upon any third party Intellectual Property rights or in violation of applicable sanctions or export control laws, or in any other unlawful manner. See important and further terms and conditions that affect this paragraph in section 2.5.5 (below).
2.5.3 USE OF COPYRIGHT AND TRADE MARKS: Unless it is an original work produced by you, or you are permitted by applicable law to import into the Software and/or design and/or create using the Software, you may not claim, disseminate and/or benefit from any Intellectual Property rights including but not limited to any copyright and/or trade mark rights in the Output Files or derivative works thereof including any third party File Formats (producible from the Software) and Fonts regardless of type or format (producible from the Software) without the express permission from the lawful owner of such copyright material(s) or trade mark(s) or otherwise Intellectual Property owner(s). See important and further terms and conditions that affect this paragraph in section 2.5.5 below.
2.5.4 SECURITY-1: INFORMATION RIGHTS AND USE MANAGEMENT: The Software may contain a feature known as Security-1 or S1 that allows you to install the Software onto highly secured and/or secret networks, password protect the Software from unauthorised access or use and to create content that cannot be printed, copied, sent to, used, or otherwise modified by another or third party without your permission and that may be encrypted using strong encryption. YOU HEREBY REPRESENT AND WARRANT TO FC THAT YOU ARE LAWFULLY PERMITTED TO POSSESS AND USE SECURITY-1 WITH SUCH ENCRYPTION CAPABILITIES WITHIN YOUR JURISDICTION AND WARRANT TO INDEMNIFY FC AGAINST ANY AND ALL CLAIMS OR DEMANDS RESULTING FROM SUCH USE, POSSESSION OF, OR APPLICATION OF SECURITY-1 OR S1 WHATSOEVER, AS FURTHER SET FORTH IN AND GOVERNED BY SECTION 2.5.5 BELOW.
2.5.5 INDEMNIFICATION: PURSUANT TO SECTIONS 2.5.2, 2.5.3 AND 2.5.4 (ABOVE) YOU AGREE TO INDEMNIFY, HOLD HARMLESS AND DEFEND FC AND ITS AUTHORISED PARTIES AND SUPPLIERS FROM AND AGAINST ANY LOSS, DAMAGE, CLAIMS OR LAWSUITS, INCLUDING LEGAL FEES (ON AN ATTORNEY/SOLICITOR AND OWN CLIENT BASIS), THAT ARISE OR RESULT FROM THE APPLICATION, USE OR DISTRIBUTION OF YOUR OUTPUT FILES INCLUDING ANY THIRD PARTY FILE FORMATS (PRODUCIBLE FROM THE SOFTWARE), FONTS REGARDLESS OF TYPE (PRODUCIBLE FROM THE SOFTWARE) AND THE POSSESSION, IMPLEMENTATION AND USE OF SECURITY-1 OR S1. THIS INDEMNITY DOES NOT APPLY TO THE EXTENT THAT THE RELEVANT LOSS, DAMAGE, CLAIM OR LIABILITY IS CAUSED OR CONTRIBUTED TO BY THE NEGLIGENCE, FRAUD OR WILFUL MISCONDUCT OF THE INDEMNIFIED PERSON SEEKING TO RELY ON THIS INDEMNITY.
2.5.6 IMPORT AND EXPORT RESTRICTIONS: Pursuant to this Agreement, including in relation to any Output Files or other materials created from or in conjunction with the Software, you acknowledge and agree, for the benefit of FC and its Authorised Parties, that you shall comply with all export, import, customs, sanctions and other applicable trade-control laws and regulations applicable to you. See Part III (below) for any additional terms and conditions that may apply in your jurisdiction.
2.5.7 WARNING: (1) THE SOFTWARE AND RELEVANT GOODS SUPPLIED BY FC 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 THE 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 CUSTOMISED AND DIFFERS FROM FC’S TESTING PLATFORMS AND BECAUSE A USER OR APPLICATION DESIGNER MAY USE THE SOFTWARE AND/OR GOODS IN COMBINATION WITH OTHER PRODUCTS IN A MANNER NOT EVALUATED OR CONTEMPLATED BY FC, THE USER OR APPLICATION DESIGNER IS ULTIMATELY RESPONSIBLE FOR VERIFYING AND VALIDATING THE SUITABILITY OF THE 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.
2.6 NEW SOFTWARE: UPDATES AND UPGRADES
2.6.1 UPDATES, UPGRADES, PLUGINS AND SNAP-INS: You acknowledge that FC may, but is under no obligation to, from time to time provide you with additional features, functions, patches, service packs, updates or other similar files related to the Software (referred collectively herein as “Updates”). In addition to Updates, you acknowledge that FC may, but is under no obligation to, produce additional plugins, snap-ins, and/or conversions, or other similar files related to the Software available for you in the form of a version upgrade to purchase at your discretion, (referred collectively herein as “Upgrades”). You acknowledge and agree that FC need not provide you with advance notice of any such Updates and/or Upgrades. FC does not warrant or guarantee that any Update or Upgrade will maintain compatibility with any particular operating system, hardware platform, machine, device or third-party software, and does not warrant that any version of the Software will remain compatible with any future operating system, hardware platform, machine, device or third-party software release. For a Perpetual License, this Section 2.6.1 is subject to FC’s commitment to make reasonable maintenance Updates available during the Supported Period under Section 1.2.
2.6.1.1 COMPATIBILITY SCOPE: Compatibility of the Software is limited to the operating systems, hardware platforms, firmware versions, device drivers, security frameworks and configurations that are supported by FC at the time of purchase of your License, as set out in the Software’s documentation and on its website, or that FC later expressly identifies as supported for that licensed version. FC does not warrant compatibility with any operating system, hardware platform, firmware, driver, security framework, API or other technology released, updated or modified after the date of purchase, or with any configuration not supported by FC at that date, unless and to the extent FC later expressly identifies that technology or configuration as supported for that licensed version.
2.6.2 MANDATORY PREREQUISITE: To obtain and use an Update or Upgrade for the Software, you must first be Licensed to use the Software that is eligible for an Update or Upgrade and you acknowledge and agree with FC that: (i) in the case of an Upgrade, the License Agreement accompanying the Upgrade takes the place of any prior License Agreement for the Software for which you obtained the Upgrade, where its terms were disclosed before the Upgrade was obtained or installed, and is not revoked or set back by removing or uninstalling the Upgrade; and (ii) in the case of an Update, the Update remains governed by the License Agreement applicable to the licensed version, except for any additional terms strictly necessary for new optional functionality included in that Update. To avoid any doubt, a License is not eligible to serve as the qualifying License for an Update or Upgrade where that License has been terminated, is suspended for an uncured breach or for non-payment, or has an amount then due and payable in respect of that License which remains unpaid, unless FC expressly permits the Update or Upgrade or mandatory applicable law requires otherwise. Mere temporary technical unavailability of a validly paid License does not of itself make that License ineligible for an Update or Upgrade.
2.6.3 LIVE UPDATE AND SERVICE PACKS: Pursuant to sections 2.6.1 and 2.6.2 (above) FC may, but is under no obligation to, provide Updates as an Internet-based service commonly referred to as “Live Update” or a “Service Pack” for use with the Software. Except as otherwise noted in materials accompanying these services and, in the Software, FC may modify the Live Update and/or Service Pack process/technology and/or change or cancel these services at any time FC sees fit without notice. Any collection or transmission of information through Live Update or Service Packs is governed by Section 2.3.3, the applicable Privacy Policy, applicable law and your applicable Opt-Out or withdrawal rights. By using Live Update and/or Service Packs you agree: (i) to be responsible for your Internet service provider fees, telecommunications and all other charges that may apply as a result of using Live Update and/or Service Packs; and (ii) all risk of damage to the Software during transmission and download is assumed by you. If you do not agree with the above terms and conditions, do not use Live Update.
2.6.4 USE OF UPDATES AND UPGRADES: After you install Updates or Upgrades, you may not continue to use any previous version of the Software you applied such Updates or Upgrades to and acknowledge and agree with FC that (i) an Update or Upgrade and any previous version of the same authorised Copy are installed on the same Computer, unless that authorised Copy is properly transferred pursuant to Section 2.4.4 (above); and (ii) the previous versions or copies thereof are not assignable or transferable to another or third party; and (iii) you acknowledge that FC has no obligation to support any previous version(s) of the Software and that any support FC may at its discretion have been providing for such previous version(s) shall cease upon the availability of Updates or installation of Upgrades; and (iv) No further use of the previous version(s) is permitted after installation of Updates or Upgrades; and (v) FC may reissue or replace the applicable PSN, SLN or SPN and cancel, deactivate or unregister the corresponding previous identifier; and (vi) Upgrades may be licensed under additional terms in accordance with Section 2.6.2, and an Update may contain additional terms only to the limited extent expressly permitted by Section 2.6.2 for new optional functionality. Notwithstanding the foregoing, for a Perpetual License: (a) support for the licensed version does not cease merely because an Update or Upgrade becomes available, and remains subject to the Supported Period under Section 1.2; and (b) you may retain one archival copy of the immediately previous version solely for rollback purposes, provided the previous and current versions are not used concurrently.
2.6.4.1 EFFECT OF UPGRADE AND RESALE OF PREVIOUS OR EARLIER SOFTWARE LICENSE(S): PURSUANT TO SECTION 2.6.4 (ABOVE), WHEN YOU UPGRADE THE SOFTWARE, THE SOFTWARE LICENSE FOR THE PREVIOUS OR EARLIER VERSION IS CANCELLED AND REPLACED BY THE SOFTWARE LICENSE FOR THE UPGRADED VERSION. FC MAY ISSUE A NEW OR REPLACEMENT LICENSE IDENTIFIER FOR THE UPGRADED LICENSE, INCLUDING A NEW PSN, SLN, SPN, CUSTOMER NUMBER OR OTHER APPLICABLE LICENSE IDENTIFIER, AND MAY CANCEL, DEACTIVATE OR DEREGISTER THE IDENTIFIER ASSOCIATED WITH THE PREVIOUS OR EARLIER LICENSE. THE PREVIOUS OR EARLIER LICENSE DOES NOT CONTINUE AS A SEPARATE OR INDEPENDENT LICENSE AND CONFERS NO SEPARATE RIGHT TO USE, SELL, RELICENSE, SUBLICENSE, ASSIGN, GIVE AWAY OR TRANSFER THAT PREVIOUS OR EARLIER VERSION. TO AVOID ANY DOUBT, YOU ARE NOT PERMITTED TO SELL, RELICENSE, SUBLICENSE, ASSIGN, GIVE AWAY OR TRANSFER ANY PREVIOUS OR EARLIER SOFTWARE LICENSE THAT HAS BEEN REPLACED BY AN UPGRADED LICENSE. ONCE THE PREVIOUS OR EARLIER SOFTWARE LICENSE HAS BEEN CANCELLED AND REPLACED BY THE UPGRADED LICENSE, THAT PREVIOUS OR EARLIER LICENSE DOES NOT REVIVE, AND DOES NOT AGAIN BECOME AVAILABLE FOR USE, MERELY BECAUSE THE UPGRADED LICENSE LATER EXPIRES, IS CANCELLED, SUSPENDED, TERMINATED OR RESTRICTED, BECOMES UNPAID, IS SUBJECT TO A CHARGE-BACK OR PAYMENT REVERSAL, OR OTHERWISE CEASES TO BE AVAILABLE FOR USE, EXCEPT WHERE FC EXPRESSLY AGREES OTHERWISE OR MANDATORY APPLICABLE LAW REQUIRES OTHERWISE. THIS PARAGRAPH DOES NOT LIMIT THE ARCHIVAL ROLLBACK COPY PERMITTED FOR A PERPETUAL LICENSE UNDER SECTION 2.6.4.
2.7 RESTRICTIONS
2.7.1 NOTICES: You may not copy or make Copies of the Software except as expressly permitted under this Agreement. Any permitted Copy of the Software that you make must contain the same copyright and other proprietary notices that appear on or in the Software.
2.7.2 NO MODIFICATIONS: YOU MAY NOT (I) MODIFY, ADAPT OR TRANSLATE THE SOFTWARE, (II) DECOMPILE, DISASSEMBLE, REVERSE ENGINEER OR OTHERWISE ATTEMPT TO DISCOVER THE SOURCE CODE OF THE SOFTWARE, INCLUDING WITHOUT LIMITATION ANY MACHINE DRIVERS, COMMUNICATION PROTOCOLS, HARDWARE INTEGRATION MODULES, OR DEVICE PROFILES CONTAINED IN OR DISTRIBUTED WITH THE SOFTWARE, (III) MODIFY THE SOFTWARE OR MERGE ALL OR ANY PART OF THE SOFTWARE WITH ANOTHER PRODUCT OR PROGRAM, (IV) IF APPLICABLE, ATTEMPT TO, OR CIRCUMVENT THE ACTIVATION AND/OR THE REGISTRATION MECHANISMS, AND/OR THE HARDWARE SECURITY DEVICE, EXCEPT AS PERMITTED IN SECTIONS 7.5.1 THROUGH 7.5.12 AND TO THE EXTENT YOU MAY BE EXPRESSLY PERMITTED UNDER APPLICABLE LAW TO DECOMPILE ONLY IN ORDER TO ACHIEVE INTEROPERABILITY WITH THE SOFTWARE.
2.7.3 NO UNBUNDLING: The Software may include various applications, components, modules, other software titles, plugins, snap-ins and utilities, and may be provided to you on multiple or various media or in multiple copies. Notwithstanding this, the Software is produced and intended to be used as a single product on up to two (2) compatible Computers, or on such greater Permitted Number of compatible Computers as may be expressly specified for the applicable Software License or under a valid Volume License Agreement with FC. You are not required to use or install all parts of the Software; however, you may not unbundle any part of the Software for separate use on different Computers beyond the number permitted under the applicable Software License. You may not unbundle or repackage the Software for distribution, transfer or resale to a third party except as expressly permitted under this Agreement. WHERE THE SOFTWARE IS SUPPLIED, LICENSED OR INCLUDED AS OEM SOFTWARE OR IS OTHERWISE BUNDLED WITH AND ASSIGNED TO PARTICULAR OUTPUT HARDWARE, THE SOFTWARE LICENSE AND SOFTWARE ARE BUNDLED WITH THAT OUTPUT HARDWARE AND MAY NOT BE SEPARATED FROM, SOLD, ASSIGNED OR TRANSFERRED INDEPENDENTLY OF IT. IF YOU SELL, ASSIGN OR OTHERWISE TRANSFER THAT OUTPUT HARDWARE, YOU MUST ALSO TRANSFER THE ASSOCIATED SOFTWARE LICENSE AND SOFTWARE WITH THAT OUTPUT HARDWARE IN ACCORDANCE WITH THE APPLICABLE TRANSFER PROVISIONS OF THIS AGREEMENT, AND YOU MUST NOT RETAIN OR CONTINUE TO USE ANY COPY OR LICENSE IDENTIFIER ASSOCIATED WITH THAT SOFTWARE.
2.7.4 INSTALLATION METHOD: For any installation of the Software on a Windows-based Computer, the installation must be initiated and completed interactively by a user with administrator privileges on that Computer.
2.8 LIMITED WARRANTY: FC WARRANTS TO THE FIRST USER THAT THE SOFTWARE WILL PERFORM SUBSTANTIALLY IN ACCORDANCE WITH THE SOFTWARE’S PUBLISHED FUNCTIONALITY AND WILL BE FREE FROM DEFECT IN MATERIALS AND WORKMANSHIP FOR NINETY (90) DAYS FROM THE DATE THE FIRST USER OBTAINS THE SOFTWARE LICENSE, WHETHER THE SOFTWARE LICENSE IS PURCHASED SEPARATELY OR IS SUPPLIED, INCLUDED OR BUNDLED WITH HARDWARE AS OEM SOFTWARE. WHERE OEM SOFTWARE IS SUPPLIED, INCLUDED OR BUNDLED WITH HARDWARE, THE NINETY (90) DAY PERIOD COMMENCES ON THE DATE THE FIRST USER PURCHASES OR OTHERWISE ACQUIRES THE HARDWARE WITH WHICH THE SOFTWARE LICENSE IS SUPPLIED, INCLUDED OR BUNDLED. THIS LIMITED WARRANTY APPLIES ONLY WHEN THE SOFTWARE IS USED WITH THE SUPPORTED OPERATING SYSTEMS, FIRMWARE AND HARDWARE CONFIGURATION FOR THE SOFTWARE AS SET OUT IN THE SOFTWARE’S DOCUMENTATION AND/OR AT THE SOFTWARE’S WEBSITE. THE NINETY (90) DAY LIMITED WARRANTY IN THIS SECTION 2.8 OPERATES INDEPENDENTLY OF THE SUPPORTED PERIOD APPLICABLE TO A PERPETUAL LICENSE UNDER SECTION 1.2: OBTAINING A SOFTWARE LICENSE DOES NOT RESTART, RENEW OR EXTEND THE SUPPORTED PERIOD, WHICH CONTINUES TO RUN FROM THE DATE THE LICENSED VERSION WAS FIRST RELEASED FOR LICENSING TO THE PUBLIC. WHERE THIS LIMITED WARRANTY IS VALIDLY GRANTED BEFORE THE SUPPORTED PERIOD EXPIRES, IT CONTINUES FOR ITS FULL NINETY (90) DAY PERIOD, AND EXPIRY OF THE SUPPORTED PERIOD DURING THAT PERIOD DOES NOT PREMATURELY TERMINATE THIS LIMITED WARRANTY. CONTINUATION OF THIS LIMITED WARRANTY AFTER THE SUPPORTED PERIOD EXPIRES DOES NOT REVIVE, RESTART OR EXTEND TECHNICAL SUPPORT, UPDATES, ANY COMPATIBILITY COMMITMENT, PRODUCT LIFE OR THE SUPPORTED PERIOD, AND DURING ANY REMAINING WARRANTY PERIOD FC IS RESPONSIBLE ONLY FOR THE WARRANTY REMEDIES PROVIDED UNDER SECTION 2.8.2. NOTHING IN THIS PARAGRAPH EXCLUDES, RESTRICTS OR MODIFIES ANY RIGHT OR REMEDY THAT CANNOT LAWFULLY BE EXCLUDED, RESTRICTED OR MODIFIED.
2.8.1 EXCLUSIONS FROM WARRANTY: THIS LIMITED WARRANTY DOES NOT APPLY TO: (1) BETA, DEMONSTRATION, EVALUATION, EXTRAS, FREE-TRIAL, PRE-RELEASE, PRODUCT SAMPLER, TRY-OUT, SDK, USED (SECOND-HAND), OR NOT FOR RESALE VERSIONS OF THE SOFTWARE, OR ANY ONLINE SERVICES, TECHNICAL SUPPORT OR HELP, LIVE UPDATE, INTERNET SITES OR OTHER RELATED PRODUCTS OR SERVICES PROVIDED, OPERATED, ADMINISTERED OR MADE AVAILABLE BY OR ON BEHALF OF FC; AND/OR (2) EXCEPT TO THE EXTENT A PARTICULAR ITEM IS EXPRESSLY IDENTIFIED BY FC AS SUPPORTED, COMPATIBILITY AND/OR COMPLIANCE, USE OF OR WITH ANY THIRD PARTY SOFTWARE OR HARDWARE INCLUDING BUT NOT LIMITED TO (I) SOFTWARE FILES AND/OR FORMATS; OR (II) CNC MACHINES, ENGRAVERS, LASER MACHINES, PLOTTERS, LARGE/WIDE FORMAT PRINTERS, PRINTERS, ROUTERS, VINYL CUTTERS OR ANY OTHER ELECTRONIC DEVICE; AND/OR (3) PROBLEMS CAUSED BY: (I) YOUR ACTS OR OMISSIONS; (II) THE ACTS OR OMISSIONS OF OTHERS, INCLUDING THIRD PARTIES; (III) MALICIOUS SOFTWARE, INCLUDING BUT NOT LIMITED TO MALWARE, TROJANS, VIRUSES OR WORMS; (IV) INCORRECTLY OR IMPROPERLY INSTALLED, CONFIGURED, OPERATED OR MAINTAINED THIRD PARTY HARDWARE, FIRMWARE OR SOFTWARE, INCLUDING BUT NOT LIMITED TO THE OPERATING SYSTEM, ANTIVIRUS SOFTWARE OR ANY INTERNAL OR EXTERNAL NETWORK; OR (V) ANY EVENT BEYOND FC’S REASONABLE CONTROL. FURTHER, YOU ACKNOWLEDGE AND AGREE THAT INSUBSTANTIAL OR MINOR VARIATION OF PERFORMANCE FROM THE SOFTWARE’S PUBLISHED FUNCTIONALITY, OR YOUR INABILITY TO CORRECTLY USE THE SOFTWARE OR OPERATING SYSTEM, INCLUDING DUE TO A LACK OF FAMILIARITY WITH THE SOFTWARE OR OPERATING SYSTEM, DOES NOT OF ITSELF ESTABLISH A WARRANTY RIGHT OR CLAIM.
2.8.1.1 NO GUARANTEE: EXCEPT TO THE EXTENT THAT A PARTICULAR MAKE, MODEL OR CONFIGURATION IS EXPRESSLY IDENTIFIED BY FC AS SUPPORTED FOR THE LICENSED VERSION, OR IS THE APPROVED OUTPUT HARDWARE WITH WHICH AN OEM OR AUTHORISED RESELLER EDITION WAS SUPPLIED, FC, ITS AUTHORISED PARTIES AND ITS SUPPLIERS DO NOT GUARANTEE OR WARRANT THAT THE SOFTWARE OR EXTRAS WILL (I) SATISFACTORILY WORK WITH, OUTPUT TO, READ FROM, CONTROL, COMMUNICATE WITH OR OTHERWISE OPERATE ANY COMPUTER OR OUTPUT HARDWARE; OR (II) SATISFACTORILY IMPORT OR EXPORT ANY THIRD PARTY FILE FORMAT. FOR THE PURPOSES OF SECTIONS 2.8.1 AND 2.8.1.1, IDENTIFICATION OF A MAKE, MODEL OR CONFIGURATION AS SUPPORTED REFLECTS TESTED COMPATIBILITY UNDER THE APPLICABLE DOCUMENTED CONFIGURATION AS AT THE DATE OF THE OFFICIAL LISTING AND DOES NOT CONSTITUTE A WARRANTY OF UNINTERRUPTED, ERROR-FREE OR CONTINUED OPERATION, INCLUDING FOLLOWING THIRD-PARTY FIRMWARE, DRIVER, HARDWARE, OPERATING SYSTEM, API OR OTHER TECHNOLOGY CHANGES. FC DOES NOT WARRANT OR GUARANTEE THAT TWO OR MORE SEPARATELY LICENSED SOFTWARE PRODUCTS, EDITIONS OR BRANDS PROVIDED BY FC CAN BE INSTALLED, OPERATED OR USED CONCURRENTLY ON THE SAME COMPUTER, OPERATING SYSTEM OR USER ENVIRONMENT, OR THAT THEIR SETTINGS, CONFIGURATION DATA, LICENSING COMPONENTS, REGISTRY ENTRIES OR OTHER SHARED SYSTEM RESOURCES WILL OPERATE INDEPENDENTLY OF ONE ANOTHER, UNLESS SUCH CONCURRENT USE IS EXPRESSLY IDENTIFIED AS SUPPORTED BY FC.
2.8.2 REMEDY FOR BREACH OF WARRANTY: FC WILL, AT NO CHARGE, REPAIR OR REPLACE THE SOFTWARE OR, WHERE APPROPRIATE, REISSUE OR REPLACE THE SOFTWARE LICENSE. IF THE SOFTWARE LICENSE WAS PURCHASED SEPARATELY FROM HARDWARE AND FC CANNOT REPAIR OR REPLACE THE SOFTWARE OR REISSUE OR REPLACE THE SOFTWARE LICENSE, FC WILL REFUND THE AMOUNT ACTUALLY PAID FOR THAT SOFTWARE LICENSE, AS SHOWN ON YOUR PROOF OF PURCHASE. WHERE THE SOFTWARE IS OEM SOFTWARE SUPPLIED, INCLUDED OR BUNDLED WITH HARDWARE, THE SOFTWARE AND SOFTWARE LICENSE FORM PART OF THAT OEM BUNDLE AND NO PART OF THE PURCHASE PRICE OR VALUE OF THE HARDWARE OR OEM BUNDLE SHALL, MERELY BECAUSE THE SOFTWARE WAS INCLUDED WITH IT, BE TREATED AS AN AMOUNT PAID FOR THE SOFTWARE LICENSE. FOR OEM SOFTWARE, THE REMEDY UNDER THIS VOLUNTARY LIMITED WARRANTY IS REPAIR OR REPLACEMENT OF THE SOFTWARE, REISSUE OR REPLACEMENT OF THE SOFTWARE LICENSE OR, WHERE THE SAME SOFTWARE IS NO LONGER REASONABLY AVAILABLE, PROVISION OF SOFTWARE WITH SUBSTANTIALLY EQUIVALENT FUNCTIONALITY, AS DETERMINED REASONABLY BY FC. NO SEPARATE CASH REFUND FOR OEM SOFTWARE IS PAYABLE UNDER THIS VOLUNTARY LIMITED WARRANTY UNLESS FC EXPRESSLY AGREES OTHERWISE. FC WILL ALSO REPAIR OR REPLACE ANY AFFECTED PATCH, SERVICE PACK, UPDATE, UPGRADE OR CONVERSION SOFTWARE AT NO CHARGE. WHERE AN AFFECTED ITEM WAS PURCHASED SEPARATELY FOR AN IDENTIFIABLE PRICE AND FC CANNOT REPAIR OR REPLACE IT, FC WILL REFUND THE AMOUNT ACTUALLY PAID FOR THAT ITEM. TO OBTAIN ANY REFUND UNDER THIS VOLUNTARY LIMITED WARRANTY, YOU MUST UNINSTALL AND, WHERE APPLICABLE, DEACTIVATE AND/OR DEREGISTER THE SOFTWARE AND RETURN ANY MEDIA AND OTHER ASSOCIATED MATERIALS, INCLUDING THE HARDWARE SECURITY DEVICE (IF APPLICABLE), AS REASONABLY DIRECTED BY FC THROUGH THE APPLICABLE WARRANTY CLAIM CHANNEL, WITH PROOF OF PURCHASE. THE REMEDIES IN THIS SECTION ARE YOUR SOLE CONTRACTUAL REMEDIES UNDER THE VOLUNTARY LIMITED WARRANTY, SUBJECT ALWAYS TO ANY RIGHT OR REMEDY THAT CANNOT LAWFULLY BE EXCLUDED, RESTRICTED OR MODIFIED.
2.8.3 AUSTRALIAN CONSUMER RIGHTS NOT AFFECTED: WHERE THE AUSTRALIAN CONSUMER LAW APPLIES TO YOUR ACQUISITION OF THE SOFTWARE, THE FOLLOWING PRESCRIBED NOTICE APPLIES: OUR GOODS COME WITH GUARANTEES THAT CANNOT BE EXCLUDED UNDER THE AUSTRALIAN CONSUMER LAW. YOU ARE ENTITLED TO A REPLACEMENT OR REFUND FOR A MAJOR FAILURE AND COMPENSATION FOR ANY OTHER REASONABLY FORESEEABLE LOSS OR DAMAGE. YOU ARE ALSO ENTITLED TO HAVE THE GOODS REPAIRED OR REPLACED IF THE GOODS FAIL TO BE OF ACCEPTABLE QUALITY AND THE FAILURE DOES NOT AMOUNT TO A MAJOR FAILURE. IN ADDITION TO THOSE STATUTORY RIGHTS, THE SOFTWARE COMES WITH THE NINETY (90) DAY VOLUNTARY LIMITED WARRANTY SET OUT IN SECTION 2.8, GIVEN BY FC. FC’S WARRANTOR DETAILS, BUSINESS ADDRESS, TELEPHONE NUMBER, EMAIL ADDRESS AND WARRANTY CLAIM CHANNEL ARE SET OUT IN SECTION 9.3. A CLAIM UNDER THE VOLUNTARY LIMITED WARRANTY MUST INCLUDE THE SOFTWARE NAME, RELEVANT PSN, SLN, SPN OR HARDWARE SERIAL NUMBER WHERE APPLICABLE, PROOF OF PURCHASE AND REASONABLE DETAILS OF THE CLAIM. FC WILL BEAR THE REASONABLE EXPENSES OF MAKING A VALID CLAIM UNDER THE VOLUNTARY LIMITED WARRANTY. TO CLAIM REIMBURSEMENT OF REASONABLE EXPENSES INCURRED IN MAKING THE CLAIM, YOU MUST SUBMIT REASONABLE EVIDENCE OF THOSE EXPENSES, INCLUDING RECEIPTS WHERE AVAILABLE, THROUGH THE APPLICABLE WARRANTY CLAIM CHANNEL AT THE TIME OF THE CLAIM OR WITHIN A REASONABLE TIME AFTER THE EXPENSE IS INCURRED. THE BENEFITS PROVIDED BY THE VOLUNTARY LIMITED WARRANTY ARE IN ADDITION TO OTHER RIGHTS AND REMEDIES AVAILABLE TO YOU UNDER APPLICABLE LAW. THE NINETY (90) DAY PERIOD AND THE CLAIM PROCEDURE IN SECTION 2.8.4 APPLY ONLY TO THE VOLUNTARY LIMITED WARRANTY AND DO NOT LIMIT THE TIME FOR, OR OTHERWISE APPLY TO, ANY CLAIM UNDER THE AUSTRALIAN CONSUMER LAW OR OTHER STATUTORY RIGHTS.
2.8.3.1 NON-AUSTRALIAN CONSUMER RIGHTS NOT AFFECTED: YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS UNDER YOUR JURISDICTION, WHICH THIS AGREEMENT CANNOT CHANGE, SEE SECTION 8 FOR SPECIFIC PROVISIONS RELATED TO OTHER JURISDICTIONS WHICH MAY BE APPLICABLE TO YOU.
2.8.4 WARRANTY PROCEDURES: ALL CLAIMS UNDER THE VOLUNTARY NINETY (90) DAY LIMITED WARRANTY MUST BE MADE, WITH PROOF OF PURCHASE, TO FC OR THROUGH A WARRANTY CLAIM CHANNEL IDENTIFIED IN SECTION 9.3 OR OTHERWISE EXPRESSLY DESIGNATED BY FC, WITHIN THE NINETY (90) DAY PERIOD. WHERE THE SOFTWARE WAS OBTAINED THROUGH AN AUTHORISED CHANNEL PARTICIPANT, FC MAY DESIGNATE THAT AUTHORISED CHANNEL PARTICIPANT OR AN AUTHORISED SERVICE PROVIDER TO RECEIVE OR ADMINISTER THE CLAIM ON ITS BEHALF. RECEIPT OR ADMINISTRATION OF A CLAIM BY AN AUTHORISED CHANNEL PARTICIPANT, AUTHORISED SERVICE PROVIDER OR THIRD-PARTY SERVICE PLATFORM DOES NOT MAKE THAT PERSON OR ENTITY THE WARRANTOR. THIS PROCEDURE APPLIES ONLY TO THE VOLUNTARY LIMITED WARRANTY AND DOES NOT LIMIT ANY RIGHT OR REMEDY AVAILABLE UNDER APPLICABLE LAW.
2.8.5 STATUTORY RIGHTS SAVINGS CLAUSE: NOTHING IN THIS AGREEMENT EXCLUDES, RESTRICTS OR MODIFIES ANY RIGHT OR REMEDY, OR ANY GUARANTEE, WARRANTY OR OTHER TERM OR CONDITION, IMPLIED OR IMPOSED BY ANY LEGISLATION TO THE EXTENT THAT SUCH EXCLUSION, RESTRICTION OR MODIFICATION WOULD RENDER ANY PROVISION OF THIS AGREEMENT VOID OR UNENFORCEABLE OR WOULD OTHERWISE CONTRAVENE APPLICABLE LAW. WHERE ANY SUCH NON-EXCLUDABLE RIGHT, REMEDY, GUARANTEE, WARRANTY OR OTHER TERM OR CONDITION APPLIES, FC’S LIABILITY IS LIMITED, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN THE MANNER PROVIDED IN SECTION 2.8 AND ELSEWHERE IN THIS AGREEMENT. THIS SAVINGS CLAUSE DOES NOT EXPAND, CREATE OR IMPLY ANY RIGHTS OR REMEDIES BEYOND THOSE WHICH CANNOT LAWFULLY BE EXCLUDED.
2.9 DISCLAIMER: THE FOREGOING LIMITED WARRANTY IS THE ONLY WARRANTY MADE BY FC UNDER THIS AGREEMENT AND STATES THE SOLE AND EXCLUSIVE CONTRACTUAL REMEDIES FOR ANY BREACH OF THAT LIMITED WARRANTY, SUBJECT ALWAYS TO ANY RIGHT OR REMEDY THAT CANNOT LAWFULLY BE EXCLUDED, RESTRICTED OR MODIFIED. EXCEPT FOR THE FOREGOING LIMITED WARRANTY AND FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, THE SOFTWARE IS PROVIDED ON AN AS-IS BASIS, WITHOUT ANY OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, COURSE OF DEALING, CUSTOM, EQUITY, USAGE, OR UNDER ANY THEORY OF LAW, OR OTHERWISE AS TO ANY MATTER, INCLUDING, BUT NOT LIMITED TO PERFORMANCE, SECURITY, WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, QUIET ENJOYMENT, MERCHANTABLE QUALITY, SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FC AND ITS AUTHORISED PARTIES DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY YOU. WHERE ANY NON-EXCLUDABLE TERMS ARE IMPLIED INTO THIS LICENSE BY OPERATION OF LAW, THEN TO THE EXTENT PERMISSIBLE BY LAW (INCLUDING, IN AUSTRALIA, ONLY AS PERMITTED BY SECTION 64A OF THE AUSTRALIAN CONSUMER LAW), FC LIMITS ITS LIABILITY TO, AT ITS ABSOLUTE DISCRETION, THE REPAIR OR REPLACEMENT OF THE GOODS OR SERVICES, THE RE-SUPPLY OF EQUIVALENT GOODS OR SERVICES, OR THE COST THEREOF. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS, SEE SECTION 8 FOR SPECIFIC PROVISIONS RELATED TO OTHER JURISDICTIONS WHICH MAY BE APPLICABLE TO YOU.
2.10 LIMITATION OF LIABILITY: EXCEPT FOR THE REMEDIES EXPRESSLY PROVIDED IN SECTION 2.8.2, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL FC, ITS AUTHORISED PARTIES OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS WHATSOEVER, HOWEVER CAUSED AND WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, STRICT LIABILITY, EQUITY, RESTITUTION, MISREPRESENTATION OR OTHERWISE, 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 OUT OF OR IN CONNECTION WITH THE SOFTWARE, THE LICENSE OR THIS AGREEMENT, EVEN IF FC, ITS AUTHORISED PARTIES, ITS SUPPLIERS AND/OR A REPRESENTATIVE OF FC HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. THE AGGREGATE LIABILITY OF FC, ITS AUTHORISED PARTIES AND ITS SUPPLIERS FOR ALL CLAIMS, CAUSES OF ACTION AND THEORIES OF LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, THE LICENSE OR THIS AGREEMENT, TAKEN TOGETHER AND NOT SEPARATELY PER CLAIM, EVENT OR CAUSE OF ACTION, SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF ANY; PROVIDED THAT, WHERE THE SOFTWARE IS OEM SOFTWARE SUPPLIED, INCLUDED OR BUNDLED WITH HARDWARE AND NO SEPARATE SOFTWARE LICENSE PRICE WAS CHARGED TO THE LICENSEE, NO PART OF THE PURCHASE PRICE OR VALUE OF THE HARDWARE OR OEM BUNDLE SHALL BE TREATED AS AN AMOUNT PAID FOR THIS LICENSE FOR THE PURPOSES OF THIS CONTRACTUAL LIMITATION OF LIABILITY. FOR SUBSCRIPTION SOFTWARE, THE AGGREGATE LIABILITY UNDER THIS SECTION IS LIMITED TO THE SUBSCRIPTION FEES ACTUALLY PAID FOR THE AFFECTED LICENSE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT FIRST GIVING RISE TO THE CLAIM OR, IF THE SUBSCRIPTION HAS EXISTED FOR LESS THAN TWELVE (12) MONTHS, THE SUBSCRIPTION FEES PAID SINCE COMMENCEMENT, SUBJECT ALWAYS TO MANDATORY APPLICABLE LAW. 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. FC IS ACTING ON BEHALF OF ITS AUTHORISED PARTIES AND ITS SUPPLIERS FOR THE PURPOSE OF DISCLAIMING, EXCLUDING AND LIMITING OBLIGATIONS, WARRANTIES AND LIABILITY WITH RESPECT TO THIS LICENSE ONLY AND FOR NO OTHER PURPOSE OR RESPECT. NOTHING IN THIS SECTION 2.10: (I) LIMITS FC’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY ITS OWN NEGLIGENCE OR FOR ITS OWN FRAUD OR FRAUDULENT MISREPRESENTATION; OR (II) EXCLUDES OR LIMITS THE LIABILITY OF ANY PERSON SEEKING TO RELY ON THIS SECTION TO THE EXTENT THAT SUCH LIABILITY CANNOT LAWFULLY BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, INCLUDING UNDER ANY APPLICABLE UNFAIR CONTRACT TERMS, SMALL BUSINESS OR CONSUMER PROTECTION LAWS. THIS LIMITATION OF LIABILITY MAY NOT BE VALID IN SOME JURISDICTIONS, SEE SECTION 8 FOR SPECIFIC PROVISIONS RELATED TO OTHER JURISDICTIONS WHICH MAY BE APPLICABLE TO YOU.
2.10.1 YOUR RESPONSIBILITY TO ACT REASONABLY: WITHOUT LIMITING OR OTHERWISE AFFECTING SECTION 2.10 OR ANY OTHER PROVISION OF THIS AGREEMENT, YOU MUST TAKE ALL REASONABLE STEPS TO AVOID, MINIMISE OR MITIGATE ANY LOSS OR DAMAGE ARISING FROM OR IN CONNECTION WITH THE SOFTWARE, INCLUDING BY: (I) MAKING AND MAINTAINING APPROPRIATE BACKUP COPIES OF YOUR COMPUTER DATA AND THE SOFTWARE’S OUTPUT FILES (YOUR WORKS), AND, WHERE APPLICABLE, THE BACKUP COPY OF THE SOFTWARE PERMITTED UNDER SECTION 2.1.5; (II) INSTALLING MAINTENANCE AND SECURITY UPDATES MADE AVAILABLE FOR THE LICENSED VERSION WHERE REASONABLY APPROPRIATE; (III) TAKING REASONABLE MEASURES TO MAINTAIN YOUR COMPUTER’S OPERATING SYSTEM IN A SECURE CONFIGURATION THAT REMAINS COMPATIBLE WITH THE LICENSED VERSION; (IV) TAKING REASONABLE MEASURES TO PROTECT YOUR COMPUTER AGAINST MALICIOUS SOFTWARE; AND (V) MAINTAINING INTERNET ACCESS WHERE REASONABLY REQUIRED FOR ACTIVATION, VALIDATION, UPDATES OR SUPPORTED FUNCTIONALITY.
2.11 INFRINGEMENT CLAIMS
2.11.1 WITHIN AUSTRALIAN JURISDICTION: This Section does not apply to any Content Files. Where a third party commences or threatens litigation alleging that the Software or any part of it infringes or otherwise violates an Australian patent, copyright, registered trade mark or other Intellectual Property right (in this Section, an "infringement"), FC may, at its option and without admitting liability, elect to assume control of the defence or settlement of that claim, and may pay any final award of damages made against you to the extent directly attributable to that alleged infringement and any reasonable expenses that you incur at FC's written request, or provide such other remedy, payment or assistance as FC expressly agrees in writing. No contractual remedy is available under this Section unless: (i) the allegation is not frivolous or vexatious and has sufficient legal merit to warrant a defence; (ii) the alleged infringement would have arisen irrespective of any use of the Software in combination with equipment, software or devices not supplied or approved by FC and does not arise from any unauthorised modification of the Software; (iii) you promptly notify FC by registered mail or electronic notice, using the applicable legal or support contact details identified in Section 9.3 or otherwise expressly designated by FC, and, where reasonably practicable, do so within fourteen (14) days after you become aware of the claim or threatened claim; (iv) you cooperate fully with FC and provide such authority, assistance and information as it reasonably requires to defend or settle the claim; (v) you have not used or applied the Software in any manner that infringes or otherwise violates a third party's rights or Intellectual Property where you knew, or reasonably ought to have known, that it did so; (vi) you have not used the Software contrary to law; and (vii) you have not acted in bad faith or remained wilfully blind to unlawful conduct relevant to the alleged infringement. Except where FC expressly agrees otherwise in writing or mandatory applicable law requires otherwise, FC has no obligation to assume or fund your defence, pay any judgment, settlement, legal cost or other expense, procure continuing use rights or provide any other remedy. Where FC elects to participate in or assume the defence or settlement of a claim, it retains exclusive control over that defence or settlement and over any replacement, modification, withdrawal or contractual refund it elects to provide. You must not make any settlement, admission or concession that binds or prejudices FC without its prior written consent. If the Software is held by a court of competent jurisdiction to infringe or otherwise violate an Australian patent, copyright, registered trade mark or other Intellectual Property right and its continued use is enjoined, FC may, at its option and absolute discretion and without admitting liability: (i) procure for you the right to continue using the affected Software; (ii) replace or modify the affected Software so that it no longer infringes; or (iii) withdraw the affected Software and refund the amount, if any, actually paid by you for the affected Software License, excluding any amount paid for hardware, equipment, Content Files, services or other bundled goods or services. Where no separate amount was paid for the affected Software License, no contractual refund is payable under this Section, except to the extent mandatory applicable law requires otherwise. Any remedy FC elects to provide under this Section is your sole contractual remedy for infringement of any third-party Intellectual Property within Australian jurisdiction relating to the Software licensed to you under this Agreement and constitutes FC's entire contractual liability and responsibility for that infringement. This Section is in lieu of any other contractual warranty against infringement and excludes any warranty, condition, guarantee, term or other obligation implied or imposed by law to the maximum extent permitted by law. For the avoidance of doubt, no person other than FC assumes any obligation or liability under this Section, except to the extent mandatory applicable law requires otherwise. Nothing in this Section excludes, restricts or modifies any right, guarantee, remedy or liability that cannot lawfully be excluded, restricted or modified.
2.11.2 OUTSIDE AUSTRALIAN JURISDICTION: This Section does not apply to any Content Files. FC gives no warranty or guarantee that the Software does not infringe or otherwise violate any patent, copyright, trade mark or other Intellectual Property in any jurisdiction outside Australia (in this Section, an "infringement") and, to the extent permitted by applicable law, you assume all risk and liability associated with importing, downloading, obtaining or using the Software in your jurisdiction. You warrant to FC, that you will not import, download, obtain or use the Software where you know, or reasonably ought to know, that doing so infringes or otherwise violates a third party's Intellectual Property, and you acknowledge that doing so constitutes a material breach of this Agreement. Where the Software has been imported, downloaded, supplied or otherwise made available for use in your jurisdiction, no contractual remedy is available under this Section unless: (i) you obtain at your own cost written opinions from at least two independent legal practitioners qualified in the relevant jurisdiction, each concluding on a sound legal basis that the Software infringes, is reasonably likely to infringe, or otherwise violates a third party's Intellectual Property in that jurisdiction, and provide those opinions and any other reasonable written evidence of the alleged or potential infringement to FC; (ii) you promptly notify FC by registered mail or electronic notice, using the applicable legal or support contact details identified in Section 9.3 or otherwise expressly designated by FC, and, where reasonably practicable, do so within thirty (30) days after you become aware of the alleged or potential infringement; (iii) you have not used or applied the Software in any manner that infringes or otherwise violates a third party's rights or Intellectual Property where you knew, or reasonably ought to have known, that it did so; (iv) you have not used the Software contrary to law; and (v) you have not acted in bad faith or remained wilfully blind to unlawful conduct relevant to the alleged infringement. Except where FC expressly agrees otherwise in writing or mandatory applicable law requires otherwise, FC has no obligation to assume or fund your defence, pay any judgment, settlement, legal cost or other expense, procure continuing use rights or provide any other remedy. Where FC elects to participate in or assume the defence or settlement of a claim, it retains exclusive control over that defence or settlement and over any replacement, modification, withdrawal or contractual refund it elects to provide. You must not make any settlement, admission or concession that binds or prejudices FC without its prior written consent. Where FC elects to provide a remedy under this Section, it may, at its option and absolute discretion and without admitting liability: (i) procure for you the right to continue using the affected Software; (ii) replace or modify the affected Software so that it no longer infringes; or (iii) withdraw the affected Software and refund the amount, if any, actually paid by you for the affected Software License, excluding any amount paid for hardware, equipment, Content Files, services or other bundled goods or services. Where no separate amount was paid for the affected Software License, no contractual refund is payable under this Section, except to the extent mandatory applicable law requires otherwise. Any remedy FC elects to provide under this Section is your sole contractual remedy for infringement of any third-party Intellectual Property outside Australian jurisdiction relating to the Software licensed to you under this Agreement and constitutes FC's entire contractual liability and responsibility for that infringement. This Section is in lieu of any other contractual warranty against infringement and excludes any warranty, condition, guarantee, term or other obligation implied or imposed by law to the maximum extent permitted by law. For the avoidance of doubt, no person other than FC assumes any obligation or liability under this Section, except to the extent mandatory applicable law requires otherwise. Nothing in this Section excludes, restricts or modifies any right, guarantee, remedy or liability that cannot lawfully be excluded, restricted or modified.
2.12 CONTENT FILES: You acknowledge and agree that FC provides or makes available the Content Files to you for demonstration and training purposes only and does not warrant or guarantee that the Content Files do not infringe any patent, copyright, trade mark or similar Intellectual Property. To the extent permitted by applicable law, FC and its Authorised Parties and Suppliers disclaim all liability for the provision or availability of the Content Files and any use thereof. You agree to assume all risk and liability when incorporating the Content Files into your work(s) or Output File(s) and shall indemnify and hold harmless FC and its Authorised Parties and Suppliers from and against any claim, action, suit, proceeding, cost, expense, damage or liability, including legal fees (on an attorney or solicitor and own client basis), arising out of, connected with or resulting from that use. This indemnity does not apply to the extent that the relevant claim, loss, liability or cost is caused or contributed to by the negligence, fraud or wilful misconduct of the indemnified person seeking to rely on this indemnity.
2.12.1 USE OF CONTENT FILES: Where you have incorporated Content Files into your work or Output Files and a third party alleges that the resulting work infringes its Intellectual Property, this Section applies only if: (i) you obtain at your own cost written opinions from at least two independent legal practitioners qualified in the relevant jurisdiction, each concluding on a sound legal basis that the use of the Content Files is likely to infringe or infringes that third party’s Intellectual Property; (ii) you notify FC by registered mail or by electronic notice using the applicable legal or support contact details set out in Section 9.3, or otherwise expressly designated by FC, within thirty (30) days after becoming aware of the alleged or potential infringement; (iii) you have not intentionally, knowingly or with constructive knowledge used or incorporated the Content Files in any manner that infringes a third party’s rights or Intellectual Property; (iv) you have not used the Content Files contrary to law; and (v) you have not acted in bad faith or remained wilfully blind to unlawful conduct relevant to the alleged infringement. FC has no obligation to assume or fund your defence, to pay any judgment, settlement, legal cost or other expense, or to procure continuing use rights in any Content File, except where FC separately agrees in writing or mandatory applicable law requires otherwise. FC retains exclusive control over any contractual response, replacement, modification, withdrawal or refund it elects to undertake. Each lawful owner retains exclusive control over the defence, settlement, licensing and enforcement of its own Intellectual Property, and no settlement or admission that binds FC or a lawful rights owner may be made without that person’s prior written consent. FC may, at its option and absolute discretion and without admitting liability, either: (i) procure for you the right to use the Content File or Content Files; or (ii) replace the Content File or Content Files and/or the Software with other Content Files and/or Software that are reasonably interchangeable and do not constitute infringement; or (iii) remove the infringing Content File or Content Files and refund the amount paid by you for those Content Files, if any, up to a maximum of US$100, whichever is less. Any remedy FC elects to provide under this Section is your sole contractual remedy for infringement of any third-party Intellectual Property right relating to the Content Files provided under this Agreement and constitutes the entire contractual liability and responsibility of FC and every person protected under Section 2.12 for that infringement. This Section is in lieu of any other statutory or implied warranty against infringement and does not create any right beyond a right that cannot lawfully be excluded.
2.13 CORPORATE LOGOS: THE USE OF, OR INCORPORATION OF ANY LOGO, MARK, MOTIF, OR REGISTERED TRADE MARK (HEREAFTER “CORPORATE LOGO OR LOGOS”) IS PERMITTED ONLY WHERE YOU: (I) ARE THE LAWFUL OWNER OF THAT CORPORATE LOGO; OR (II) HOLD ALL AUTHORISATIONS, LICENSES OR PERMISSIONS REQUIRED FROM THE LAWFUL RIGHTS OWNER AND BY APPLICABLE LAW; OR (III) HAVE ANOTHER RIGHT TO THE USE UNDER APPLICABLE LAW THAT CANNOT LAWFULLY BE EXCLUDED OR RESTRICTED. YOU ACKNOWLEDGE AND AGREE WITH FC AND ITS AUTHORISED PARTIES THAT IF AVAILABLE IN YOUR JURISDICTION YOU SHALL NOT USE, INCORPORATE, MODIFY OR IN ANY WAY CHANGE OR ALTER ANY CORPORATE LOGO EXCEPT AS PERMITTED UNDER THE PRECEDING SENTENCE, AND IT IS YOUR SOLE RESPONSIBILITY TO PROCURE ANY REQUIRED AUTHORISATION, LICENSE OR PERMISSION AT YOUR OWN COST AND RISK. YOU FURTHER AGREE THAT YOU ASSUME ALL RISK AND LIABILITY (INCLUDING PERSONAL LIABILITY) WHEN INCORPORATING ANY CORPORATE LOGO INTO ANY OF YOUR WORK(S) AND/OR OUTPUT FILES AND SHALL INDEMNIFY AND HOLD HARMLESS FC AND ITS AUTHORISED PARTIES AND SUPPLIERS FROM AND AGAINST ANY CLAIM, ACTION, SUIT, PROCEEDING, COST, EXPENSE, DAMAGE OR LIABILITY, INCLUDING LEGAL FEES (ON AN ATTORNEY OR SOLICITOR AND OWN CLIENT BASIS), ARISING OUT OF, CONNECTED WITH OR RESULTING FROM YOUR USE OR INCORPORATION OF ANY CORPORATE LOGO INTO YOUR WORK(S) OR OUTPUT FILE(S). THIS INDEMNITY DOES NOT APPLY TO THE EXTENT THAT THE RELEVANT CLAIM, LOSS, LIABILITY OR COST IS CAUSED OR CONTRIBUTED TO BY THE NEGLIGENCE, FRAUD OR WILFUL MISCONDUCT OF THE INDEMNIFIED PERSON SEEKING TO RELY ON THIS INDEMNITY.
2.13.1 CORPORATE LOGOS DISCLAIMER: CORPORATE LOGOS ARE ONLY AVAILABLE IN SOME JURISDICTIONS AND FC AND ITS AUTHORISED PARTIES DO NOT WARRANT OR GUARANTEE AVAILABILITY IN YOUR JURISDICTION (NOTE: CORPORATE LOGOS ARE NOT AVAILABLE IN AUSTRALIA OR THE EUROPEAN UNION). WHERE CORPORATE LOGOS ARE PROVIDED IN YOUR JURISDICTION OR HAVE BEEN IMPORTED BY YOU (WITH OR WITHOUT PERMISSION), FC AND ITS AUTHORISED PARTIES DO NOT WARRANT THE ACCURACY, MERCHANTABILITY OR FITNESS FOR PURPOSE OF ANY CORPORATE LOGO AND YOU ASSUME ALL RISK AND LIABILITY WHEN USING OR INCORPORATING ANY CORPORATE LOGO INTO YOUR WORK(S) AND/OR OUTPUT FILES. ABSOLUTELY NO RIGHTS TO USE OR INCORPORATE CORPORATE LOGOS WITH OR USING THE SOFTWARE ARE GRANTED TO YOU BY FC OR ANY OF ITS AUTHORISED PARTIES. TO AVOID ANY DOUBT NO UNAUTHORISED, UNLAWFUL OR IMPROPER USE OF ANY INCLUDED OR IMPORTED CORPORATE LOGO USING THE SOFTWARE BY YOU IS PERMITTED.
2.14 MACHINE OPERATION AND OUTPUT SAFETY
2.14.1 SCOPE OF THIS SECTION: The Software produces design files, machine instructions, Tool Paths, and other output (collectively “Machine Output”) intended for execution by Output Hardware, including without limitation CNC Machines, Engravers, Laser Machines, Plotters, Printers, Routers, and Vinyl Cutters. Operation of such hardware involves inherent risks of bodily injury (including death), property damage, fire, fumes, electrical hazards, and damage to equipment, work pieces, and Substrates. You acknowledge and agree that this Section 2.14 applies in addition to, and not in substitution for, Sections 2.5.2, 2.5.5, 2.5.7, 2.9, 2.10, and 2.11.
2.14.2 OPERATOR COMPETENCE AND TRAINING: You represent, warrant, and agree with FC and its Authorised Parties that you and any operator using the Software or executing Machine Output on Output Hardware: (i) are competent, trained, and qualified to operate the relevant Output Hardware in accordance with its manufacturer’s documentation and applicable safety standards; (ii) understand and follow the emergency stop, lockout, and shutdown procedures of the Output Hardware; (iii) use appropriate personal protective equipment (including but not limited to eye protection, hearing protection, respiratory protection, and protective clothing) as required by the operation and applicable workplace safety law in your jurisdiction; and (iv) maintain fire-watch, fume extraction, dust extraction, and ventilation appropriate to the operation, the Substrate, and the Output Hardware in use. You further agree that you and any operator must not bypass, disable or defeat any guard, interlock, emergency-stop or other safety system of the Output Hardware, must not override manufacturer safety limits, and must not process materials contrary to the Output Hardware manufacturer’s instructions or applicable safety data sheets.
2.14.3 PRE-EXECUTION VERIFICATION: YOU ACKNOWLEDGE AND AGREE THAT IT IS YOUR SOLE RESPONSIBILITY, BEFORE TRANSMITTING ANY MACHINE OUTPUT TO OUTPUT HARDWARE FOR EXECUTION, TO INSPECT, SIMULATE, PROOF, AND VERIFY THE MACHINE OUTPUT, INCLUDING WITHOUT LIMITATION: (I) TOOL PATHS, CUTTING ORDER, AND SEQUENCING; (II) CUTTING DEPTH, FEED RATE, SPINDLE SPEED, LASER POWER, AND OTHER OPERATIONAL PARAMETERS; (III) ARMS, REGISTRATION MARKS, BARCODES, QR CODES, FIDUCIALS, AND ALIGNMENT REFERENCES; (IV) MACHINE TRAVEL LIMITS, BED SIZE, AND COLLISION RISK WITH CLAMPS, FIXTURES, OR PREVIOUSLY PROCESSED AREAS; AND (V) THE SUITABILITY OF THE MACHINE OUTPUT FOR THE SUBSTRATE AND THE OUTPUT HARDWARE TO BE USED. FAILURE TO PERFORM SUCH VERIFICATION IS A MATERIAL BREACH OF THIS AGREEMENT AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, IS AT YOUR SOLE RISK AND COST.
2.14.4 MATERIAL COMPATIBILITY AND SUBSTRATE SELECTION: YOU ACKNOWLEDGE AND AGREE THAT THE SOFTWARE DOES NOT IDENTIFY, VALIDATE, OR WARN AGAINST SUBSTRATES OR MATERIALS THAT ARE UNSAFE, UNSUITABLE, OR INCOMPATIBLE WITH A GIVEN OPERATION OR OUTPUT HARDWARE. BY WAY OF EXAMPLE ONLY, AND DEPENDING ON THE MACHINE, PROCESS, WAVELENGTH AND TEMPERATURE, SOME SUBSTRATES MAY PRODUCE TOXIC OR CORROSIVE FUMES WHEN CUT, ENGRAVED, OR LASERED (INCLUDING BUT NOT LIMITED TO POLYVINYL CHLORIDE (PVC), ACRYLONITRILE BUTADIENE STYRENE (ABS), POLYCARBONATE, TREATED OR PAINTED WOODS, AND CERTAIN COMPOSITES), SOME ARE FLAMMABLE OR PRONE TO IGNITION, SOME PRODUCE COMBUSTIBLE DUST, AND SOME WILL DAMAGE OUTPUT HARDWARE. YOU ASSUME ALL RISK AND LIABILITY ARISING FROM YOUR SELECTION AND PROCESSING OF SUBSTRATES, INCLUDING WITHOUT LIMITATION ANY FIRE, EXPLOSION, TOXIC EXPOSURE, EQUIPMENT DAMAGE, OR THIRD-PARTY HARM.
2.14.5 NO WARRANTY OF MACHINE OUTPUT: SUBJECT TO ANY STATUTORY WARRANTIES WHICH CANNOT BE EXCLUDED, FC AND ITS AUTHORISED PARTIES DO NOT WARRANT THAT MACHINE OUTPUT PRODUCED BY THE SOFTWARE WILL: (I) MATCH YOUR DESIGN INTENT; (II) BE DIMENSIONALLY ACCURATE WITHOUT CALIBRATION OF THE OUTPUT HARDWARE; (III) BE SAFE TO EXECUTE ON ANY PARTICULAR OUTPUT HARDWARE OR SUBSTRATE; (IV) PRODUCE THE EXPECTED PHYSICAL RESULT; OR (V) COMPLY WITH ANY APPLICABLE STANDARD, CERTIFICATION, OR REGULATORY REQUIREMENT GOVERNING THE FINAL PRODUCT OR THE PROCESS USED TO PRODUCE IT. CALIBRATION, PROOFING, AND TEST CUTS ARE YOUR SOLE RESPONSIBILITY.
2.14.6 UNATTENDED AND REMOTE OPERATION: THE SOFTWARE IS NOT DESIGNED, MANUFACTURED, OR WARRANTED FOR USE IN UNATTENDED OR REMOTE OPERATION OF OUTPUT HARDWARE. WHERE YOU CHOOSE TO OPERATE OUTPUT HARDWARE UNATTENDED, REMOTELY, OUTSIDE STANDARD BUSINESS HOURS, OR WITHOUT DIRECT HUMAN SUPERVISION OF THE EQUIPMENT, YOU DO SO AT YOUR SOLE RISK AND COST AND ARE RESPONSIBLE FOR PROVIDING ALL SUPERVISORY CONTROLS, FIRE-DETECTION AND SUPPRESSION SYSTEMS, EMERGENCY-STOP MECHANISMS, AND OTHER SAFETY EQUIPMENT REQUIRED BY THE OUTPUT HARDWARE, THE SUBSTRATE, AND APPLICABLE LAW IN YOUR JURISDICTION.
2.14.7 INDEMNIFICATION FOR MACHINE-RELATED HARM: PURSUANT TO SECTIONS 2.14.1 THROUGH 2.14.6 (ABOVE), AND IN ADDITION TO ANY OTHER INDEMNITY UNDER THIS AGREEMENT (INCLUDING WITHOUT LIMITATION SECTIONS 2.5.5 AND 3.7.3), YOU AGREE TO INDEMNIFY, HOLD HARMLESS AND DEFEND FC AND ITS AUTHORISED PARTIES AND SUPPLIERS FROM AND AGAINST ANY LOSS, DAMAGE, CLAIM, DEMAND, ACTION, SUIT, PROCEEDING, COST, EXPENSE, OR LIABILITY (INCLUDING LEGAL FEES ON A SOLICITOR OR ATTORNEY AND OWN CLIENT BASIS) ARISING FROM OR CONNECTED WITH: (I) THE OPERATION OF OUTPUT HARDWARE BY YOU OR ANY PERSON USING YOUR LICENSE; (II) BODILY INJURY (INCLUDING DEATH) OR PROPERTY DAMAGE CAUSED BY OR DURING SUCH OPERATION; (III) FIRE, EXPLOSION, FUME RELEASE, OR DUST RELEASE ARISING FROM SUCH OPERATION; (IV) DAMAGE TO OUTPUT HARDWARE, TOOLING, SUBSTRATES, OR WORKPIECES; (V) FAILURE TO PERFORM PRE-EXECUTION VERIFICATION UNDER SECTION 2.14.3; (VI) SELECTION OF SUBSTRATE OR MATERIAL UNDER SECTION 2.14.4; (VII) UNATTENDED OR REMOTE OPERATION UNDER SECTION 2.14.6; OR (VIII) THIRD-PARTY CLAIMS ARISING FROM ANY OF THE FOREGOING. THIS INDEMNITY DOES NOT APPLY TO THE EXTENT THAT SUCH LOSS, DAMAGE, CLAIM, DEMAND, ACTION, SUIT, PROCEEDING, COST, EXPENSE, OR LIABILITY ARISES FROM OR IS CAUSED BY THE NEGLIGENCE, FRAUD, OR WILFUL MISCONDUCT OF THE INDEMNIFIED PERSON SEEKING TO RELY ON THIS INDEMNITY.
2.14.8 EXCLUDED LOSSES - MACHINE OPERATION: NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO ANY LIABILITY WHICH CANNOT LAWFULLY BE EXCLUDED OR LIMITED IN THE APPLICABLE JURISDICTION, NEITHER FC NOR ITS AUTHORISED PARTIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR SUPPLIERS SHALL BE LIABLE FOR ANY OF THE FOLLOWING LOSSES OR DAMAGES ARISING FROM OR CONNECTED WITH THE OPERATION OF OUTPUT HARDWARE OR THE EXECUTION OF MACHINE OUTPUT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE: (I) DAMAGE TO OR DESTRUCTION OF MATERIALS, SUBSTRATES, OR WORKPIECES; (II) DAMAGE TO OR DESTRUCTION OF OUTPUT HARDWARE OR ASSOCIATED TOOLING OR EQUIPMENT; (III) FAILED OR DEFECTIVE PRODUCTION RUNS; (IV) FIRE, EXPLOSION, OR IGNITION OF ANY KIND; (V) FUME RELEASE, TOXIC EXPOSURE, OR COMBUSTIBLE DUST; (VI) PERSONAL INJURY (INCLUDING DEATH); (VII) DAMAGE TO REAL OR PERSONAL PROPERTY OF ANY KIND; (VIII) ENVIRONMENTAL DAMAGE OR CONTAMINATION; (IX) BUSINESS INTERRUPTION, LOSS OF PRODUCTION, OR LOSS OF REVENUE; OR (X) ANY LOSS ARISING FROM UNATTENDED OR REMOTE MACHINE OPERATION. THIS EXCLUSION DOES NOT APPLY TO: (A) LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF THE PERSON SEEKING TO RELY ON THIS EXCLUSION; (B) LIABILITY FOR FRAUD OR FRAUDULENT MISREPRESENTATION BY THE PERSON SEEKING TO RELY ON THIS EXCLUSION; OR (C) ANY OTHER LIABILITY THAT CANNOT LAWFULLY BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, INCLUDING ANY NON-EXCLUDABLE STATUTORY CONSUMER GUARANTEES.
2.14.9 COMPUTATIONAL, CONVERSION AND TRANSLATION VARIATIONS: YOU ACKNOWLEDGE AND AGREE THAT THE GENERATION OF MACHINE OUTPUT INVOLVES MATHEMATICAL CALCULATION AND CONVERSION, AND THAT MACHINE OUTPUT, INCLUDING TOOL PATHS, MAY BE AFFECTED BY COMPUTATIONAL, NUMERICAL, CONVERSION OR TRANSLATION VARIATIONS, INCLUDING WITHOUT LIMITATION: (I) LIMITS OF NUMERICAL PRECISION; (II) ROUNDING AND ACCUMULATED ROUNDING; (III) COORDINATE CONVERSION; (IV) UNIT CONVERSION; (V) INTERPOLATION; (VI) SCALING OR DIMENSIONAL CONVERSION; (VII) GEOMETRIC AND TOOL PATH CALCULATION; (VIII) POST-PROCESSING AND THE CONVERSION OR TRANSLATION OF DESIGNS INTO MACHINE INSTRUCTIONS, INCLUDING G-CODE, HPGL OR PROPRIETARY MACHINE-CODE GENERATION; AND (IX) DRIVER OR DEVICE-FORMAT CONVERSION. AS A RESULT, DIFFERENCES MAY ARISE BETWEEN MACHINE OUTPUT AS DISPLAYED, DESIGNED, SIMULATED OR EXPORTED AND MACHINE OUTPUT AS ULTIMATELY EXECUTED BY OUTPUT HARDWARE. BEFORE ANY PHYSICAL EXECUTION OF MACHINE OUTPUT, YOU REMAIN SOLELY RESPONSIBLE FOR CARRYING OUT THE INSPECTION, SIMULATION, PROOFING, CALIBRATION, TEST-CUT AND VERIFICATION OBLIGATIONS SET OUT IN SECTIONS 2.14.3 AND 2.14.5 (ABOVE), AND THOSE OBLIGATIONS INCLUDE VERIFYING MACHINE OUTPUT FOR THE EFFECTS OF THE MATTERS DESCRIBED IN THIS SECTION 2.14.9. THIS SECTION 2.14.9 IS SUBJECT TO THE CARVE-OUTS AND SAVINGS IN SECTIONS 2.14.7 AND 2.14.8 (ABOVE) AND DOES NOT EXCLUDE, RESTRICT OR MODIFY ANY RIGHT, GUARANTEE, REMEDY OR LIABILITY THAT CANNOT LAWFULLY BE EXCLUDED, RESTRICTED OR MODIFIED.
2.15 PROHIBITION ON USE FOR ARTIFICIAL INTELLIGENCE TRAINING: EXCEPT FOR ARTIFICIAL INTELLIGENCE, MACHINE LEARNING OR GENERATIVE AI FEATURES, SERVICES, PLUGINS, MODULES, COMPONENTS OR FUNCTIONALITY EXPRESSLY PROVIDED, AUTHORISED OR ENABLED BY FC AS PART OF THE SOFTWARE OR THROUGH AN AUTHORISED THIRD-PARTY INTEGRATION APPROVED BY FC, YOU MAY NOT USE THE SOFTWARE, DOCUMENTATION, CONTENT FILES, TOOL PATHS, OUTPUT FILES, USER INTERFACES, WORKFLOWS, ALGORITHMS, FEATURES, FUNCTIONS, DATA, OR ANY OTHER PART OF THE SOFTWARE FOR THE PURPOSE OF TRAINING, TESTING, BENCHMARKING, VALIDATING, FINE-TUNING, DEVELOPING, IMPROVING, OPERATING OR OTHERWISE SUPPORTING ANY MACHINE LEARNING MODEL, ARTIFICIAL INTELLIGENCE SYSTEM, NEURAL NETWORK, LARGE LANGUAGE MODEL, GENERATIVE AI SYSTEM, FOUNDATION MODEL, MULTI-MODAL MODEL, OR ANY SIMILAR OR RELATED TECHNOLOGY, WHETHER OPERATED BY YOU, A THIRD PARTY, OR AN AUTOMATED PROCESS.
THIS PROHIBITION APPLIES REGARDLESS OF WHETHER SUCH USE IS COMMERCIAL OR NON-COMMERCIAL AND REGARDLESS OF WHETHER THE SOFTWARE, ITS OUTPUT, TOOL PATHS, CONTENT FILES, WORKFLOWS, USER INTERFACES, SCREEN CAPTURES, METADATA, DOCUMENTATION, OR OTHER INFORMATION IS USED DIRECTLY OR INDIRECTLY, OR AS PART OF A DERIVED, MODIFIED, TRANSFORMED, EXTRACTED, AGGREGATED OR SYNTHETIC DATASET. WITHOUT LIMITING THE FOREGOING, YOU MAY NOT SCRAPE, HARVEST, RECORD, MIRROR, CRAWL, INDEX, CAPTURE, EXTRACT OR COLLECT ANY DATA, CONTENT, OUTPUT, METADATA, USER INTERFACE ELEMENTS, WORKFLOWS, TOOL PATHS, DESIGNS OR OTHER INFORMATION FROM OR RELATING TO THE SOFTWARE FOR THE PURPOSE OF TRAINING, TESTING, BENCHMARKING, VALIDATING, DEVELOPING OR IMPROVING ANY ARTIFICIAL INTELLIGENCE OR MACHINE LEARNING SYSTEM. FOR THE AVOIDANCE OF DOUBT, NOTHING IN THIS SECTION PROHIBITS YOUR USE OF ANY ARTIFICIAL INTELLIGENCE, MACHINE LEARNING OR GENERATIVE AI FUNCTIONALITY THAT IS EXPRESSLY PROVIDED, LICENSED, ENABLED OR AUTHORISED BY FC AS PART OF THE SOFTWARE OR THROUGH AN INTEGRATION APPROVED BY FC, PROVIDED SUCH USE COMPLIES WITH THIS AGREEMENT AND ANY ADDITIONAL TERMS APPLICABLE TO SUCH FUNCTIONALITY. THIS SECTION 2.15 DOES NOT RESTRICT THE USE OF CONTENT INDEPENDENTLY CREATED AND OWNED BY YOU MERELY BECAUSE THAT CONTENT WAS IMPORTED INTO, EDITED USING OR EXPORTED FROM THE SOFTWARE, PROVIDED THE RELEVANT DATASET DOES NOT INCLUDE OR EXPOSE PROPRIETARY CODE, CONTENT FILES, USER-INTERFACE ELEMENTS, DOCUMENTATION, ALGORITHMS, PROTECTED WORKFLOWS OR OTHER INTELLECTUAL PROPERTY BELONGING TO FC OR ITS SUPPLIERS; NOR DOES IT RESTRICT ANY NON-WAIVABLE RIGHT UNDER APPLICABLE LAW AND ANY TESTING MANDATED BY A REGULATOR WITH JURISDICTION OVER YOU.
3. GENERAL PROVISIONS
3.1 COMPLIANCE WITH LICENSES: You acknowledge and agree that, upon the reasonable written request of FC, you will within a reasonable time not exceeding thirty (30) days fully document and certify that use of the Software and any other software licensed to you by FC at the time of the request is in conformity with your valid Licenses from FC. Upon the reasonable written request of the Authorised Channel Participant from which you or the First User obtained a License, that Authorised Channel Participant may require such documentation or certification only in respect of this License and any other License supplied to you through the same authorised channel and only to the extent within the scope of its written authorisation.
3.1.1 COMPLIANCE WITH LAWS: You hereby agree to use the Software (as defined in Section 1.2 above) in compliance with all applicable laws, including local laws of the country or region in which you reside or in which you download or use the Software. Tools and features of the Software may not be available in all languages or regions and some features may vary by region.
3.2 RECORDS: You acknowledge and agree that any and all records pertaining and/or that are related to the Software and/or your License, including but not limited to: (i) Hardware Serial Numbers, PSNs, SLNs and SPNs; (ii) Usernames and license identifiers (excluding passwords and other security credentials); or (iii) information provided by you at the time of obtaining this License (collectively “records”) are your sole responsibility to keep, maintain and protect from any loss or damage and shall not be unreasonably withheld from FC, its Authorised Channel Participant or the Authorised Dealer that sold or provided you with this License upon request. Neither FC nor its Authorised Parties shall be liable for any failure to provide you with, or permanent loss of such records should these become lost, destroyed, or misplaced but shall not be unreasonably withheld from you (if available) upon request by you.
3.3 FORCE MAJEURE: Neither FC nor its Authorised Parties shall be liable for any failure or delay in performing services or any other obligation under this Agreement, nor for any damages suffered by you by reason of such failure or delay, which is, indirectly or directly, caused by criminal acts, strike, riot, pandemics, war, acts of terrorism, any natural catastrophe or disaster, or any act of God, cyberattack, ransomware or denial-of-service attack, internet or telecommunications outage, cloud service or infrastructure failure, or any other cause beyond FC’s reasonable control.
3.4 NO WAIVER: The waiver by either party of, or the failure of either party to enforce, any breach or default of the other party under this Agreement shall not constitute a waiver of any other or subsequent or continuing breach or default.
3.5 CERTAIN TERMS SHALL SURVIVE: The following will survive the termination, cancellation or rescission of this Agreement, howsoever caused: (a) the definitions and interpretation provisions; (b) provisions concerning ownership of Intellectual Property (including sections 2.2 and 2.2.1); (c) restrictions on the use of the Software (including sections 2.5, 2.7 and 2.15); (d) confidentiality (section 3.7.4); (e) accrued payment obligations; (f) indemnities; (g) warranty disclaimers, exclusions and limitations of liability (including sections 2.8 through 2.10.1, 2.14 through 2.14.9, 3.8, 5.1.3 and 5.1.4); (h) governing law, jurisdiction and dispute resolution (section 4); (i) the provisions of the addenda in Part II and the country-specific provisions in Part III applicable to you, including those identifying the Licensor and preserving intellectual-property ownership, protection and reservation of rights; and (j) any other provision which by its nature is intended to survive. Such survival shall not imply or create any continued right to use the Software or any part thereof after such termination, cancellation or rescission of this Agreement.
3.6 LIMITATION TO BRING AN ACTION: You acknowledge and agree with FC and its Authorised Parties that any claim arising under or in connection with this Agreement is subject to the limitation, prescription and other applicable time-bar periods prescribed by the governing law determined under Section 4 and by any mandatory law applicable to the user, transaction or claim. The accrual, commencement, suspension, extension, postponement and expiry of any such period shall be determined under that applicable law. Nothing in this Section 3.6 creates a contractual limitation period shorter than the period permitted by applicable law, extends any applicable limitation or prescription period, or excludes, restricts or modifies any right that cannot lawfully be excluded, restricted or modified. See Section 8 for country-specific provisions that may replace, amend or supplement this Section 3.6.
3.7 ENTIRE AGREEMENT: This License, together with the License terms in the addenda applicable to you as listed in this Agreement (including terms defining what you may do with the Software and limitations on warranties and/or remedies), constitutes the entire Agreement between you and FC, superseding any other or previous Agreement or discussions, representations or advertising, oral or written, other than (i) a separate, valid, existing and applicable License Agreement duly signed by a Supervisor or Manager of FC; or (ii) a separate, valid, existing and applicable License Agreement for any updated or subsequent version of the Software written and published exclusively by FC that expressly appends to or wholly replaces this Agreement at such date; and (iii) to the extent of their consistency with this License Agreement, the applicable terms and conditions of sale disclosed by FC or the authorised seller at or before the time of purchase, with FC’s Terms and Conditions of Sale available through the link in section 9 (see links in Part IV) and any independent authorised seller’s applicable terms being those disclosed by that seller in connection with the transaction. To the extent of any inconsistency between this Agreement and any additional and/or superseding Agreement the additional and/or superseding Agreement shall govern. This Agreement does not grant any concurrent right in the Software or any right to install, access, use or deploy the Software on or through a terminal server, except as expressly stated in this Agreement or in a separate written License Agreement granted by FC. Any additional right concerning the licensed Software, including any terminal-server installation, access, use or deployment right, must be granted by FC under a separate written License Agreement. Any right concerning an FC server-based Hardware or Software Product must be granted by FC under a separate written License Agreement. The absence of an applicable separate written License Agreement does not cause this Agreement to cease to apply to any unauthorised installation, access, use or deployment, which remains subject to all applicable restrictions, protections, remedies, exclusions, limitations and obligations in this Agreement. You further acknowledge that with respect to matters referring to or relating to time, that time is of the essence of this Agreement.
3.7.1 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 it 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.
3.7.2 TERMINATION: Except as expressly provided in this Agreement if any breach of this License by you continues for more than thirty (30) days after receipt of written notice of such breach from FC, FC may terminate this License by written notice to you, whereupon this License and all rights granted to you herein shall immediately cease. In the event of any conflict between the terms of this section and any express term requiring immediate termination for breach of this License Agreement, the express terms of such other section shall govern. You may terminate this License at any time by providing written notice to FC. In the event of any termination of this License by you and except for III. (above) you (i) acknowledge that such termination shall not entitle you, any other or third party to any refund or credit from FC or its Authorised Parties; and (ii) you shall: (a) promptly uninstall and where applicable deactivate and/or deregister the Software; and (b) return any media and other associated materials including the hardware security device (if applicable) to FC or the place of purchase; and (c) obtain a receipt for such return as evidence of such termination of this License Agreement.
3.7.3 GENERAL INDEMNITY: You agree to indemnify and hold harmless FC and its Authorised Parties and Suppliers from and against any claim, action, suit, proceeding, cost, expense, damage or liability, including legal fees on a solicitor and own client basis, arising out of or connected with any improper, unlawful or unauthorised use or misuse of the Software by: (i) you; or (ii) any colleague, employee, agent, delegate, family member or other person whom you permit, enable, facilitate or allow to access or use the Software, whether such conduct is intentional, negligent or otherwise. This indemnity applies only to the extent that the relevant claim, loss, liability or cost is caused by the conduct described above and does not apply to the extent caused or contributed to by the negligence, fraud or wilful misconduct of the indemnified person seeking to rely on this indemnity.
3.7.4 CONFIDENTIALITY: You acknowledge and agree that any objectively confidential non-public communication, data and/or information made available to you in connection with the Software by FC, its Authorised Parties or Suppliers, that is expressly identified as confidential, or that a reasonable person would understand to be confidential, proprietary, commercially sensitive or security-sensitive (including source code, licensing and activation systems, security mechanisms, unreleased functionality, technical materials, credentials and trade secrets), is strictly confidential and shall not be disclosed to any third party or published on any platform, except to the extent required by applicable law or by order of a court, tribunal, regulator or law enforcement authority, or to your legal advisers on a confidential basis. You further agree that any problems or difficulties arising from your use, understanding or functionality of the Software shall not be disclosed to another party or published on any platform for a malicious purpose. Nothing in this section prevents you from making lawful consumer reviews or good-faith complaints, or any disclosure permitted or protected by applicable law. Any serious, deliberate, repeated or security-sensitive violation of this Section, including any unauthorised disclosure or misuse of source code, credentials, licensing or activation systems, security mechanisms, trade secrets or unreleased functionality, is a material breach for which FC may immediately suspend the affected License and, subject to mandatory applicable law, terminate it by written notice without a cure period. Any other violation is subject to Section 3.7.2, provided that FC may take immediate proportionate protective action where reasonably necessary to prevent, contain or mitigate disclosure or misuse and may seek urgent injunctive or equitable relief. You further acknowledge that (i) such termination shall not entitle you, any other or third party to any refund or credit from FC or its Authorised Parties; and (ii) you shall: (a) promptly uninstall and where applicable deactivate and/or deregister the Software; and (b) return any media and other associated materials to FC or the place of purchase; and (c) obtain a receipt for such return as evidence of such termination of this License Agreement. FC reserves the right to take legal action against you for any losses or damages resulting from your breach of this section, and an Authorised Party may take legal action only in respect of loss or damage that it has itself suffered.
3.7.5 THIRD PARTY REPRESENTATIONS: FC is not responsible for representations, promises, warranties or statements made by dealers, distributors, OEM manufacturers, resellers or any other third parties that are inconsistent with this Agreement or that purport to grant rights, warranties or remedies beyond those expressly provided herein. Nothing in this Section excludes, limits or modifies any right, guarantee, warranty, remedy or protection available to you under applicable law that cannot lawfully be excluded, limited or modified. See Part III for country-specific terms that may apply to you.
3.8 PROTECTED PERSONS AND NO PERSONAL RECOURSE: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (I) NO CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE MAY BE BROUGHT PERSONALLY AGAINST ANY DIRECTOR, OFFICER, EMPLOYEE, CONTRACTOR OR LEGAL REPRESENTATIVE OF FC OR OF ANY OTHER PERSON OR ENTITY EXPRESSLY PROTECTED BY THIS AGREEMENT (EACH A “PROTECTED PERSON”); (II) EVERY EXCLUSION, LIMITATION, RELEASE, DISCLAIMER AND INDEMNITY IN THIS AGREEMENT THAT EXPRESSLY BENEFITS A PERSON OR ENTITY ALSO BENEFITS EACH OF ITS PROTECTED PERSONS; (III) WHERE NECESSARY TO GIVE EFFECT TO THIS SECTION, EACH PERSON OR ENTITY EXPRESSLY PROTECTED BY THIS AGREEMENT CONTRACTS FOR ITSELF AND AS AGENT FOR ITS OWN PROTECTED PERSONS SOLELY IN RESPECT OF THE PROTECTIONS EXPRESSLY CONFERRED UPON THEM; (IV) EACH PROTECTED PERSON IS AN INTENDED BENEFICIARY OF, AND MAY RELY UPON AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ENFORCE IN ITS OWN NAME, THE PROTECTIONS EXPRESSLY CONFERRED UPON IT; AND (V) NO PROTECTED PERSON MAY EXERCISE ANY RIGHT OF SUSPENSION, TERMINATION, RESCISSION, CANCELLATION, DEACTIVATION, DEREGISTRATION OR RESTORATION RESERVED EXCLUSIVELY TO FC UNLESS THIS AGREEMENT AND APPLICABLE LAW EXPRESSLY PERMIT IT. NOTHING IN THIS SECTION EXCLUDES OR LIMITS LIABILITY FOR FRAUD OR DELIBERATE MISCONDUCT OR ANY LIABILITY THAT CANNOT LAWFULLY BE EXCLUDED OR LIMITED.
4. GOVERNING LAW
4.1.1 AUSTRALIA: If you licensed the Software for use within Australia, Victorian state law governs the interpretation of this Agreement and applies to any and all claims. 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. Subject to any mandatory jurisdictional rights available to you under applicable law, the parties submit to the jurisdiction of the courts of Victoria, and claims shall be brought in a Melbourne court of competent jurisdiction.
4.1.2 OUTSIDE AUSTRALIA: Notwithstanding where or from whom you acquired this License for the Software you acknowledge and agree with FC and its Authorised Parties that the interpretation of this Agreement and any and all claims brought by you or by FC arising out of or in connection with this Agreement, regardless of (i) “conflict of laws”, or (ii) “private international law” principles, or (iii) any other “theory of law”, shall be governed by the laws of Victoria, Australia and, where applicable, the laws of the Commonwealth of Australia and, subject to any mandatory jurisdictional rights available to you under applicable law, shall be subject to the exclusive jurisdiction of the courts of Victoria, Australia.
4.1.3 EXCLUSIONS: SUBJECT TO ANY MANDATORY APPLICABLE LAW AND SECTIONS 4.1.1 AND 4.1.2 ABOVE: (I) ANY CHOICE-OF-LAW, CONFLICT-OF-LAWS OR PRIVATE INTERNATIONAL LAW RULE, PRINCIPLE OR DOCTRINE THAT WOULD REQUIRE OR RESULT IN THE APPLICATION OF THE LAW OF A JURISDICTION OTHER THAN THE GOVERNING LAW SPECIFIED IN THIS SECTION 4 IS EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY LAW; (II) THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (CISG), AND ANY DOMESTIC LEGISLATION IMPLEMENTING OR GIVING EFFECT TO THE CISG TO THE EXTENT THAT IT WOULD OTHERWISE APPLY THE CISG TO THIS AGREEMENT, DOES NOT APPLY; AND (III) THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT (UCITA), IN ANY FORM ENACTED OR ADOPTED IN ANY JURISDICTION, DOES NOT APPLY TO THIS AGREEMENT TO THE MAXIMUM EXTENT THAT ITS APPLICATION MAY LAWFULLY BE EXCLUDED.
4.1.4 LEGAL EFFECT: This Agreement describes certain legal rights. You may have other rights under the laws of your country, state, province, territory, county or other region where you live. You may also have rights with respect to the party from whom you acquired this License. This Agreement does not change your rights under the laws of your country, state, province, territory, county or other region where you live if the laws thereof do not permit it to do so, see section 8 for specific provisions related to other jurisdictions which may be applicable to you.
4.2 LANGUAGE VERSIONS: This Agreement is available in English and, where published by or on behalf of FC, in one or more translated language versions. Except as expressly provided in Section 4.2.1 or required by mandatory applicable law, the English version is the primary and governing version for interpretation and construction and prevails to the extent of any inconsistency, ambiguity, omission, discrepancy or difference in interpretation between the English version and a translation. A translation does not create, expand, restrict or otherwise alter any person’s rights or obligations beyond the corresponding English text, except to the extent required by mandatory applicable law.
4.2.1 TRANSLATED VERSIONS: FC may publish one or more translated language versions of this Agreement for convenience. Except to the extent required by mandatory applicable law, the English version remains the primary and governing version and prevails in the event of any inconsistency, ambiguity, omission, discrepancy or difference in interpretation between the English version and any translated version. A translated version shall not be construed to create, expand, restrict or otherwise alter any person’s rights or obligations beyond those set out in the corresponding English text, except to the extent required by mandatory applicable law.
4.3 USE OF EXPERTS: Where a dispute of a technical nature with respect to the Software has arisen between the parties, any expert relied upon by either party must be independent and appropriately qualified by knowledge, skill, experience, training or education directly relevant to the particular technical issue in dispute. Where the issue concerns or requires examination, interpretation or analysis of source code, architecture, compiler behaviour, machine-driver implementation or other technical implementation written or developed using Delphi or Object Pascal, the expert must have demonstrable and substantial practical knowledge and experience in Delphi or Object Pascal sufficient to form a properly informed expert opinion on that issue. An expert who does not possess such knowledge and experience shall not be regarded as appropriately qualified under this Agreement to give an expert opinion on that Delphi or Object Pascal-specific issue. The admissibility and weight of expert evidence remain subject to applicable law and the rules and directions of the court or tribunal.
5. TECHNICAL SUPPORT
5.1 TECHNICAL SUPPORT: Subject to this Agreement, FC and its Authorised Parties will make a reasonable amount of Technical Support available for the Software during the applicable support period. For Software other than Perpetual or Subscription Software, Technical Support will be available while the licensed version remains within Product Life and the License remains valid. For a Perpetual License, Technical Support will be available throughout the Supported Period defined in Section 1.2, notwithstanding that Product Life for that version may end earlier. For Subscription Software, Technical Support will be available while the Subscription remains current and the applicable fees are paid when due. Technical Support applies only to the licensed version and to operating systems, hardware, configurations and other technologies supported by FC for that version, and may require you to install reasonably necessary Updates, patches or service packs made available for that version. FC does not guarantee any minimum service level, frequency, response time, resolution time, successful resolution or continuous availability of Technical Support. Technical Support is limited to the identification and attempted remedy of technical issues as defined in Section 1.2 and does not include consulting, advice, training or assistance outside that definition. Technical Support is further subject to Sections 5.1.1 through 5.1.4 and all other applicable limitations and exclusions in this Agreement.
5.1.1 GETTING SUPPORT: In the first instance, you should make reasonable use of the Help files, documentation and training resources provided with or for the Software, including any available articles, videos, frequently asked questions, forums and knowledgebase materials. If those resources are insufficient, you may request Technical Support through the support channel identified in Section 9.3. Technical Support requested through that channel will be provided or administered by or on behalf of FC in accordance with this Agreement. The use of a common support website, portal, service platform or Authorised Service Provider to receive, route, administer or respond to a support request does not make the operator of that website, portal, platform or service the warrantor or independent contractual provider of Technical Support.
5.1.2 TECHNICAL SUPPORT: EXCLUSIONS: You are solely responsible for the installation of, and the regular updating of the Software, and for the proper installation, configuration, and operation of the Software with your hardware, any supporting Software including but not limited to the Operating System, Antivirus Software and/or any Internal or External network, and services upon which the Software relies. You are responsible for selecting the correct settings for your Server and workstations. The Software is delivered with certain default settings which may not be appropriate for all circumstances.
5.1.3 TECHNICAL SUPPORT: NO WARRANTY: SUBJECT TO ANY STATUTORY WARRANTIES WHICH CANNOT BE EXCLUDED, TECHNICAL SUPPORT IS PROVIDED ON AN AS-IS BASIS AND FC, ITS AUTHORISED PARTIES AND ITS SUPPLIERS GIVE NO WARRANTY, REPRESENTATION, CONDITION OR TERM, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, COURSE OF DEALING, CUSTOM, EQUITY, USAGE, OR UNDER ANY THEORY OF LAW, OR OTHERWISE AS TO ANY MATTER, INCLUDING, BUT NOT LIMITED TO PERFORMANCE, SECURITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, QUIET ENJOYMENT, MERCHANTABLE QUALITY, SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FC AND ITS AUTHORISED PARTIES DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING TECHNICAL SUPPORT. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF USING TECHNICAL SUPPORT IS ASSUMED BY YOU. FOR THE AVOIDANCE OF DOUBT, ANY OBLIGATION UNDER SECTION 5.1 TO MAKE TECHNICAL SUPPORT AVAILABLE IS AN OBLIGATION TO PROVIDE OR ATTEMPT TO PROVIDE THE TECHNICAL SUPPORT DESCRIBED IN THIS AGREEMENT AND DOES NOT CONSTITUTE A WARRANTY OR GUARANTEE THAT ANY ERROR, DEFECT, PROBLEM OR TECHNICAL ISSUE WILL BE IDENTIFIED, CORRECTED OR RESOLVED, OR THAT ANY PARTICULAR RESULT WILL BE ACHIEVED. WHERE ANY NON-EXCLUDABLE TERM IS IMPLIED OR IMPOSED BY LAW, TO THE EXTENT PERMITTED BY LAW, FC LIMITS ITS LIABILITY, AT ITS ABSOLUTE DISCRETION, TO THE RE-SUPPLY OF THE TECHNICAL SUPPORT SERVICES OR THE PAYMENT OF THE COST OF HAVING THOSE SERVICES SUPPLIED AGAIN. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS; SEE SECTION 8 FOR SPECIFIC PROVISIONS RELATED TO OTHER JURISDICTIONS WHICH MAY BE APPLICABLE TO YOU.
5.1.4 TECHNICAL SUPPORT LIMITATION OF LIABILITY: TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT NEITHER FC, ITS AUTHORISED PARTIES NOR ITS SUPPLIERS SHALL BE LIABLE FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS WHATSOEVER, HOWEVER CAUSED AND WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, STRICT LIABILITY, EQUITY, RESTITUTION, MISREPRESENTATION OR OTHERWISE, 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 DAMAGE 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 OR IN CONNECTION WITH TECHNICAL SUPPORT OBTAINED OR USED BY YOU, EVEN IF FC, ITS AUTHORISED PARTIES AND/OR A REPRESENTATIVE OF FC HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF FC, ITS AUTHORISED PARTIES AND ITS SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH THE PROVISION OF TECHNICAL SUPPORT UNDER THIS SECTION 5 SHALL BE LIMITED TO THE AMOUNT PAID FOR THAT TECHNICAL SUPPORT, 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. NOTHING IN THIS SECTION EXCLUDES OR LIMITS ANY LIABILITY THAT CANNOT LAWFULLY BE EXCLUDED, INCLUDING LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE. THIS LIMITATION OF LIABILITY MAY NOT BE VALID IN SOME JURISDICTIONS AND MAY NOT APPLY TO YOU; SEE SECTION 8 FOR SPECIFIC PROVISIONS RELATED TO OTHER JURISDICTIONS WHICH MAY BE APPLICABLE TO YOU.
6. INSTALMENT AND SUBSCRIPTION SOFTWARE
6.1 INSTALMENT SOFTWARE: FC, directly or through an Authorised Party acting within the scope of its authority, may, but is under no obligation to, permit you to pay the agreed price of a Software License by a specified number of periodic instalments (collectively “Instalment Software”). BY OBTAINING, INSTALLING OR USING INSTALMENT SOFTWARE UNDER THIS AGREEMENT, YOU ACKNOWLEDGE AND AGREE THAT: (I) YOU HAVE ELECTED TO PAY THE AGREED PRICE OF THE SOFTWARE LICENSE BY INSTALMENTS RATHER THAN BY A SINGLE UPFRONT PAYMENT; (II) THE FULL AGREED PRICE OF THE SOFTWARE LICENSE IS PAYABLE BY YOU IN THE INSTALMENT AMOUNTS AND ON THE PAYMENT DATES APPLICABLE TO YOUR TRANSACTION, AS SHOWN IN YOUR ORDER, ACCOUNT, PAYMENT SCHEDULE, INVOICE OR OTHER TRANSACTION RECORD; (III) EACH INSTALMENT FOR THE AFFECTED LICENSE IS DUE AND PAYABLE IN FULL WHEN DUE, SUBJECT ONLY TO ANY RIGHT YOU HAVE UNDER APPLICABLE LAW THAT CANNOT LAWFULLY BE EXCLUDED, RESTRICTED OR MODIFIED; AND (IV) YOUR OBLIGATION TO PAY THE INSTALMENTS ARISES UNDER AND FORMS PART OF THIS AGREEMENT AND IS NOT DEPENDENT UPON THE EXISTENCE, RECEIPT OR ENFORCEABILITY OF ANY SEPARATE TERMS AND CONDITIONS OF SALE, INVOICE, PAYMENT REMINDER OR OTHER NOTICE. Any applicable Terms and Conditions of Sale, payment terms or other transaction terms disclosed in connection with Instalment Software supplement this Agreement in relation to payment administration and other commercial matters but do not replace, condition or extinguish your payment obligations expressly assumed under this Section, except to the extent expressly agreed by FC or required by applicable law. Instalment Software is a payment arrangement only and does not of itself constitute Subscription Software, alter the underlying License Type, create an automatically renewing License or extend the term or scope of the Software License. Failure to pay an instalment when due, failure or rejection of a payment method, or any charge-back, reversal or payment dispute is governed by Sections 6.3 through 6.5. Suspension or termination of an Affected License does not of itself extinguish or release you from the unpaid balance of the agreed Software License price, as provided in Section 6.3.1. Once the final instalment due for the Software License has been paid and cleared, the instalment-payment status ends and the underlying License Type governs the continuing rights, if any, to use the Software. Where the underlying License Type is a Perpetual License, no further License fee or periodic relicensing requirement arises merely because the License was originally paid for by instalments. For the avoidance of doubt, Subscription Software does not become Instalment Software merely because Subscription fees are charged or paid periodically.
6.2 SUBSCRIPTION SOFTWARE: FC, directly or through an Authorised Party acting within the scope of its authority, may, but is under no obligation to, offer a Software License on a continuing recurring or fixed-term subscription basis (collectively “Subscription Software”). BY OBTAINING, INSTALLING OR USING SUBSCRIPTION SOFTWARE UNDER THIS AGREEMENT, YOU ACKNOWLEDGE AND AGREE THAT: (I) YOU HAVE ELECTED TO LICENSE THE SOFTWARE ON A SUBSCRIPTION BASIS; (II) THE SUBSCRIPTION FEES APPLICABLE TO YOUR LICENSE ARE PAYABLE BY YOU IN THE AMOUNTS AND ON THE PAYMENT DATES APPLICABLE TO YOUR TRANSACTION, AS SHOWN IN YOUR ORDER, ACCOUNT, SUBSCRIPTION RECORD, PAYMENT SCHEDULE, INVOICE OR OTHER TRANSACTION RECORD; (III) EACH SUBSCRIPTION FEE FOR THE AFFECTED LICENSE IS DUE AND PAYABLE IN FULL WHEN DUE, SUBJECT ONLY TO ANY RIGHT YOU HAVE UNDER APPLICABLE LAW THAT CANNOT LAWFULLY BE EXCLUDED, RESTRICTED OR MODIFIED; AND (IV) YOUR OBLIGATION TO PAY SUBSCRIPTION FEES ARISES UNDER AND FORMS PART OF THIS AGREEMENT AND IS NOT DEPENDENT UPON THE EXISTENCE, RECEIPT OR ENFORCEABILITY OF ANY SEPARATE TERMS AND CONDITIONS OF SALE, INVOICE, EMAIL, PAYMENT REMINDER OR OTHER NOTICE. A Subscription may be offered either: (A) on a continuing recurring basis, in which case the Subscription continues unless and until you cancel it or it is terminated in accordance with this Agreement or applicable law, and the applicable Subscription fees continue to become periodically due and payable while the Subscription remains in effect; or (B) for a specified fixed term, in which case the Subscription expires at the end of that term unless renewed or extended in accordance with the applicable Subscription arrangement. A fixed-term Subscription may also be subject to an agreed minimum payment commitment where expressly applicable to the transaction. A continuing recurring Subscription does not expire merely because a particular monthly, annual or other billing period has ended. Failure to pay a Subscription fee when due does not of itself constitute cancellation of the Subscription but may result in suspension and, if the payment failure remains uncured, termination of the Affected License in accordance with Section 6.3. Charge-backs, payment reversals and payment disputes are governed by Section 6.5. Any invoice, email, payment reminder or other Communication concerning a Subscription payment is provided for notification or administrative purposes and does not create, condition or limit your obligation to pay an amount otherwise validly due and payable under this Agreement. Failure to receive such a Communication does not of itself cancel the Subscription or extinguish an amount otherwise due, subject always to mandatory applicable law. Any applicable Terms and Conditions of Sale, payment terms, renewal terms or other transaction terms disclosed in connection with Subscription Software supplement this Agreement in relation to payment administration, renewal, cancellation and other commercial matters but do not replace, condition or extinguish the payment obligations expressly assumed under this Section, except to the extent expressly agreed by FC or required by applicable law. Unless otherwise required by applicable law or expressly agreed by FC, cancellation of a continuing recurring Subscription prevents Subscription fees becoming due for periods beginning after the effective date of cancellation but does not retrospectively cancel any period already commenced, release you from any Subscription fee already due and payable, or create a right to a refund for any period during which the Subscription was validly available for use. Any amounts remaining payable following cancellation, expiry, suspension or termination are governed by Section 6.3.1. A Subscription Software License permits use of the Software only while the Subscription remains valid and is not suspended. Upon expiry of a fixed-term Subscription, effective cancellation of a continuing recurring Subscription, or termination of a Subscription under this Agreement, your right to use the Software under that Subscription License ends and the Software may cease to function, become restricted or require relicensing. While a Subscription License is suspended, your rights and obligations are governed by Sections 6.3 and 6.4. Subscription Software remains Subscription Software regardless of whether Subscription fees are charged or paid monthly, annually, in advance, periodically or by another agreed payment arrangement. Payment of Subscription fees does not convert a Subscription License into a Perpetual License or create any continuing right to use the Software after the Subscription ends. Nothing in this Section excludes, restricts or modifies any cancellation, renewal, refund, cooling-off or other right that cannot lawfully be excluded, restricted or modified under applicable law.
6.3 SUSPENSION AND TERMINATION FOR NON-PAYMENT: WITHOUT LIMITING SECTIONS 2.3.5, 6.1 OR 6.2, IF ANY INSTALMENT, SUBSCRIPTION FEE OR OTHER AMOUNT DUE AND PAYABLE UNDER SECTION 6.1 OR 6.2 CANNOT BE SUCCESSFULLY COLLECTED OR REMAINS UNPAID WHEN DUE, INCLUDING BECAUSE A PAYMENT METHOD HAS EXPIRED, BEEN CANCELLED, REVOKED, BLOCKED OR DECLINED, SUFFICIENT FUNDS OR CREDIT ARE NOT AVAILABLE, OR PAYMENT AUTHORITY HAS BEEN WITHDRAWN, FC MAY, ACTING REASONABLY AND SUBJECT TO MANDATORY APPLICABLE LAW, SUSPEND THE LICENSE TO WHICH THE UNPAID AMOUNT RELATES (THE “AFFECTED LICENSE”), AND THE SOFTWARE LICENSED UNDER IT MAY CEASE TO FUNCTION OR OPERATE IN A RESTRICTED STATE WHILE THE PAYMENT FAILURE REMAINS UNCURED. FC IS NOT REQUIRED TO DEFER SUCH SUSPENSION UNTIL THE EXPIRY OF THE FOURTEEN (14) DAY PERIOD REFERRED TO BELOW, EXCEPT TO THE EXTENT THAT APPLICABLE LAW REQUIRES NOTICE, A CURE PERIOD OR OTHERWISE RESTRICTS SUSPENSION. WHERE THE PAYMENT FAILURE REMAINS UNCURED FOR FOURTEEN (14) DAYS AFTER THE APPLICABLE DUE DATE, FC MAY, ACTING REASONABLY AND SUBJECT TO ANY NOTICE OR CURE REQUIREMENTS IMPOSED BY APPLICABLE LAW, TERMINATE THE AFFECTED LICENSE. FC MAY ELECT NOT TO SUSPEND OR TERMINATE AN AFFECTED LICENSE WHERE IT CONSIDERS THAT COURSE APPROPRIATE IN THE CIRCUMSTANCES. WHERE A REINSTATEMENT FACILITY IS MADE AVAILABLE THROUGH THE CUSTOMER PORTAL OR ANOTHER AUTHORISED PROCESS, YOU MAY, BEFORE TERMINATION OF THE AFFECTED LICENSE, REMEDY THE PAYMENT FAILURE BY PROVIDING OR UPDATING AN ACCEPTED PAYMENT METHOD AND PAYING OR AUTHORISING PAYMENT OF THE OUTSTANDING AMOUNT AS REQUIRED BY THAT PROCESS. FOLLOWING SUCCESSFUL PAYMENT, SUCCESSFUL VALIDATION WHERE APPLICABLE, AND ANY REASONABLE FRAUD OR SECURITY CHECKS, FC WILL USE COMMERCIALLY REASONABLE EFFORTS TO REINSTATE THE AFFECTED LICENSE PROMPTLY. REINSTATEMENT REMAINS SUBJECT TO THE REASONABLE AVAILABILITY AND OPERATION OF THE SYSTEMS, INFRASTRUCTURE AND THIRD-PARTY SERVICES REASONABLY REQUIRED TO COMPLETE THE REINSTATEMENT, AND A TEMPORARY TECHNICAL DELAY OR FAILURE IN REINSTATEMENT DOES NOT OF ITSELF CREATE A SEPARATE OR REPLACEMENT SOFTWARE LICENSE, ENTITLE YOU TO A NEW OR REPLACEMENT PSN OR OTHER LICENSE IDENTIFIER, REVIVE A PREVIOUS LICENSE REPLACED BY AN UPGRADE, OR CONSTITUTE A PROMISE OF UNINTERRUPTED SYSTEM AVAILABILITY. THIS SECTION DOES NOT PERMIT FC TO REFUSE, WITHOUT CONTRACTUAL GROUNDS, TO REINSTATE AN AFFECTED LICENSE FOR WHICH THE PAYMENT FAILURE HAS BEEN PROPERLY REMEDIED, AND DOES NOT EXCLUDE OR LIMIT ANY RIGHT THAT CANNOT LAWFULLY BE EXCLUDED. AN AUTHORISED SERVICE PROVIDER MAY TECHNICALLY IMPLEMENT A SUSPENSION, REINSTATEMENT OR TERMINATION DECISION MADE BY FC BUT ACQUIRES NO INDEPENDENT CONTRACTUAL POWER, RIGHT OR DISCRETION TO MAKE THAT DECISION. ANY SUSPENSION, REINSTATEMENT OR TERMINATION UNDER THIS SECTION IS LIMITED TO THE AFFECTED LICENSE AND DOES NOT OF ITSELF AFFECT ANY OTHER LICENSE HELD BY YOU.
6.3.1 AMOUNTS REMAIN DUE AND PAYABLE: NOTWITHSTANDING SECTIONS 3.7.2, 6.3, 6.4 OR ANY SUSPENSION, CANCELLATION, EXPIRY OR TERMINATION OF AN AFFECTED LICENSE, ANY AMOUNT THAT HAS VALIDLY BECOME DUE AND PAYABLE UNDER SECTION 6.1 OR 6.2 REMAINS DUE AND PAYABLE BY YOU AND/OR THE LEGAL ENTITY ON WHOSE BEHALF THE SOFTWARE WAS LICENSED, EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY AGREED BY FC OR REQUIRED BY MANDATORY APPLICABLE LAW. IN THE CASE OF INSTALMENT SOFTWARE, BECAUSE THE INSTALMENT ARRANGEMENT IS A METHOD OF PAYING THE FULL AGREED PRICE OF THE SOFTWARE LICENSE, SUSPENSION OR TERMINATION OF THE AFFECTED LICENSE FOR NON-PAYMENT DOES NOT OF ITSELF EXTINGUISH OR RELEASE YOU FROM THE UNPAID BALANCE OF THAT AGREED PRICE, AND THE REMAINING INSTALMENTS CONTINUE TO FALL DUE IN ACCORDANCE WITH THE AGREED INSTALMENT SCHEDULE, EXCEPT TO THE EXTENT FC EXPRESSLY AGREES OTHERWISE OR APPLICABLE LAW REQUIRES OTHERWISE. EXCEPT WHERE FC EXPRESSLY AGREES OTHERWISE OR MANDATORY APPLICABLE LAW REQUIRES OTHERWISE, SUSPENSION OR TERMINATION OF INSTALMENT SOFTWARE FOR YOUR NON-PAYMENT DOES NOT ENTITLE YOU TO A REFUND, CREDIT OR REPAYMENT OF ANY INSTALMENT OR OTHER AMOUNT VALIDLY PAID BEFORE THAT SUSPENSION OR TERMINATION. IN THE CASE OF SUBSCRIPTION SOFTWARE, ANY SUBSCRIPTION FEE THAT BECAME DUE AND PAYABLE BEFORE THE EFFECTIVE DATE OF CANCELLATION, EXPIRY OR TERMINATION REMAINS DUE AND PAYABLE. NO SUBSCRIPTION FEE BECOMES PAYABLE SOLELY IN RESPECT OF A PERIOD AFTER THE SUBSCRIPTION HAS VALIDLY ENDED, EXCEPT WHERE THE SUBSCRIPTION IS SUBJECT TO AN AGREED FIXED TERM, MINIMUM COMMITMENT OR OTHER PAYMENT OBLIGATION THAT SURVIVES EARLIER CESSATION AND IS OTHERWISE ENFORCEABLE UNDER APPLICABLE LAW. REINSTATEMENT OF AN AFFECTED LICENSE DOES NOT OF ITSELF ALTER THE AGREED PRICE, PAYMENT SCHEDULE, SUBSCRIPTION TERMS OR ANY AMOUNT OTHERWISE VALIDLY DUE AND PAYABLE.
6.4 SUSPENSION AND NO FURTHER RIGHT OF USE: WHILE AN AFFECTED LICENSE IS SUSPENDED UNDER SECTION 6.1, 6.2, 6.3 OR 6.5, YOU HAVE NO RIGHT TO USE THE SOFTWARE UNDER THAT LICENSE EXCEPT TO THE EXTENT NECESSARY TO COMPLETE AN AUTHORISED REINSTATEMENT PROCESS, AND THE SOFTWARE MAY BE REMOTELY LOCKED, DEACTIVATED, DEREGISTERED OR OPERATED IN A RESTRICTED STATE. YOU MUST NOT CIRCUMVENT OR ATTEMPT TO CIRCUMVENT THE SUSPENSION OR ANY SOFTWARE PROTECTION MEASURE USED TO ENFORCE IT. IF THE AFFECTED LICENSE IS TERMINATED FOR NON-PAYMENT OR OTHER MATERIAL BREACH UNDER THIS SECTION 6, YOU ACKNOWLEDGE AND AGREE THAT FROM THE EFFECTIVE DATE OF TERMINATION YOU HAVE NO LEGAL OR EQUITABLE RIGHT OR CLAIM TO USE THE SOFTWARE UNDER THAT AFFECTED LICENSE. YOU MUST IMMEDIATELY CEASE ALL USE OF THE SOFTWARE UNDER THAT LICENSE AND REMOVE OR UNINSTALL ALL COPIES IN YOUR POSSESSION OR CONTROL. THE SOFTWARE ACTIVATED OR REGISTERED UNDER THE AFFECTED LICENSE MAY BE DEACTIVATED OR DEREGISTERED, AND FURTHER ACTIVATION OR REGISTRATION UNDER THAT LICENSE MAY BE REFUSED. WHERE APPLICABLE, ANY MEDIA, MATERIALS OR HARDWARE SECURITY DEVICE REQUIRED under the applicable License to be returned following termination shall be returned by you at your expense within thirty (30) days to the place of purchase or as otherwise directed by FC, subject to applicable law. FOR THE AVOIDANCE OF DOUBT, SUSPENSION OR TERMINATION OF AN AFFECTED LICENSE UNDER THIS SECTION 6 DOES NOT OF ITSELF AFFECT ANY OTHER LICENSE HELD BY YOU AND DOES NOT EXTINGUISH ANY PAYMENT OBLIGATION PRESERVED BY SECTION 6.3.1.
6.5 CHARGE-BACKS AND PAYMENT REVERSALS: IF FC OR THE RELEVANT AUTHORISED CHANNEL PARTICIPANT HAS DISCHARGED ITS MATERIAL OBLIGATIONS RELATING TO AN INSTALMENT SOFTWARE OR SUBSCRIPTION SOFTWARE PAYMENT, AND YOU INITIATE, PROCURE OR OBTAIN A CREDIT-CARD OR DEBIT-CARD CHARGE-BACK, PAYMENT REVERSAL, PAYMENT DISPUTE OR OTHER RECLAMATION OF FUNDS IN RESPECT OF AN AMOUNT THAT WAS VALIDLY DUE AND PAYABLE, OTHER THAN ON LAWFUL GROUNDS, YOU ACKNOWLEDGE AND AGREE THAT THIS CONSTITUTES A MATERIAL BREACH OF THIS AGREEMENT IN RELATION TO THE AFFECTED LICENSE. SUBJECT TO REASONABLE INVESTIGATION AND ANY MANDATORY APPLICABLE LAW: (I) FC OR THE RELEVANT AUTHORISED CHANNEL PARTICIPANT MAY CONTEST THE CHARGE-BACK, REVERSAL, DISPUTE OR RECLAMATION WITH THE RELEVANT BANK, CARD ISSUER, PAYMENT PROCESSOR OR PAYMENT PROVIDER, BUT ONLY WHERE THAT PERSON WAS THE MERCHANT, RECIPIENT OF THE PAYMENT OR IS OTHERWISE LAWFULLY ENTITLED TO CONTEST IT; (II) ONLY FC MAY SUSPEND OR TERMINATE THE AFFECTED LICENSE, BLOCK ACCESS TO ONLINE SERVICES OPERATED BY OR FOR IT IN CONNECTION WITH THAT LICENSE, REMOTELY DEACTIVATE OR DEREGISTER THE SOFTWARE UNDER THAT LICENSE, REFUSE FURTHER ACTIVATIONS OR REGISTRATIONS UNDER THAT LICENSE, OR SUSPEND OR TERMINATE AN ACCOUNT WITH FC TO THE EXTENT CONNECTED WITH THE DISPUTED PAYMENT; (III) ANY SUCH SUSPENSION OR TERMINATION SHALL BE GOVERNED BY SECTION 6.3; (IV) AN AUTHORISED SERVICE PROVIDER MAY TECHNICALLY IMPLEMENT A DECISION OF FC UNDER THIS SECTION BUT ACQUIRES NO INDEPENDENT CONTRACTUAL POWER, RIGHT OR DISCRETION; (V) FC, THE PERSON TO WHOM THE DISPUTED PAYMENT WAS DUE AND ANY AUTHORISED PARTY ACTING WITHIN THE SCOPE OF ITS AUTHORISED FUNCTION MAY, WHERE LEGALLY PERMITTED, DISCLOSE INFORMATION REASONABLY RELEVANT TO THE PAYMENT DISPUTE, INCLUDING YOUR IDENTITY AND TRANSACTION INFORMATION, TO THE RELEVANT BANK, CARD ISSUER, PAYMENT PROCESSOR, PAYMENT PROVIDER, AUTHORITY OR OTHER PERSON LEGALLY ENTITLED TO RECEIVE IT; AND (VI) FC OR OTHER PERSON TO WHOM AN AMOUNT IS VALIDLY OWED MAY TAKE LEGAL OR OTHER LAWFUL ACTION TO RECOVER THAT AMOUNT OR ENFORCE ITS RIGHTS. THIS SECTION 6.5 DOES NOT APPLY TO, AND NO BREACH ARISES MERELY FROM, A CHARGE-BACK, PAYMENT REVERSAL, PAYMENT DISPUTE OR OTHER RECLAMATION INITIATED OR EXERCISED ON LAWFUL GROUNDS, INCLUDING WHERE FC OR RELEVANT AUTHORISED CHANNEL PARTICIPANT HAS FAILED TO DISCHARGE A MATERIAL OBLIGATION OWED BY IT TO YOU RELATING TO THE DISPUTED PAYMENT, APPLICABLE PAYMENT-SERVICES LAW PROVIDES A RIGHT THAT CANNOT LAWFULLY BE EXCLUDED OR RESTRICTED, OR YOU EXERCISE ANY RIGHT THAT CANNOT LAWFULLY BE EXCLUDED, RESTRICTED OR MODIFIED UNDER APPLICABLE CONSUMER, SMALL-BUSINESS, UNFAIR-CONTRACT-TERMS OR OTHER MANDATORY LAW.
PART II
7. ADDENDA TO THE LICENSE AGREEMENT
7.1 ACADEMIC, EDUCATION STUDENT AND TEACHER ADDENDUM TO THE LICENSE
7.1.1 ACADEMIC EDITION SOFTWARE: If the Software is marked and/or installs and/or is licensed as: Academic, Education or Student and Teacher Edition you acknowledge and agree with FC and its Authorised Parties that you must qualify as, or be a certified “Academic or Education Provider” or a currently registered “Teacher” or an enrolled “Student” to use the Software. If the Software is identified as Academic, Education or Student and Teacher Edition Software (referred collectively herein as “Education Software”), your use of the Software is governed by the terms of this License and as set out by the terms of this section in addendum to this License Agreement herein. In the event of any conflict between the terms of this License Agreement and this Education Software addendum, the express terms of this addendum to this Agreement shall govern.
7.1.2 EDUCATION PROVIDER USE: So long as you remain qualified and/or certified as an “Academic or Education Provider” under the terms and conditions of section 7.1.1 (above), you may (a) install and use one (1) Copy of the Software on each of up to the Permitted Number of your compatible Computers; or (b) you may install the Permitted Number of Copies of the Software on the Permitted Number of Computer file server(s) within your Internal Network for the purpose of downloading and installing the Software on up to the Permitted Number of Computers within the same Internal Network. Notwithstanding anything to the contrary in this License Agreement, you may not (i) transfer or assign the Software or any copy thereof, or your License to use the Software to a third party; or (ii) use the Software in any way for any commercial purpose or in any commercial enterprise or business whatsoever; and (iii) pursuant to part (ii) the Software may only be used for academic instruction and/or education purposes in a non-commercial environment.
7.1.3 STUDENT AND TEACHER USE: So long as you remain a “Student or Teacher” under the terms and conditions of section 7.1.1 (above) you may install and use a maximum of two (2) Copies of the Software: one (1) Copy on one (1) Computer in your domicile and one (1) Copy on one (1), if applicable, portable Computer that is in your possession or control and predominantly for your personal use. Notwithstanding anything to the contrary in this License Agreement, you may not (i) transfer or assign the Software or any copy thereof, or your License to use the Software to a third party; or (ii) use the Software in any way for any commercial purpose or in any commercial enterprise or business whatsoever; and (iii) pursuant to part (ii) the Software may only be used for academic and/or education purposes in a non-commercial environment.
7.2 BETA SOFTWARE ADDENDUM TO THE LICENSE
7.2.1 BETA SOFTWARE: If the Software is marked and/or installs and/or is licensed as: Beta, Pre-Release, or Not For Resale Software (referred collectively herein as “Beta Software”), you acknowledge and agree with FC that such version of the Software is provided on an “as is” basis solely for testing purposes and it should only be used in a dedicated test environment that does not hold any risk of loss or damage to other software and data. If the Software is identified as Beta Software you are granted a nonexclusive License to use this version of the Software only, and your use of the Software is governed by the terms of this License and as set out by the terms of this section in addendum to this Agreement herein. You acknowledge and agree with FC that this Beta Software License does not entitle you to any written documentation, technical support or telephone assistance and although FC intends to distribute and license a commercial version of the Beta Software, FC reserves the right not to release a commercial version of the Beta Software or, if released, add, remove or alter features, components or licensing terms of the commercial version. In the event of any conflict between the terms of this License Agreement and this Beta Software addendum, the express terms of this addendum shall govern. Such License shall continue for the period specified in the Beta Software and/or under FC’s direction, after which time your License to use the Beta Software shall terminate and you must uninstall or entirely remove the Beta Software from all computers in your possession and/or control within thirty (30) days of such termination.
7.2.2 BETA SOFTWARE USE: You may install and use a maximum of two (2) Copies of the Software: one (1) Copy on one (1) Computer in your domicile and one (1) Copy on one (1), if applicable, portable Computer that is in your possession or control and predominantly for your personal use. Notwithstanding anything to the contrary in this License Agreement, you may not (i) transfer or assign the Software or any copy thereof, or your License to use the Software to a third party; or (ii) use the Software in any way for any commercial purpose or in any commercial enterprise or business whatsoever; and (iii) pursuant to part (ii) the Software may only be used for testing purposes in a non-commercial environment.
7.2.3 BETA SOFTWARE REPORTING: As part of testing Beta Software, you acknowledge and agree that FC, or an Authorised Service Provider acting on FC’s behalf, may ask you to provide feedback or your observations with respect to the Beta Software’s functionality and suitability for its intended purpose which you may or may not provide at your sole discretion. However, you acknowledge and agree with FC that any feedback, opinion, suggestion, recommendation, advice or other information that you voluntarily provide to FC, or to an Authorised Service Provider acting on FC’s behalf, regarding the Beta Software or any other Software of FC may be used, implemented, commercialised, modified, adapted, incorporated into the Software, or disregarded by FC in its discretion without notice to, consultation with, compensation to, or permission from you. You further acknowledge and agree that you shall have no claim, right, title or interest in any improvement, modification, enhancement, feature or functionality developed by FC that is based upon, derived from, or incorporates such feedback, opinion, suggestion, recommendation, advice or information. You further acknowledge and agree with FC that you shall make no claim or demands, intellectual or otherwise, or demand any remuneration in any form whatsoever from FC for any such feedback, opinion, suggestion or advice that you provide that either is, or is not, used in any subsequent or commercial version of the Beta Software. To the extent any such feedback is protected by copyright or any other Intellectual Property right, you grant FC a perpetual, irrevocable, worldwide, royalty-free, transferable and sublicensable license to use, reproduce, modify, adapt, publish, commercialise and otherwise exploit that feedback.
7.2.4 BETA SOFTWARE: NO WARRANTY: BETA SOFTWARE IS PRE-RELEASE SOFTWARE SUPPLIED SOLELY FOR TESTING PURPOSES. IT MAY CONTAIN ERRORS, DEFECTS OR INSTABILITIES, MAY NOT OPERATE CORRECTLY OR AT ALL, AND MAY DIFFER MATERIALLY FROM, OR NEVER BE RELEASED AS, A COMMERCIAL VERSION. SUBJECT TO ANY STATUTORY WARRANTIES WHICH CANNOT BE EXCLUDED, FC, ITS AUTHORISED PARTIES AND ITS SUPPLIERS PROVIDE THE BETA SOFTWARE ON AN AS-IS BASIS, AND THE WARRANTY DISCLAIMERS, EXCLUSIONS AND REMEDY LIMITATIONS IN SECTION 2.9 (ABOVE) APPLY TO THE BETA SOFTWARE AND ARE INCORPORATED INTO THIS SECTION BY REFERENCE AS IF SET OUT IN FULL, FOR THE BENEFIT OF FC, ITS AUTHORISED PARTIES AND ITS SUPPLIERS. FOR THE AVOIDANCE OF DOUBT, THE INCORPORATION OF SECTION 2.9 DOES NOT MAKE THE VOLUNTARY LIMITED WARRANTY IN SECTION 2.8 APPLICABLE TO THE BETA SOFTWARE. WITHOUT LIMITING SECTION 2.9, FC AND ITS AUTHORISED PARTIES DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE BETA SOFTWARE, AND THE ENTIRE RISK ARISING OUT OF THE INSTALLATION, TESTING AND USE OF THE BETA SOFTWARE, INCLUDING ANY RISK OF LOSS OF OR DAMAGE TO OTHER SOFTWARE, HARDWARE OR DATA, IS ASSUMED BY YOU. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS, SEE SECTION 8 FOR SPECIFIC PROVISIONS RELATED TO OTHER JURISDICTIONS WHICH MAY BE APPLICABLE TO YOU.
7.2.5 BETA SOFTWARE: LIMITATION OF LIABILITY: THE EXCLUSIONS AND LIMITATIONS OF LIABILITY IN SECTION 2.10 (ABOVE), OTHER THAN THE AGGREGATE LIABILITY CAP SET OUT IN THAT SECTION, APPLY TO ANY LOSS, DAMAGES, CLAIMS OR COSTS WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THE BETA SOFTWARE OR THIS SECTION 7.2, AND ARE INCORPORATED INTO THIS SECTION BY REFERENCE AS IF SET OUT IN FULL, FOR THE BENEFIT OF FC, ITS AUTHORISED PARTIES AND ITS SUPPLIERS, AND WITHOUT NARROWING THE LEGAL THEORIES OR THE CATEGORIES OF LOSS, DAMAGE, CLAIM OR COST EXCLUDED OR LIMITED BY SECTION 2.10. IN ADDITION, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF FC, ITS AUTHORISED PARTIES AND ITS SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH THE BETA SOFTWARE UNDER THIS SECTION 7.2 SHALL BE LIMITED TO THE AMOUNT PAID FOR THE BETA SOFTWARE, 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. NOTHING IN THIS SECTION EXCLUDES OR LIMITS ANY LIABILITY THAT CANNOT LAWFULLY BE EXCLUDED, INCLUDING LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE. THIS LIMITATION OF LIABILITY MAY NOT BE VALID IN SOME JURISDICTIONS AND MAY NOT APPLY TO YOU, SEE SECTION 8 FOR SPECIFIC PROVISIONS RELATED TO OTHER JURISDICTIONS WHICH MAY BE APPLICABLE TO YOU.
7.3 DEMONSTRATION SOFTWARE ADDENDUM TO THE LICENSE
7.3.1 DEMONSTRATION SOFTWARE: If the Software is marked and/or installs and/or is licensed as: Demo, Demonstration, Evaluation, Free-Trial, or Try-Out Software (referred collectively herein as “Demonstration Software”), you acknowledge and agree with FC that such version of the Software is provided on an “as is” basis solely for evaluation purposes and it should only be used in a dedicated test environment that does not hold any risk of loss or damage to other software and data. If the Software is identified as Demonstration Software you are granted a nonexclusive License to use this version of the Software only, and your use of the Software is governed by the terms of this License as set out by the terms of this section in addendum to this License Agreement herein. You acknowledge and agree with FC that this Demonstration Software License does not entitle you to any written documentation, technical support or telephone assistance and although FC intends to distribute and license a commercial version of the Demonstration Software, FC reserves the right not to release a commercial version of the Demonstration Software or, if released, add, remove or alter features, components or licensing terms of the commercial version. In the event of any conflict between the terms of this License Agreement and this Demonstration Software addendum, the express terms of this addendum shall govern. Such License shall continue for the period specified in the Demonstration Software, after which time your License to use the Demonstration Software shall terminate without notice. Upon termination, you must cease all use of the Demonstration Software and promptly uninstall and remove all copies in your possession or control.
7.3.2 DEMONSTRATION SOFTWARE: NO WARRANTY: DEMONSTRATION SOFTWARE IS SUPPLIED SOLELY FOR EVALUATION PURPOSES AND MAY CONTAIN ERRORS OR DEFECTS OR DIFFER MATERIALLY FROM ANY COMMERCIAL VERSION. SUBJECT TO ANY STATUTORY WARRANTIES WHICH CANNOT BE EXCLUDED, FC, ITS AUTHORISED PARTIES AND ITS SUPPLIERS PROVIDE THE DEMONSTRATION SOFTWARE ON AN AS-IS BASIS, AND THE WARRANTY DISCLAIMERS, EXCLUSIONS AND REMEDY LIMITATIONS IN SECTION 2.9 (ABOVE) APPLY TO THE DEMONSTRATION SOFTWARE AND ARE INCORPORATED INTO THIS SECTION BY REFERENCE AS IF SET OUT IN FULL, FOR THE BENEFIT OF FC, ITS AUTHORISED PARTIES AND ITS SUPPLIERS. FOR THE AVOIDANCE OF DOUBT, THE INCORPORATION OF SECTION 2.9 DOES NOT MAKE THE VOLUNTARY LIMITED WARRANTY IN SECTION 2.8 APPLICABLE TO THE DEMONSTRATION SOFTWARE. WITHOUT LIMITING SECTION 2.9, FC AND ITS AUTHORISED PARTIES DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE DEMONSTRATION SOFTWARE, AND THE ENTIRE RISK ARISING OUT OF THE INSTALLATION, EVALUATION AND USE OF THE DEMONSTRATION SOFTWARE, INCLUDING ANY RISK OF LOSS OF OR DAMAGE TO OTHER SOFTWARE, HARDWARE OR DATA, IS ASSUMED BY YOU. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS, SEE SECTION 8 FOR SPECIFIC PROVISIONS RELATED TO OTHER JURISDICTIONS WHICH MAY BE APPLICABLE TO YOU.
7.3.3 DEMONSTRATION SOFTWARE: LIMITATION OF LIABILITY: THE EXCLUSIONS AND LIMITATIONS OF LIABILITY IN SECTION 2.10 (ABOVE), OTHER THAN THE AGGREGATE LIABILITY CAP SET OUT IN THAT SECTION, APPLY TO ANY LOSS, DAMAGES, CLAIMS OR COSTS WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THE DEMONSTRATION SOFTWARE OR THIS SECTION 7.3, AND ARE INCORPORATED INTO THIS SECTION BY REFERENCE AS IF SET OUT IN FULL, FOR THE BENEFIT OF FC, ITS AUTHORISED PARTIES AND ITS SUPPLIERS, AND WITHOUT NARROWING THE LEGAL THEORIES OR THE CATEGORIES OF LOSS, DAMAGE, CLAIM OR COST EXCLUDED OR LIMITED BY SECTION 2.10. IN ADDITION, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF FC, ITS AUTHORISED PARTIES AND ITS SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH THE DEMONSTRATION SOFTWARE UNDER THIS SECTION 7.3 SHALL BE LIMITED TO THE AMOUNT PAID FOR THE DEMONSTRATION SOFTWARE, 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. NOTHING IN THIS SECTION EXCLUDES OR LIMITS ANY LIABILITY THAT CANNOT LAWFULLY BE EXCLUDED, INCLUDING LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE. THIS LIMITATION OF LIABILITY MAY NOT BE VALID IN SOME JURISDICTIONS AND MAY NOT APPLY TO YOU, SEE SECTION 8 FOR SPECIFIC PROVISIONS RELATED TO OTHER JURISDICTIONS WHICH MAY BE APPLICABLE TO YOU.
7.4 OEM EDITION ADDENDUM TO THE LICENSE
7.4.1 OEM EDITION SOFTWARE: If the Software is marked and/or installs and/or is licensed as: Bundled, Bundleware, Included, OEM, OEM Edition or OEM Version (referred collectively herein as “OEM Edition”) you acknowledge and agree with FC that such OEM Edition Software is supplied under license to a third party manufacturer that is an Authorised Channel Participant authorised for the applicable OEM Edition and included (bundled) with such third party machines and devices including but not limited to: CNC, engraving, laser, plotting, printing, routing and vinyl cutting machines and devices (hereafter “Hardware”) as described in the notice located on the storage media and/or in the OEM Edition Software’s documentation and you are not entitled to use OEM Edition Software unless it was purchased in accordance therewith. You are not entitled to use OEM Edition Software if you obtained it separately from an approved piece of hardware assigned to the Software and/or in the Software’s documentation or as a stand-alone Software. If the Software is identified as OEM Edition Software, your use of the Software is governed by the terms of this License and as set out by the terms of this section in addendum to this License Agreement herein. In the event of any conflict between the terms of this License Agreement and this OEM Edition Software addendum, the express terms of this addendum shall govern.
7.4.2 OEM EDITION USE: You may install and use up to the maximum number of copies of the Software on the maximum numbers of computers as published in the Software’s documentation and on its website for and in conjunction only with the approved piece of hardware assigned to the Software.
7.4.3 OEM LICENSE TRANSFER: Notwithstanding anything to the contrary in the License Agreement, you may not transfer or assign OEM Edition Software or any copy thereof, or your License to use this OEM Software to a third party unless: (a) you also transfer (i) this License Agreement and OEM Edition Software addendum, and (ii) the applicable Product Serial Number (PSN), Software License Number (SLN), Software Product Number (SPN), Customer Number or other applicable Software License or Product identifier, where applicable the Software’s media including but not limited to discs and product documentation provided by FC or its Authorised Parties, and all other software or hardware bundled, packaged, downloaded or preinstalled with the Software, including all copies, conversions, patches, service packs, upgrades, updates and prior versions; and (b) you retain no copies, conversions, patches, service packs, upgrades, updates and prior versions, including backups and copies stored on a computer in your possession or control; and (c) you also transfer the approved piece of Hardware assigned to the Software and/or in the Software’s documentation; and (d) the receiving party acknowledges and accepts the terms and conditions of this License Agreement and any other terms and conditions under which you purchased a valid License to or for the Software.
7.4.4 DISTRIBUTION CHANNELS (REFER TO SECTION 7.6): OEM Edition Software may be distributed through the OEM Channel as further described in Section 7.6. Section 7.6 supplements this Section 7.4. Section 7.4.5 applies to OEM hardware bundled with the Software. To the extent of any inconsistency between this Section 7.4 and Section 7.6 concerning the identity of the Licensor or the operation of authorised channels, Section 7.6 prevails.
7.4.5 OEM HARDWARE DISCLAIMER: FC MAKES NO REPRESENTATION THAT ANY OEM HARDWARE BUNDLED WITH THE SOFTWARE IS SUITABLE FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FC DOES NOT VOLUNTARILY ASSUME OR ACCEPT LIABILITY ARISING SOLELY FROM DEFECTS IN OEM HARDWARE, FIRMWARE, ELECTRONICS, DRIVERS, MECHANICAL SYSTEMS, POWER SYSTEMS OR MANUFACTURER-SUPPLIED SOFTWARE MERELY BECAUSE THE SOFTWARE IS BUNDLED WITH SUCH HARDWARE. THE SOFTWARE LICENSE GRANTED HEREIN EXTENDS SOLELY TO THE SOFTWARE AND DOES NOT EXTEND TO ANY OEM HARDWARE DEVICE WITH WHICH THE SOFTWARE MAY BE BUNDLED. CLAIMS RELATING TO OEM HARDWARE SHOULD BE DIRECTED TO THE PERSON RESPONSIBLE FOR THAT HARDWARE UNDER THE APPLICABLE TRANSACTION AND APPLICABLE LAW, INCLUDING WHERE APPLICABLE THE RELEVANT HARDWARE MANUFACTURER, SELLER, IMPORTER OR OTHER SUPPLIER. NOTHING IN THIS SECTION EXCLUDES, RESTRICTS OR MODIFIES ANY LIABILITY OF FC THAT CANNOT LAWFULLY BE EXCLUDED, RESTRICTED OR MODIFIED WHERE THAT PERSON IS ITSELF A SELLER, SUPPLIER, IMPORTER, MANUFACTURER OR OTHER PERSON RESPONSIBLE UNDER APPLICABLE LAW IN THE PARTICULAR TRANSACTION.
7.5 SOFTWARE DEVELOPMENT KIT ADDENDUM TO THE LICENSE
7.5.1 SOFTWARE DEVELOPMENT KIT: If the Software contains an FC Software Developer’s Kit (referred collectively herein as “SDK”), your use of the SDK portion of the Software is governed by the terms of this License and as set out by the terms of this section in addendum to this License Agreement herein. In the event of any conflict between the terms of this License Agreement and this SDK addendum, the express terms of this addendum to this License Agreement shall govern. BY USING THIS SDK, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE SDK.
7.5.2 GRANT OF SDK LICENSE: The SDK may include certain example source code (not compiled), tools, utilities, libraries, program interfaces and text files relating to the Software (referred collectively herein as “FC Extensions”). FC grants you the following limited, non-exclusive and non-transferable rights to the SDK.
7.5.3 USE OF THE FC EXTENSIONS: FC grants to you (i) a nonexclusive and non-transferable license to adapt and use the sample client software and source-code fragments expressly included in the SDK and identified by FC as modifiable, including updates, solely to enable your Developer Application to connect to and communicate with the Software, including but not limited to its file types and formats, and (ii) a nonexclusive and non-transferable license to adapt and use the other FC Extensions for the purpose(s) solely for which they are intended, including but not limited to Plug-Ins and Snap-Ins for the Software.
7.5.4 LICENSE TO DISTRIBUTE: For the purposes of this Section 7.5, "Developer Application" means the software application independently developed by you that interfaces with the Software through the SDK or FC Extensions. FC grants you the right to copy and distribute FC Extensions intended for distribution with your Developer Application, excluding source code fragments, but including but not limited to exact copies of documentation, with such Developer Application. You agree that you will distribute such FC Extensions with your Developer Application to your end users pursuant to such license addendums as you customarily use to distribute other similar products. Except as permitted in this Addendum, you shall contractually prohibit your end users from: (i) using, copying (except as necessary for backup or archival purposes or to the extent expressly permitted by applicable law and to the extent that FC is not permitted by that applicable law to exclude or limit such rights), modifying, or transferring the FC Extensions or any copy in whole or in part, or granting any rights in the FC Extensions; (ii) translating, reverse engineering, decompiling, disassembling, or creating derivative works based on the FC Extensions; or (iii) renting or leasing the FC Extensions. For the avoidance of doubt, the restrictions in this Section 7.5.4 apply to the FC Extensions, runtime components, documentation and other distributable materials of FC, and do not of themselves restrict your end users’ rights in respect of your Developer Application.
7.5.5 SUPPORT: You agree with FC that you shall provide support to your end users for your Developer Application and for its implementation and use of the FC Extensions.
7.5.6 DESCRIPTION OF OTHER LIMITATIONS AND OBLIGATIONS: For all FC Extensions, you agree with FC to treat those portions of the FC Extensions not authorised for distribution as confidential. Your obligations under this Section shall survive the expiration, cancellation, rescission, or earlier termination of this Agreement and shall continue for so long as the information protected hereby remains non-public and confidential and has not fallen into the public domain through no fault of yours, subject to applicable law. Notwithstanding the foregoing, with respect to source code fragments in the FC Extensions, you agree to hold them in strict confidence in perpetuity. You agree with FC that, except as expressly permitted in Sections 7.5.3 and 7.5.4 (above), you will not use the FC Extensions for any other purpose and will not translate, reverse engineer, decompile, disassemble, or otherwise alter the FC Extensions. You further agree with FC that you shall not modify or remove functions or copyright, trade mark, or patent notices in the FC Extensions, except as may be authorised by this Addendum or as may be authorised by FC in writing. You hereby agree, that to the extent that any applicable laws give you the right to perform any of the aforementioned activities without FC’s consent in order to gain certain information about the FC Extensions for purposes specified in the respective statutes, before you exercise any such rights, you shall first request such information from FC in writing detailing the purpose for which you need the information. Only if and after FC, acting reasonably, partly or completely denies your request, shall you exercise your statutory rights. To the extent permitted by applicable law, you agree to allow FC to audit your compliance with the terms of this Agreement upon reasonable prior written notice, during normal business hours, and in a manner that does not unreasonably interfere with your business operations.
7.5.7 INTELLECTUAL PROPERTY RIGHTS: No title to or ownership of the Software is transferred to you. FC and/or its Suppliers own and retain all title and ownership of all Intellectual Property rights in and to the SDK and FC Extensions, including any adaptations or copies of those FC materials. You retain ownership of your independently developed Developer Application (excluding any FC Extensions, runtime components, documentation or other FC Intellectual Property incorporated into it). You acquire only a limited License to use this SDK.
7.5.8 EXPORT RESTRICTION: You agree with FC that you will not export, re-export or import the SDK or FC Extensions in any form without the appropriate government licenses. You understand that under no circumstances may the SDK or FC Extensions be exported to any country subject to US embargo or to US designated denied persons or prohibited entities or US specially designated nationals, or in violation of any other applicable export control, sanctions, customs or import laws. See section 2.5.6 (above) and, where applicable, sections 8.1.2.3 and 8.1.2.4 below, for more information.
7.5.9 SDK: NO WARRANTY: SUBJECT TO ANY STATUTORY WARRANTIES WHICH CANNOT BE EXCLUDED, FC, ITS AUTHORISED PARTIES AND ITS SUPPLIERS PROVIDE THE SDK AND FC EXTENSIONS ON AN AS-IS BASIS, AND THE WARRANTY DISCLAIMERS, EXCLUSIONS AND REMEDY LIMITATIONS IN SECTION 2.9 (ABOVE) APPLY TO THE SDK AND FC EXTENSIONS AND ARE INCORPORATED INTO THIS SECTION BY REFERENCE AS IF SET OUT IN FULL, FOR THE BENEFIT OF FC, ITS AUTHORISED PARTIES AND ITS SUPPLIERS. FOR THE AVOIDANCE OF DOUBT, THE INCORPORATION OF SECTION 2.9 DOES NOT MAKE THE VOLUNTARY LIMITED WARRANTY IN SECTION 2.8 APPLICABLE TO THE SDK OR FC EXTENSIONS. WITHOUT LIMITING SECTION 2.9: (I) FC AND ITS AUTHORISED PARTIES DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SDK AND FC EXTENSIONS, AND THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF USING THE SDK AND FC EXTENSIONS IS ASSUMED BY YOU; (II) THE SDK IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE WITH ANY EQUIPMENT THE FAILURE OF WHICH COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE; AND (III) YOU ASSUME THE RESPONSIBILITY FOR THE SELECTION OF THE SDK AND FC EXTENSIONS AND RESULTS OBTAINED FROM THEM. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS, SEE SECTION 8 FOR SPECIFIC PROVISIONS RELATED TO OTHER JURISDICTIONS WHICH MAY BE APPLICABLE TO YOU.
7.5.10 SDK: LIMITATION OF LIABILITY: THE EXCLUSIONS AND LIMITATIONS OF LIABILITY IN SECTION 2.10 (ABOVE), OTHER THAN THE AGGREGATE LIABILITY CAP SET OUT IN THAT SECTION, APPLY TO ANY LOSS, DAMAGES, CLAIMS OR COSTS WHATSOEVER ARISING FROM YOUR USE OF THE SDK OR FC EXTENSIONS OR FROM YOUR PARTICIPATION IN HOSTING OR USE OF THIRD PARTY PRODUCTS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, AND ARE INCORPORATED INTO THIS SECTION BY REFERENCE AS IF SET OUT IN FULL, FOR THE BENEFIT OF FC, ITS AUTHORISED PARTIES AND ITS SUPPLIERS, AND WITHOUT NARROWING THE LEGAL THEORIES OR THE CATEGORIES OF LOSS, DAMAGE, CLAIM OR COST EXCLUDED OR LIMITED BY SECTION 2.10. IN ADDITION, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF FC, ITS AUTHORISED PARTIES AND ITS SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH THE SDK AND FC EXTENSIONS UNDER THIS SECTION 7.5 SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS SDK 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. NOTHING IN THIS SECTION EXCLUDES OR LIMITS ANY LIABILITY THAT CANNOT LAWFULLY BE EXCLUDED, INCLUDING LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE. THIS LIMITATION OF LIABILITY MAY NOT BE VALID IN SOME JURISDICTIONS AND MAY NOT APPLY TO YOU, SEE SECTION 8 FOR SPECIFIC PROVISIONS RELATED TO OTHER JURISDICTIONS WHICH MAY BE APPLICABLE TO YOU.
7.5.11 SDK: TERMINATION: The license granted under this Section 7.5 remains effective until terminated in accordance with this Section. You may terminate the license granted under this Section 7.5 at any time by permanently destroying all copies of the SDK and FC Extensions and providing written notice to FC. FC may terminate the license granted under this Section 7.5 at any time for your breach of this Section. Unauthorised copying of the SDK or FC Extensions or the accompanying documentation or otherwise failing to comply with the License Grant of this Agreement will result in automatic termination of the license granted under this Section 7.5 and will make available to FC all other legal remedies (and, where the breach also constitutes a fundamental, material or serious breach of the remainder of this Agreement, FC may exercise its other termination rights under this Agreement). You agree and acknowledge that your fundamental, material, or serious breach of this Agreement shall cause FC, and any Supplier to the extent of its own independently held rights, irreparable harm for which monetary damages alone would be inadequate and that, to the extent permitted by applicable law, FC, and any Supplier in respect of its own independently held rights, shall be entitled to injunctive or equitable relief without the need for posting a bond, where permitted by applicable law. Upon termination under this Section 7.5, the license granted under this Section will terminate and you must immediately and permanently destroy the SDK and accompanying documentation, and all backup copies thereof.
7.5.12 SDK: INDEMNIFICATION: You agree to indemnify and hold FC, its Authorised Parties and its Suppliers harmless from and against any and all costs, liabilities, claims or demands, including legal fees (on a solicitor and own client basis), arising from the use, reproduction or distribution of your Developer Application, its documentation, or its promotional or sales materials, except to the extent such claim, liability, loss, damage or expense is caused by the negligence, fraud or wilful misconduct of FC, its Authorised Parties or Suppliers.
7.6 DISTRIBUTION CHANNELS ADDENDUM TO THE LICENSE
7.6.1 APPLICATION: This Section 7.6 applies to the distribution of the Software through the Direct Channel and the OEM Channel. In the event of any conflict between the terms of this License Agreement and this Section 7.6, the express terms of this Section shall govern.
7.6.2 LICENSOR: FC is the Licensor under this Agreement for Software distributed through either the Direct Channel or the OEM Channel, including where hardware bundled with the Software is manufactured in or exported from any country and supplied to an end user in any other country. FC is responsible for the Licensor obligations under this Agreement, including license administration, warranty and contractual Technical Support, subject to the terms, exclusions and limitations of this Agreement and mandatory applicable law. Account, Customer Portal, licensing, Validation, Communications, data-processing, warranty-administration and related operational functions may be performed by FC or by an Authorised Service Provider acting within the scope of its authority.
7.6.3 CHANNELS AND SUPPORT: The Software may be distributed by FC through the OEM Channel or the Direct Channel, including authorised worldwide distribution through manufacturers, OEM partners, distributors and dealers. Where the Software is distributed through the OEM Channel, Technical Support may be provided or administered by FC or by the authorised manufacturer, OEM partner, distributor or dealer designated by FC or from whom the applicable hardware or Software was obtained. Where the Software is distributed through the Direct Channel, Technical Support is provided or administered by FC or by an Authorised Service Provider acting on its behalf. The provision or administration of Technical Support by an Authorised Channel Participant or Authorised Service Provider does not make that person or entity the warrantor of the Software.
7.6.4 WORLDWIDE OEM DISTRIBUTION AND LICENSE SCOPE: FC may authorise manufacturers, OEM partners, distributors, dealers and other authorised channels to bundle, export, import, distribute, resell and supply the Software, with or without associated hardware, to end users in any country or territory authorised by FC. Each Software License remains subject to any territory, channel, product, hardware, activation, transfer or use restriction expressly identified in the applicable license record or Software documentation, or in authorised distribution terms; a restriction contained in authorised distribution terms binds you only where and to the extent that those terms were disclosed or made available to you and validly incorporated into your transaction at or before supply or activation, as permitted by applicable law. Unauthorised distribution, resale, transfer or use does not enlarge the License, create a new License, or impose any warranty, support, distribution or other obligation beyond this Agreement or mandatory applicable law.
7.6.5 INTELLECTUAL PROPERTY: Sections 2.2 and 2.2.1 apply to the Software. No ownership or Intellectual Property right is transferred or granted to you except for the limited rights expressly granted under this Agreement. All rights not expressly granted are reserved by their respective lawful owners, each of whom may protect and enforce its own rights to the extent permitted by applicable law.
7.6.6 MANDATORY CONSUMER AND LOCAL LAW: Where the Software is licensed or supplied to an end user through the Direct Channel or OEM Channel, the transaction and use of the Software may be subject to mandatory consumer protection, product-liability, privacy, jurisdictional or other laws applicable to the end user, seller, transaction or place of use. Any right or remedy that cannot lawfully be excluded, restricted or modified shall apply notwithstanding this Agreement, but only to the extent required by that mandatory law. Nothing in this Section creates or expands any voluntary right, remedy, warranty, refund, return, support or other obligation beyond this Agreement or mandatory applicable law.
7.7 AUTHORISED RESELLER EDITION ADDENDUM TO THE LICENSE
7.7.1 AUTHORISED RESELLER EDITION: Where the Software is produced by FC for an Authorised Reseller and is identified, marked, branded or licensed as an Authorised Reseller Edition (each an “Authorised Reseller Edition”), this Agreement applies as modified by this Section 7.7. An “Authorised Reseller” means a business appointed by FC under a separate reseller or OEM agreement to offer one or more editions of the Software, produced by FC, to end-users. An Authorised Reseller Edition: (i) is developed and produced by FC and remains the Software for the purposes of this Agreement; (ii) may incorporate the Authorised Reseller’s user interface, branding, product name, logos and marks (the “Reseller Attributes”); (iii) may be licensed on a one-time, instalment or Subscription basis (see Sections 6.1 and 6.2); and (iv) may be bundled with hardware (including but not limited to CNC, engraving, laser, plotting, printing, routing and vinyl cutting machines and devices) manufactured by, or by a third party for or on behalf of, the Authorised Reseller. For clarity, an Authorised Reseller Edition is distinct from the OEM Edition under Section 7.4 and may also be supplied as an OEM-bundled product under this Section 7.7. Where an Authorised Reseller Edition is also bundled with hardware, this Section 7.7 prevails over Section 7.4 to the extent of any inconsistency.
7.7.2 LICENSOR: FC grants the Software License for an Authorised Reseller Edition directly to the end-user. The Authorised Reseller is an independent contractor, is not the Licensor, acquires no ownership of any Intellectual Property in the Software, and has no authority to bind FC or vary this Agreement.
7.7.3 TERRITORY: Subject to applicable export laws (see Section 2.5.6 and, where applicable, Sections 8.1.2.3 and 8.1.2.4) and to any territory agreed between FC and the Authorised Reseller, FC may license, distribute and supply the Authorised Reseller Edition to end-users in any jurisdiction. For the avoidance of doubt, an Authorised Reseller Edition is governed by this Section 7.7 and, to the extent applicable, Section 7.6.
7.7.4 INTELLECTUAL PROPERTY AND RESELLER ATTRIBUTES: All Intellectual Property rights in the Software (including the code, components, modules, algorithms, designs, methods and underlying technologies) are and remain owned by FC and its Suppliers as set out in Sections 2.2 and 2.2.1. The Reseller Attributes do not make the Authorised Reseller the Licensor, do not become FC trade marks merely because they appear in the Software, and do not grant you any right to extract, reproduce, modify, distribute or otherwise exploit them except as expressly permitted by their lawful owner.
7.7.5 WARRANTY, SUPPORT AND LIABILITY: Except as otherwise agreed in writing, the warranty, disclaimers, limitation of liability and other protections in this Agreement (including Sections 2.8 through 2.8.5, 2.9, 2.10, 2.14 through 2.14.9 and 2.15) apply to the Authorised Reseller Edition for the benefit of FC and its Suppliers to the same extent as for any other edition of the Software. Where the Authorised Reseller Edition is bundled with hardware, the OEM hardware disclaimer and mandatory-law qualification in Section 7.4.5 apply. The transfer conditions in Section 7.4.3 apply to any transfer of an Authorised Reseller Edition that is bundled with hardware.
PART III
8. COUNTRY SPECIFIC TERMS IN ADDENDUM TO THIS LICENSE
If you obtained the Software from FC or through a channel authorised by FC in a country listed below, and such country is your usual domicile, then Sections 2.8, 2.8.1, 2.8.2, 2.8.3, 2.8.4, 2.8.5, 2.9, 2.10, 3.6, 5.1.3, 5.1.4, 7.2.4, 7.2.5, 7.3.2, 7.3.3, 7.5.9, and 7.5.10 (above) and other warranty and disclaimer provisions contained in this License (including all sections in addendum), are to the extent inconsistent with these sections, replaced, amended or appended to by the country specific terms in addendum to this Agreement, as set forth below: Where mandatory law of a country or territory not specifically listed below applies to you, the Software License, transaction or claim, Section 8.0.2 applies.
8.0 APPLICATION AND INTERPRETATION OF PART III
8.0.1 INTERPRETATION: A country-specific provision in this Part III that replaces, amends or supplements Section 2.10 or another exclusion, disclaimer, limitation, indemnity or remedy applies to FC and also benefits every person or entity expressly protected by the provision being replaced, amended or supplemented, to the same extent and subject always to mandatory applicable law. No manufacturer, OEM partner, distributor, dealer, reseller, service provider or other person becomes the Licensor merely because it distributes, supplies, administers or supports the Software or associated hardware. Where a provision of this Part III expresses a general Software-liability cap by reference to the amount or charges paid for the Software License, and the Software is OEM Software supplied, included or bundled with hardware for which no separate Software License price was charged to the Licensee, no part of the purchase price or value of the hardware or OEM bundle shall be treated as an amount or charge paid for the Software License for the purpose of that liability cap, unless mandatory applicable law or an express country-specific term requires a different measure. Where a provision of this Part III expresses a general Software-liability cap by reference to the amount or charges paid for the Software License, that cap is measured, for Subscription Software, by the Subscription fees actually paid for the affected License during the twelve (12) months immediately preceding the event first giving rise to the claim (or, if the Subscription has existed for less than twelve (12) months, the Subscription fees paid since commencement), unless mandatory applicable law or an express country-specific term requires a different measure.
8.0.2 UNLISTED JURISDICTIONS AND MANDATORY LOCAL LAW: Where mandatory law of a country or territory not specifically listed in this Part III applies to you, the Software License, transaction or claim, this Agreement remains subject to that mandatory law to the extent it cannot lawfully be excluded, restricted or modified by agreement. Any provision of this Agreement concerning a warranty, guarantee, refund, withdrawal, cancellation, remedy, limitation or exclusion of liability, time limit, Subscription renewal or cancellation, governing law or jurisdiction applies only to the extent permitted by that mandatory law. No country-specific provision in this Part III applies by analogy to an unlisted country or territory. Nothing in this Section creates, expands or implies any right, remedy, warranty, refund, cancellation or other obligation beyond that required by mandatory applicable law; where no such mandatory law requires otherwise, this Agreement applies without modification.
8.1 THE AMERICAS
8.1.1 PERU
8.1.1.1 PERU: LIMITATION OF LIABILITY: FOR SECTIONS 2.10, 5.1.4, 7.2.5, 7.3.3 AND 7.5.10 (ABOVE): THE FOLLOWING IS ADDED AT THE END OF THIS SECTION:
In accordance with Article 1328 of the Peruvian Civil Code, the limitations and exclusions specified in this section will not apply to damages caused by FC’s wilful misconduct (“dolo”) or gross negligence (“culpa inexcusable”).
8.1.2 UNITED STATES OF AMERICA (“UNITED STATES”)
8.1.2.1 GENERAL PROVISIONS: Section 3: The following replaces section 3.6 in its entirety: LIMITATION TO BRING AN ACTION: You acknowledge and agree that neither will FC nor its Authorised Parties, nor will you, bring a legal action under this Agreement more than two (2) years after the cause of action arose unless otherwise provided by local law without the possibility of contractual waiver or limitation. This limitation does not apply to claims relating to Intellectual Property, confidentiality, fraud, unpaid fees or indemnities, to applications for injunctive or equitable relief, or to any claim for which the limitation period cannot lawfully be shortened.
8.1.2.2 GENERAL PROVISIONS FOR SECTION 3 (ABOVE): THE FOLLOWING SECTIONS 8.1.2.3 THROUGH 8.1.2.7 ARE ADDED AT THE END OF SECTION 3:
8.1.2.3 EXPORT RULES: You agree that the Software will not be exported, re-exported, transferred, released, downloaded, transmitted or otherwise made available, directly or indirectly, except in compliance with the United States Export Administration Regulations, applicable sanctions administered by the United States Department of the Treasury’s Office of Foreign Assets Control, and any other applicable United States export-control or sanctions law (collectively, “US Export Laws”). Without limiting the foregoing, you shall not export, re-export, transfer, release, download, transmit or otherwise make the Software available: (i) to or within any country, territory or destination where doing so is prohibited by US Export Laws; (ii) to any person or entity identified on an applicable denied, debarred, restricted-party, specially designated national, blocked-person or equivalent list, or to an entity owned or controlled by such a person, to the extent prohibited by applicable law; (iii) to a prohibited end user or for a prohibited end use; or (iv) without any license, authorisation or approval required by applicable law. You represent and warrant to FC and its Authorised Parties that you are not a prohibited or restricted party under applicable US Export Laws and are not knowingly acting on behalf of such a party in connection with the Software. You are also responsible for compliance with all other export, import, sanctions and customs laws applicable to you. Where applicable law prohibits FC from providing the Software, Updates, Upgrades, Technical Support or related services to you, FC may withhold or suspend them to the extent required by that law; an Authorised Party may cease only the particular service that it is authorised to provide and is legally required to cease, and acquires no power of FC.
8.1.2.4 EXPRESS RESTRICTIONS: You represent and warrant to FC that you will not use the Software for and will not allow the Software to be used for, any purposes prohibited by United States law, including, without limitation, for the development, design, manufacture, or production of nuclear, chemical, or biological weapons of mass destruction.
8.1.2.5 RIGHTS FORFEITED: All rights to use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this Agreement, subject to the notice and cure provisions of Section 3.7.2, any provision of this Agreement that expressly permits immediate suspension, termination or other protective action, and any mandatory requirements of applicable law.
8.1.2.6 NOTICE TO US GOVERNMENT END USERS: Where the Software is acquired by or for the United States Government, or by a contractor or subcontractor for such acquisition, the acquisition and licensing of the Software are subject to applicable United States federal procurement law, including, where applicable, 48 C.F.R. Sections 12.212 and 27.405-3 and DFARS Subpart 227.72, including Section 227.7202.
8.1.2.7 COMMERCIAL COMPUTER SOFTWARE: To the extent the Software or its Documentation qualifies as commercial computer software or commercial computer software documentation under the applicable FAR or DFARS provisions, it is offered for US Government acquisition under the license terms customarily provided to the public, to the extent those terms are consistent with applicable federal law and otherwise satisfy the Government’s needs. Under 48 C.F.R. Section 12.212, the Government has only those rights specified in the applicable license contained in any addendum to the contract, subject to applicable federal law. Where DFARS Subpart 227.72 applies, including Section 227.7202-3, the Government has only those rights specified in the license under which the commercial computer software or commercial computer software documentation was obtained, unless additional rights are separately negotiated and expressly stated in the applicable procurement contract, license agreement or addendum. Nothing in this Agreement purports to override mandatory United States federal procurement law. Unpublished rights are reserved under the copyright laws of the United States.
8.1.3 CANADA: CONSUMER RIGHTS: Where you are a consumer and mandatory federal, provincial or territorial law in Canada applies, nothing in this Agreement excludes, restricts or modifies any right, remedy, guarantee, warranty or protection that cannot lawfully be excluded, restricted or modified. Any exclusion, disclaimer, limitation of liability, remedy limitation, governing-law or jurisdiction provision in this Agreement applies only to the extent permitted by such mandatory law. For consumers in Québec, this Agreement is also subject to any mandatory French-language, form, disclosure and distance-contract requirements applicable to the transaction. Nothing in this Section creates or expands any voluntary right, warranty, refund, remedy or other obligation beyond that required by mandatory applicable law.
8.1.4 BRAZIL: CONSUMER RIGHTS: Where you are a consumer protected by mandatory Brazilian consumer law, including Law No. 8,078/1990 (Código de Defesa do Consumidor), nothing in this Agreement excludes, restricts or modifies any right or remedy that cannot lawfully be excluded, restricted or modified, including any mandatory right of withdrawal, refund, remedy for defective or non-conforming products or services or, where applicable, restoration of consumer rights following cure of a payment default. The voluntary fourteen (14) day money-back guarantee in Paragraph III does not replace or limit any mandatory statutory withdrawal or refund right. Sections 2.3.5 and 6.3 through 6.5 and every disclaimer, exclusion, remedy limitation and limitation of liability in this Agreement apply only to the extent permitted by mandatory applicable Brazilian law. Nothing in this Section creates any additional voluntary warranty, refund, withdrawal, reinstatement or other right beyond that required by mandatory applicable law.
8.1.5 MEXICO: RECURRING PAYMENTS AND CONSUMER RIGHTS: Where mandatory Mexican consumer law applies, nothing in this Agreement excludes, restricts or modifies any non-excludable consumer right or requirement concerning electronic transactions, recurring charges, automatic renewal, cancellation, refunds or other mandatory consumer protection. Sections 6.1 through 6.5 and any other provision concerning Subscription Software, recurring payments, renewal or cancellation apply subject to those mandatory requirements. Nothing in this Section creates any additional contractual cancellation, refund, renewal or other right beyond that required by mandatory applicable law.
8.2 ASIA
8.2.1 INDIA: LIMITATION OF LIABILITY: FOR EACH SECTION 2.10, 5.1.4, 7.2.5, 7.3.3 AND 7.5.10 (ABOVE), THE FOLLOWING SECTION 8.2.1.1 AND SECTIONS 8.2.1.2, 8.2.1.3, 8.2.1.4 AND 8.2.1.5 REPLACE EACH SECTION IN ITS ENTIRETY AS SET FORTH BELOW:
8.2.1.1 LIMITATION OF LIABILITY: EXCEPT FOR THE REMEDIES EXPRESSLY PROVIDED IN SECTION 2.8.2, IN NO EVENT WILL FC AND ITS AUTHORISED PARTIES BE LIABLE TO YOU FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS WHATSOEVER INCLUDING ANY SPECIAL, CONSEQUENTIAL, INDIRECT 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 FC AND ITS AUTHORISED PARTIES AND/OR A REPRESENTATIVE OF FC HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS, EXCEPT WHERE LIABILITY FOR BODILY INJURY (INCLUDING DEATH) OR DAMAGE TO REAL PROPERTY AND TANGIBLE PERSONAL PROPERTY WILL BE LIMITED TO THAT CAUSED BY FC’S NEGLIGENCE. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. THE AGGREGATE LIABILITY OF FC, ITS AUTHORISED PARTIES AND ITS SUPPLIERS FOR ALL CLAIMS, CAUSES OF ACTION AND THEORIES OF LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, THE LICENSE OR THIS AGREEMENT, TAKEN TOGETHER AND NOT SEPARATELY PER CLAIM, EVENT OR CAUSE OF ACTION, SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS 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. FC IS ACTING ON BEHALF OF ITS AUTHORISED PARTIES AND ITS SUPPLIERS FOR THE PURPOSE OF DISCLAIMING, EXCLUDING AND LIMITING OBLIGATIONS, WARRANTIES AND LIABILITY WITH RESPECT TO THIS LICENSE ONLY AND FOR NO OTHER PURPOSE OR RESPECT. NOTHING IN THIS SECTION EXCLUDES OR LIMITS ANY LIABILITY THAT CANNOT LAWFULLY BE EXCLUDED, INCLUDING LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE.
8.2.1.2 For the purposes of section 5.1.4 which is replaced in its entirety by section 8.2.1.1 pursuant to section 8.2.1 (above), the following words from section 8.2.1.1: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM OR IN CONNECTION WITH TECHNICAL SUPPORT OBTAINED OR USED BY YOU”; and (ii) the following words: “ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, THE LICENSE OR THIS AGREEMENT, TAKEN TOGETHER AND NOT SEPARATELY PER CLAIM, EVENT OR CAUSE OF ACTION, SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF ANY.”, are entirely replaced with: “ARISING OUT OF OR IN CONNECTION WITH THE PROVISION OF TECHNICAL SUPPORT UNDER SECTION 5, TAKEN TOGETHER AND NOT SEPARATELY PER CLAIM, EVENT OR CAUSE OF ACTION, SHALL BE LIMITED TO THE AMOUNT PAID FOR THAT TECHNICAL SUPPORT, IF ANY.”; and,
8.2.1.3 For the purposes of section 7.2.5 which is replaced in its entirety by section 8.2.1.1 pursuant to section 8.2.1 (above), the following words from section 8.2.1.1: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM USE OF THE BETA SOFTWARE”; and (ii) the following words: “ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, THE LICENSE OR THIS AGREEMENT, TAKEN TOGETHER AND NOT SEPARATELY PER CLAIM, EVENT OR CAUSE OF ACTION, SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF ANY.”, are entirely replaced with: “ARISING OUT OF OR IN CONNECTION WITH THE BETA SOFTWARE UNDER SECTION 7.2, TAKEN TOGETHER AND NOT SEPARATELY PER CLAIM, EVENT OR CAUSE OF ACTION, SHALL BE LIMITED TO THE AMOUNT PAID FOR THE BETA SOFTWARE, IF ANY.”; and,
8.2.1.4 For the purposes of section 7.3.3 which is replaced in its entirety by section 8.2.1.1 pursuant to section 8.2.1 (above), the following words from section 8.2.1.1: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM USE OF THE DEMONSTRATION SOFTWARE”; and (ii) the following words: “ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, THE LICENSE OR THIS AGREEMENT, TAKEN TOGETHER AND NOT SEPARATELY PER CLAIM, EVENT OR CAUSE OF ACTION, SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF ANY.”, are entirely replaced with: “ARISING OUT OF OR IN CONNECTION WITH THE DEMONSTRATION SOFTWARE UNDER SECTION 7.3, TAKEN TOGETHER AND NOT SEPARATELY PER CLAIM, EVENT OR CAUSE OF ACTION, SHALL BE LIMITED TO THE AMOUNT PAID FOR THE DEMONSTRATION SOFTWARE, IF ANY.”; and,
8.2.1.5 For the purposes of section 7.5.10 which is replaced in its entirety by section 8.2.1.1 pursuant to section 8.2.1 (above), the following words from section 8.2.1.1: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM YOUR USE OF THE SDK OR FC EXTENSIONS OR DAMAGE ARISING FROM YOUR PARTICIPATION IN HOSTING OR USE OF THIRD PARTY PRODUCTS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY”; and (ii) the following words: “ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, THE LICENSE OR THIS AGREEMENT, TAKEN TOGETHER AND NOT SEPARATELY PER CLAIM, EVENT OR CAUSE OF ACTION, SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF ANY.”, are entirely replaced with: “ARISING OUT OF OR IN CONNECTION WITH THE SDK AND FC EXTENSIONS UNDER SECTION 7.5, TAKEN TOGETHER AND NOT SEPARATELY PER CLAIM, EVENT OR CAUSE OF ACTION, SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS SDK LICENSE, IF ANY.”;
8.2.1.6 INDIA: GENERAL PROVISIONS: For Section 3 (above): The following replaces section 3.6 in its entirety: LIMITATION TO BRING AN ACTION: You acknowledge and agree that neither will FC nor its Authorised Parties, nor will you, bring a legal action under this Agreement more than three (3) years after the cause of action arose unless otherwise provided by local law without the possibility of contractual waiver or limitation. This limitation does not apply to claims relating to Intellectual Property, confidentiality, fraud, unpaid fees or indemnities, to applications for injunctive or equitable relief, or to any claim for which the limitation period cannot lawfully be shortened.
8.2.2 JAPAN: GENERAL PROVISIONS: FOR SECTION 3 (ABOVE), THE FOLLOWING IS ADDED TO THE END OF THIS SECTION
8.2.2.1 NEGOTIATION: Any doubts concerning this Agreement will be initially resolved between us in good faith and in accordance with the principle of mutual trust.
8.2.2.2 JAPAN: CONSUMER CONTRACTS: Where you are a consumer for the purposes of the Consumer Contract Act of Japan or other mandatory applicable Japanese consumer law, any exclusion, disclaimer, limitation of liability, cancellation, termination, remedy limitation or other provision of this Agreement applies only to the extent permitted by that mandatory law. Nothing in this Agreement excludes, restricts or modifies any liability, cancellation right or other consumer right to the extent that such exclusion, restriction or modification is void or prohibited under mandatory applicable Japanese law. Nothing in this Section creates any additional voluntary warranty, refund, cancellation or other remedy beyond that required by mandatory applicable law.
8.2.3 MALAYSIA: LIMITATION OF LIABILITY: FOR EACH SECTION 2.10, 5.1.4, 7.2.5, 7.3.3 AND 7.5.10 (ABOVE), THE FOLLOWING SECTION 8.2.3.1 AND SECTIONS 8.2.3.2, 8.2.3.3, 8.2.3.4 AND 8.2.3.5 REPLACE EACH SECTION IN ITS ENTIRETY AS SET FORTH BELOW:
8.2.3.1 LIMITATION OF LIABILITY: EXCEPT FOR THE REMEDIES EXPRESSLY PROVIDED IN SECTION 2.8.2, IN NO EVENT WILL FC AND ITS AUTHORISED PARTIES BE LIABLE TO YOU FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS WHATSOEVER INCLUDING ANY CONSEQUENTIAL, INDIRECT 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 FC AND ITS AUTHORISED PARTIES AND/OR A REPRESENTATIVE OF FC HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. FC’S AGGREGATE LIABILITY AND THAT OF ITS AUTHORISED PARTIES AND ITS SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS 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. FC IS ACTING ON BEHALF OF ITS AUTHORISED PARTIES AND ITS SUPPLIERS FOR THE PURPOSE OF DISCLAIMING, EXCLUDING AND LIMITING OBLIGATIONS, WARRANTIES AND LIABILITY WITH RESPECT TO THIS LICENSE ONLY AND FOR NO OTHER PURPOSE OR RESPECT. NOTHING IN THIS SECTION EXCLUDES OR LIMITS ANY LIABILITY THAT CANNOT LAWFULLY BE EXCLUDED, INCLUDING LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE.
8.2.3.2 For the purposes of section 5.1.4 which is replaced in its entirety by section 8.2.3.1 pursuant to section 8.2.3 (above), the following words from section 8.2.3.1: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM OR IN CONNECTION WITH TECHNICAL SUPPORT OBTAINED OR USED BY YOU”; and (ii) the following words: “UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF ANY.”, are entirely replaced with: “ARISING OUT OF OR IN CONNECTION WITH THE PROVISION OF TECHNICAL SUPPORT UNDER SECTION 5 SHALL BE LIMITED TO THE AMOUNT PAID FOR THAT TECHNICAL SUPPORT, IF ANY.”; and,
8.2.3.3 For the purposes of section 7.2.5 which is replaced in its entirety by section 8.2.3.1 pursuant to section 8.2.3 (above), the following words from section 8.2.3.1: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM USE OF THE BETA SOFTWARE”; and (ii) the following words: “UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF ANY.”, are entirely replaced with: “ARISING OUT OF OR IN CONNECTION WITH THE BETA SOFTWARE UNDER SECTION 7.2 SHALL BE LIMITED TO THE AMOUNT PAID FOR THE BETA SOFTWARE, IF ANY.”; and,
8.2.3.4 For the purposes of section 7.3.3 which is replaced in its entirety by section 8.2.3.1 pursuant to section 8.2.3 (above), the following words from section 8.2.3.1: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM USE OF THE DEMONSTRATION SOFTWARE”; and (ii) the following words: “UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF ANY.”, are entirely replaced with: “ARISING OUT OF OR IN CONNECTION WITH THE DEMONSTRATION SOFTWARE UNDER SECTION 7.3 SHALL BE LIMITED TO THE AMOUNT PAID FOR THE DEMONSTRATION SOFTWARE, IF ANY.”; and,
8.2.3.5 For the purposes of section 7.5.10 which is replaced in its entirety by section 8.2.3.1 pursuant to section 8.2.3 (above), the following words from section 8.2.3.1: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM YOUR USE OF THE SDK OR FC EXTENSIONS OR DAMAGE ARISING FROM YOUR PARTICIPATION IN HOSTING OR USE OF THIRD PARTY PRODUCTS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY”; and (ii) the following words: “UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF ANY.”, are entirely replaced with: “ARISING OUT OF OR IN CONNECTION WITH THE SDK AND FC EXTENSIONS UNDER SECTION 7.5 SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS SDK LICENSE, IF ANY.”.
8.2.4 PEOPLE’S REPUBLIC OF CHINA: GENERAL PROVISIONS: FOR SECTION 3 ABOVE, THE FOLLOWING IS ADDED TO THE END OF THAT SECTION: FC PROCESSES YOUR PERSONAL INFORMATION, DIRECTLY OR THROUGH AUTHORISED SERVICE PROVIDERS ACTING ON ITS BEHALF, IN ACCORDANCE WITH THE PERSONAL INFORMATION PROTECTION LAW OF THE PEOPLE’S REPUBLIC OF CHINA (PIPL, 2021), THE DATA SECURITY LAW OF THE PEOPLE’S REPUBLIC OF CHINA (DSL, 2021), OTHER APPLICABLE LAW AND FC’S PRIVACY POLICY (SEE SECTION 9 BELOW). YOUR RIGHTS AS A CONSUMER UNDER THE LAW ON PROTECTION OF THE RIGHTS AND INTERESTS OF CONSUMERS (2013) AND THE E-COMMERCE LAW OF THE PEOPLE’S REPUBLIC OF CHINA (2018) ARE NOT AFFECTED BY THIS AGREEMENT. THE PERSONAL INFORMATION HANDLER IS FC. FC MAY ENTRUST AUTHORISED SERVICE PROVIDERS TO PROCESS PERSONAL INFORMATION ON ITS BEHALF, SUBJECT TO APPLICABLE LAW AND FC’S APPLICABLE PRIVACY POLICY. THE USE OF AN AUTHORISED SERVICE PROVIDER DOES NOT CHANGE FC’S STATUS AS THE PERSONAL INFORMATION HANDLER EXCEPT TO THE EXTENT THAT MANDATORY APPLICABLE LAW REQUIRES OTHERWISE.
8.2.4.1 BANK CHARGES: All banking charges incurred in the PRC will be borne by you and those incurred outside the PRC will be as set out in the payment terms disclosed at purchase.
8.2.5 PHILIPPINES: LIMITATION OF LIABILITY: FOR EACH SECTION 2.10, 5.1.4, 7.2.5, 7.3.3 AND 7.5.10 (ABOVE), THE FOLLOWING SECTION 8.2.5.1 AND SECTIONS 8.2.5.2, 8.2.5.3, 8.2.5.4 AND 8.2.5.5 REPLACE EACH SECTION IN ITS ENTIRETY AS SET FORTH BELOW:
8.2.5.1 LIMITATION OF LIABILITY: EXCEPT FOR THE REMEDIES EXPRESSLY PROVIDED IN SECTION 2.8.2, IN NO EVENT WILL FC AND ITS AUTHORISED PARTIES BE LIABLE TO YOU FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS WHATSOEVER INCLUDING ANY SPECIAL (INCLUDING NOMINAL AND EXEMPLARY DAMAGES), MORAL, INCIDENTAL, OR INDIRECT DAMAGES OR FOR ANY ECONOMIC CONSEQUENTIAL 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 FC AND ITS AUTHORISED PARTIES AND/OR A REPRESENTATIVE OF FC HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. FC’S AGGREGATE LIABILITY AND THAT OF ITS AUTHORISED PARTIES AND ITS SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS 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. FC IS ACTING ON BEHALF OF ITS AUTHORISED PARTIES AND ITS SUPPLIERS FOR THE PURPOSE OF DISCLAIMING, EXCLUDING AND LIMITING OBLIGATIONS, WARRANTIES AND LIABILITY WITH RESPECT TO THIS LICENSE ONLY AND FOR NO OTHER PURPOSE OR RESPECT. NOTHING IN THIS SECTION EXCLUDES OR LIMITS ANY LIABILITY THAT CANNOT LAWFULLY BE EXCLUDED, INCLUDING LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE.
8.2.5.2 For the purposes of section 5.1.4 which is replaced in its entirety by section 8.2.5.1 pursuant to section 8.2.5 (above), the following words from section 8.2.5.1: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM OR IN CONNECTION WITH TECHNICAL SUPPORT OBTAINED OR USED BY YOU”; and (ii) the following words: “UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF ANY.”, are entirely replaced with: “ARISING OUT OF OR IN CONNECTION WITH THE PROVISION OF TECHNICAL SUPPORT UNDER SECTION 5 SHALL BE LIMITED TO THE AMOUNT PAID FOR THAT TECHNICAL SUPPORT, IF ANY.”; and,
8.2.5.3 For the purposes of section 7.2.5 which is replaced in its entirety by section 8.2.5.1 pursuant to section 8.2.5 (above), the following words from section 8.2.5.1: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM USE OF THE BETA SOFTWARE”; and (ii) the following words: “UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF ANY.”, are entirely replaced with: “ARISING OUT OF OR IN CONNECTION WITH THE BETA SOFTWARE UNDER SECTION 7.2 SHALL BE LIMITED TO THE AMOUNT PAID FOR THE BETA SOFTWARE, IF ANY.”; and,
8.2.5.4 For the purposes of section 7.3.3 which is replaced in its entirety by section 8.2.5.1 pursuant to section 8.2.5 (above), the following words from section 8.2.5.1: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM USE OF THE DEMONSTRATION SOFTWARE”; and (ii) the following words: “UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF ANY.”, are entirely replaced with: “ARISING OUT OF OR IN CONNECTION WITH THE DEMONSTRATION SOFTWARE UNDER SECTION 7.3 SHALL BE LIMITED TO THE AMOUNT PAID FOR THE DEMONSTRATION SOFTWARE, IF ANY.”; and,
8.2.5.5 For the purposes of section 7.5.10 which is replaced in its entirety by section 8.2.5.1 pursuant to section 8.2.5 (above), the following words from section 8.2.5.1: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM YOUR USE OF THE SDK OR FC EXTENSIONS OR DAMAGE ARISING FROM YOUR PARTICIPATION IN HOSTING OR USE OF THIRD PARTY PRODUCTS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY”; and (ii) the following words: “UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF ANY.”, are entirely replaced with: “ARISING OUT OF OR IN CONNECTION WITH THE SDK AND FC EXTENSIONS UNDER SECTION 7.5 SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS SDK LICENSE, IF ANY.”.
8.2.6 SINGAPORE: LIMITATION OF LIABILITY: FOR EACH SECTION 2.10, 5.1.4, 7.2.5, 7.3.3 AND 7.5.10 (ABOVE), THE FOLLOWING SECTION 8.2.6.1 AND SECTIONS 8.2.6.3, 8.2.6.4, 8.2.6.5 AND 8.2.6.6 REPLACE EACH SECTION IN ITS ENTIRETY AS SET FORTH BELOW:
8.2.6.1 LIMITATION OF LIABILITY: EXCEPT FOR THE REMEDIES EXPRESSLY PROVIDED IN SECTION 2.8.2, IN NO EVENT WILL FC AND ITS AUTHORISED PARTIES BE LIABLE TO YOU FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS WHATSOEVER INCLUDING ANY CONSEQUENTIAL, INDIRECT 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 FC AND ITS AUTHORISED PARTIES AND/OR A REPRESENTATIVE OF FC HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. FC’S AGGREGATE LIABILITY AND THAT OF ITS AUTHORISED PARTIES AND ITS SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS 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. FC IS ACTING ON BEHALF OF ITS AUTHORISED PARTIES AND ITS SUPPLIERS FOR THE PURPOSE OF DISCLAIMING, EXCLUDING AND LIMITING OBLIGATIONS, WARRANTIES AND LIABILITY WITH RESPECT TO THIS LICENSE ONLY AND FOR NO OTHER PURPOSE OR RESPECT. NOTHING IN THIS SECTION EXCLUDES OR LIMITS ANY LIABILITY THAT CANNOT LAWFULLY BE EXCLUDED, INCLUDING LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE.
8.2.6.2 SUBJECT TO THE RIGHTS PROVIDED TO FC’S SUPPLIERS AS PROVIDED IN SECTION 8.2.6.1 (ABOVE) (LIMITATION OF LIABILITY) AND TO THE RIGHTS OF EACH PROTECTED PERSON UNDER SECTION 3.8, WHICH ARE EXPRESSLY PRESERVED AND MAY BE RELIED ON AND ENFORCED BY EACH PROTECTED PERSON, IN EACH CASE ONLY TO THE EXTENT OF THE UNDERLYING PROVISION AND AS PERMITTED BY APPLICABLE LAW AND WITHOUT CONFERRING ANY POWER RESERVED TO FC AS LICENSOR, A PERSON WHO IS NOT A PARTY TO THIS AGREEMENT SHALL HAVE NO RIGHT UNDER THE CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 2001 TO ENFORCE ANY OF ITS TERMS.
8.2.6.3 For the purposes of section 5.1.4 which is replaced in its entirety by section 8.2.6.1 pursuant to section 8.2.6 (above), the following words from section 8.2.6.1: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM OR IN CONNECTION WITH TECHNICAL SUPPORT OBTAINED OR USED BY YOU”; and (ii) the following words: “UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF ANY.”, are entirely replaced with: “ARISING OUT OF OR IN CONNECTION WITH THE PROVISION OF TECHNICAL SUPPORT UNDER SECTION 5 SHALL BE LIMITED TO THE AMOUNT PAID FOR THAT TECHNICAL SUPPORT, IF ANY.”; and,
8.2.6.4 For the purposes of section 7.2.5 which is replaced in its entirety by section 8.2.6.1 pursuant to section 8.2.6 (above), the following words from section 8.2.6.1: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM USE OF THE BETA SOFTWARE”; and (ii) the following words: “UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF ANY.”, are entirely replaced with: “ARISING OUT OF OR IN CONNECTION WITH THE BETA SOFTWARE UNDER SECTION 7.2 SHALL BE LIMITED TO THE AMOUNT PAID FOR THE BETA SOFTWARE, IF ANY.”; and,
8.2.6.5 For the purposes of section 7.3.3 which is replaced in its entirety by section 8.2.6.1 pursuant to section 8.2.6 (above), the following words from section 8.2.6.1: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM USE OF THE DEMONSTRATION SOFTWARE”; and (ii) the following words: “UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF ANY.”, are entirely replaced with: “ARISING OUT OF OR IN CONNECTION WITH THE DEMONSTRATION SOFTWARE UNDER SECTION 7.3 SHALL BE LIMITED TO THE AMOUNT PAID FOR THE DEMONSTRATION SOFTWARE, IF ANY.”; and,
8.2.6.6 For the purposes of section 7.5.10 which is replaced in its entirety by section 8.2.6.1 pursuant to section 8.2.6 (above), the following words from section 8.2.6.1: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM YOUR USE OF THE SDK OR FC EXTENSIONS OR DAMAGE ARISING FROM YOUR PARTICIPATION IN HOSTING OR USE OF THIRD PARTY PRODUCTS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY”; and (ii) the following words: “UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF ANY.”, are entirely replaced with: “ARISING OUT OF OR IN CONNECTION WITH THE SDK AND FC EXTENSIONS UNDER SECTION 7.5 SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS SDK LICENSE, IF ANY.”.
8.2.7 TAIWAN: LIMITED WARRANTY: SECTIONS 2.8 THROUGH 2.8.5 (ABOVE) ARE DELETED. YOUR STATUTORY RIGHTS UNDER APPLICABLE LAW, INCLUDING WITHOUT LIMITATION THE CONSUMER PROTECTION ACT 1994 (TAIWAN) AND THE CIVIL CODE OF THE REPUBLIC OF CHINA, ARE NOT AFFECTED BY THE DELETION OF THOSE SECTIONS, AND NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS ANY LIABILITY OF FC THAT CANNOT LAWFULLY BE EXCLUDED OR LIMITED UNDER APPLICABLE TAIWANESE LAW. WHERE SECTIONS 2.8 THROUGH 2.8.5 ARE DELETED, REFERENCES IN SECTION 2.9 TO THE FOREGOING LIMITED WARRANTY ARE TO BE DISREGARDED, AND SECTION 2.9 OTHERWISE CONTINUES TO APPLY AS A DISCLAIMER OF ALL OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS AND TERMS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8.2.8 REPUBLIC OF KOREA (SOUTH KOREA): CONSUMER AND ELECTRONIC-COMMERCE RIGHTS: Where the Act on the Consumer Protection in Electronic Commerce, Etc. or other mandatory applicable Korean consumer law applies, nothing in this Agreement excludes, restricts or modifies any non-excludable right concerning pre-contract information, withdrawal or cancellation, refund, digital content, recurring payments, defective or non-conforming supply or another mandatory consumer remedy. Paragraph III, Sections 2.8 through 2.10 and Section 6, together with any applicable provision in Part II, apply subject to those mandatory rights. Nothing in this Section creates any additional contractual withdrawal, refund, cancellation or other right beyond that required by mandatory applicable Korean law.
8.3 EUROPE / EEA / SELECT EUROPEAN JURISDICTIONS
8.3.1 EUROPEAN CONSUMERS (NATURAL PERSONS): IF YOU ARE AN INDIVIDUAL CONSUMER IN THE EUROPEAN ECONOMIC AREA, NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS ANY NON-EXCLUDABLE RIGHT YOU HAVE UNDER THE NATIONAL LAW IMPLEMENTING DIRECTIVE (EU) 2019/770 ON DIGITAL CONTENT AND DIGITAL SERVICES IN RESPECT OF A VERIFIED FAILURE OF THE SOFTWARE TO CONFORM WITH THE CONTRACT, WHERE THE NON-CONFORMITY WAS NOT CAUSED BY YOUR ACTS OR OMISSIONS, MISUSE, UNAUTHORISED MODIFICATION, THIRD-PARTY SOFTWARE OR HARDWARE, MALWARE, OR FAILURE TO INSTALL OR USE THE SOFTWARE IN ACCORDANCE WITH ITS DOCUMENTATION OR ON A SUPPORTED CONFIGURATION, TO THE EXTENT SUCH EXCLUSIONS ARE PERMITTED BY APPLICABLE LAW. WHERE SUCH A NON-CONFORMITY EXISTS AND THE MANDATORY CONDITIONS OF THAT LAW ARE MET: (I) YOU ARE ENTITLED TO HAVE THE SOFTWARE BROUGHT INTO CONFORMITY BY THE TRADER RESPONSIBLE TO YOU UNDER THE APPLICABLE NATIONAL LAW, EXCEPT WHERE THAT LAW PERMITS AN IMMEDIATE PRICE REDUCTION OR TERMINATION OR WHERE BRINGING THE SOFTWARE INTO CONFORMITY IS IMPOSSIBLE OR DISPROPORTIONATE; AND (II) YOU ARE ENTITLED TO A PROPORTIONATE REDUCTION IN PRICE, OR TO TERMINATION OF THE RELEVANT CONTRACT AND A CORRESPONDING REFUND, ONLY WHERE AND TO THE EXTENT THE APPLICABLE NATIONAL LAW PERMITS OR REQUIRES THAT REMEDY. FOR THE PURPOSES OF THIS SECTION, THE TRADER RESPONSIBLE TO YOU IS DETERMINED BY THE ACTUAL TRANSACTION AND APPLICABLE LAW AND MAY BE FC OR THE AUTHORISED SELLER OR AUTHORISED CHANNEL PARTICIPANT THAT CONTRACTED WITH YOU. A PERSON DOES NOT BECOME THE TRADER MERELY BECAUSE IT IS THE LICENSOR, A SOFTWARE RIGHTS OWNER, A PLATFORM OPERATOR OR A SERVICE PROVIDER. THIS SECTION PRESERVES MANDATORY STATUTORY RIGHTS ONLY AND DOES NOT CREATE ANY CONTRACTUAL WARRANTY, REMEDY OR REFUND RIGHT BEYOND MANDATORY APPLICABLE LAW. A CLAIM UNDER SUCH MANDATORY CONSUMER LAW MAY BE DIRECTED TO THE TRADER OR OTHER PERSON RESPONSIBLE UNDER APPLICABLE NATIONAL LAW. WHERE FC IS THAT PERSON, FC’S CONTACT DETAILS AND APPLICABLE CLAIM CHANNEL ARE SET OUT IN SECTION 9.3, AND A CLAIM MAY BE MADE TO FC OR, WHERE THE SOFTWARE WAS OBTAINED THROUGH THE OEM CHANNEL, THROUGH FC OR THE AUTHORISED OEM MANUFACTURING PARTNER OR DEALER IDENTIFIED UNDER SECTION 7.6.3, TO THE EXTENT THAT PERSON IS RESPONSIBLE UNDER APPLICABLE LAW. WHERE AN AUTHORISED SELLER OR AUTHORISED CHANNEL PARTICIPANT IS THE TRADER OR OTHER PERSON RESPONSIBLE UNDER APPLICABLE NATIONAL LAW, THE CLAIM MAY BE DIRECTED TO THAT PERSON TO THE EXTENT REQUIRED OR PERMITTED BY THAT LAW. USE OF A THIRD-PARTY SERVICE PLATFORM TO RECEIVE OR ADMINISTER A CLAIM DOES NOT MAKE THE PLATFORM OPERATOR THE LICENSOR, SELLER, TRADER, WARRANTOR OR CONTRACTUAL REMEDY PROVIDER. FOR A CONTRACT INVOLVING CONTINUOUS SUPPLY OF SUBSCRIPTION SOFTWARE, THE TRADER RESPONSIBLE UNDER APPLICABLE NATIONAL LAW IS RESPONSIBLE FOR ANY NON-CONFORMITY OCCURRING OR BECOMING APPARENT DURING THE PERIOD IN WHICH THE SOFTWARE IS REQUIRED TO BE SUPPLIED, TO THE EXTENT REQUIRED BY THE NATIONAL LAW IMPLEMENTING DIRECTIVE (EU) 2019/770.
8.3.2 NO MODIFICATIONS: NOTHING INCLUDED IN THIS AGREEMENT, INCLUDING SECTION 2.7.2 ABOVE, SHALL LIMIT ANY NON-WAIVABLE RIGHT UNDER APPLICABLE LAW TO REPRODUCE, TRANSLATE, DECOMPILE OR OTHERWISE EXAMINE THE SOFTWARE, INCLUDING, WHERE THE CONDITIONS OF THAT LAW ARE MET, TO ACHIEVE INTEROPERABILITY OF AN INDEPENDENTLY CREATED COMPUTER PROGRAM OR TO CORRECT ERRORS. ANY SUCH ACT MAY BE UNDERTAKEN ONLY TO THE EXTENT AND SUBJECT TO THE CONDITIONS PERMITTED BY MANDATORY APPLICABLE LAW. WHERE THE RELEVANT RIGHT APPLIES ONLY IF THE INFORMATION NECESSARY FOR THE PERMITTED PURPOSE HAS NOT PREVIOUSLY BEEN MADE READILY AVAILABLE, YOU MAY REQUEST THAT INFORMATION FROM FC THROUGH ITS DESIGNATED LEGAL OR SUPPORT CHANNEL; MAKING SUCH A REQUEST IS NOT AN ADDITIONAL CONDITION PRECEDENT TO THE EXERCISE OF A NON-WAIVABLE STATUTORY RIGHT UNLESS MANDATORY APPLICABLE LAW ITSELF REQUIRES THAT CONDITION. FC MAY DIRECT THE REQUEST TO THE RELEVANT LAWFUL RIGHTS OWNER. NEITHER FC NOR ANY RIGHTS OWNER IS REQUIRED TO DISCLOSE SOURCE CODE, TRADE SECRETS OR OTHER CONFIDENTIAL INFORMATION EXCEPT TO THE EXTENT MANDATORY APPLICABLE LAW REQUIRES. ANY PERMITTED DECOMPILATION MAY BE PERFORMED ONLY BY YOU, ANOTHER PERSON ENTITLED TO USE A COPY OF THE SOFTWARE, OR A PERSON AUTHORISED TO ACT ON BEHALF OF EITHER, AND ONLY TO THE EXTENT NECESSARY FOR THE PERMITTED PURPOSE. ANY INFORMATION SUPPLIED OR LAWFULLY OBTAINED MAY BE USED ONLY FOR THAT PURPOSE, MAY NOT BE DISCLOSED EXCEPT TO THE EXTENT NECESSARY OR REQUIRED BY LAW, MAY NOT BE USED TO DEVELOP, PRODUCE OR MARKET SOFTWARE SUBSTANTIALLY SIMILAR IN EXPRESSION TO THE SOFTWARE, AND MAY NOT BE USED FOR ANY ACT THAT INFRINGES THE INTELLECTUAL PROPERTY OR OTHER RIGHTS OF FC OR ITS SUPPLIERS. NOTHING IN THIS SECTION MAKES FC THE OWNER OR CONTROLLER OF INTELLECTUAL PROPERTY IT DOES NOT OWN.
8.3.3 LIMITED WARRANTY: FOR SECTION 2.8 THROUGH 2.8.5 INCLUSIVE (ABOVE): THE FOLLOWING IS ADDED TO THE END OF THIS SECTION:
8.3.3.1 CONSUMER RIGHTS: IN THE EUROPEAN UNION, CONSUMERS HAVE LEGAL RIGHTS UNDER APPLICABLE NATIONAL LEGISLATION GOVERNING DIGITAL CONTENT, DIGITAL SERVICES AND CONSUMER GOODS, AS APPLICABLE. SUCH RIGHTS ARE NOT AFFECTED BY THE LIMITED WARRANTY PROVISION SET OUT AT SECTION 2.8 THROUGH 2.8.5 (ABOVE) INCLUSIVE OF THIS AGREEMENT.
8.3.4 AUSTRIA, DENMARK, FINLAND, GREECE, ITALY, NETHERLANDS, NORWAY, PORTUGAL, SPAIN, SWEDEN, AND SWITZERLAND: LIMITATION OF LIABILITY: FOR EACH SECTION 2.10, 5.1.4, 7.2.5, 7.3.3 AND 7.5.10 (ABOVE), THE FOLLOWING SECTIONS 8.3.4.1, 8.3.4.2 AND 8.3.4.3, AS APPLIED SUBJECT TO SECTIONS 8.3.4.4, 8.3.4.5, 8.3.4.6 AND 8.3.4.7 (BELOW), COLLECTIVELY REPLACE THESE SECTIONS IN THEIR ENTIRETY, AS A SINGLE SELF-CONTAINED REGIME, AS SET FORTH BELOW:
8.3.4.1 EXCEPT AS OTHERWISE PROVIDED BY MANDATORY LAW: FC’S LIABILITY FOR ANY DAMAGES AND LOSSES THAT MAY ARISE AS A CONSEQUENCE OF THE FULFILMENT OF ITS OBLIGATIONS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR DUE TO ANY OTHER CAUSE RELATED TO THIS AGREEMENT IS LIMITED TO THE COMPENSATION OF ONLY THOSE DAMAGES AND LOSSES PROVED AND ACTUALLY ARISING AS AN IMMEDIATE AND DIRECT CONSEQUENCE OF THE NON-FULFILMENT OF SUCH OBLIGATIONS (IF FC IS AT FAULT) OR OF SUCH CAUSE, FOR A MAXIMUM AMOUNT EQUAL TO THE CHARGES YOU PAID FOR THE SOFTWARE LICENSE.
THE ABOVE LIMITATION SHALL NOT APPLY TO DAMAGES FOR BODILY INJURIES (INCLUDING DEATH) AND DAMAGES TO REAL PROPERTY AND TANGIBLE PERSONAL PROPERTY FOR WHICH FC IS LEGALLY LIABLE.
8.3.4.2 UNDER NO CIRCUMSTANCES ARE FC AND ITS AUTHORISED PARTIES LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY: (I) LOSS OF, OR DAMAGE TO, DATA; (II) INCIDENTAL OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; (III) LOST PROFITS, EVEN IF THEY ARISE AS AN IMMEDIATE CONSEQUENCE OF THE EVENT THAT GENERATED THE DAMAGES; OR (IV) LOSS OF BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
8.3.4.3 THE LIMITATION AND EXCLUSION OF LIABILITY HEREIN AGREED APPLIES NOT ONLY TO THE ACTIVITIES PERFORMED BY FC BUT ALSO TO THE ACTIVITIES PERFORMED BY ITS AUTHORISED PARTIES AND ITS SUPPLIERS AND REPRESENTS THE MAXIMUM AMOUNT FOR WHICH FC, ITS AUTHORISED PARTIES AND ITS SUPPLIERS ARE COLLECTIVELY RESPONSIBLE.
8.3.4.4 For the purposes of section 5.1.4 which is replaced in its entirety by sections 8.3.4.1, 8.3.4.2 and 8.3.4.3 pursuant to section 8.3.4 (above), the following words from section 8.3.4.1: (i) “UNDER OR IN CONNECTION WITH THIS AGREEMENT OR DUE TO ANY OTHER CAUSE RELATED TO THIS AGREEMENT”, are entirely replaced with: “ARISING OUT OF OR IN CONNECTION WITH THE PROVISION OF TECHNICAL SUPPORT UNDER SECTION 5”; and (ii) the following words: “FOR A MAXIMUM AMOUNT EQUAL TO THE CHARGES YOU PAID FOR THE SOFTWARE LICENSE.”, are entirely replaced with: “FOR A MAXIMUM AMOUNT EQUAL TO THE AMOUNT PAID FOR THAT TECHNICAL SUPPORT, IF ANY.”; and,
8.3.4.5 For the purposes of section 7.2.5 which is replaced in its entirety by sections 8.3.4.1, 8.3.4.2 and 8.3.4.3 pursuant to section 8.3.4 (above), the following words from section 8.3.4.1: (i) “UNDER OR IN CONNECTION WITH THIS AGREEMENT OR DUE TO ANY OTHER CAUSE RELATED TO THIS AGREEMENT”, are entirely replaced with: “ARISING OUT OF OR IN CONNECTION WITH THE BETA SOFTWARE UNDER SECTION 7.2”; and (ii) the following words: “FOR A MAXIMUM AMOUNT EQUAL TO THE CHARGES YOU PAID FOR THE SOFTWARE LICENSE.”, are entirely replaced with: “FOR A MAXIMUM AMOUNT EQUAL TO THE AMOUNT PAID FOR THE BETA SOFTWARE, IF ANY.”; and,
8.3.4.6 For the purposes of section 7.3.3 which is replaced in its entirety by sections 8.3.4.1, 8.3.4.2 and 8.3.4.3 pursuant to section 8.3.4 (above), the following words from section 8.3.4.1: (i) “UNDER OR IN CONNECTION WITH THIS AGREEMENT OR DUE TO ANY OTHER CAUSE RELATED TO THIS AGREEMENT”, are entirely replaced with: “ARISING OUT OF OR IN CONNECTION WITH THE DEMONSTRATION SOFTWARE UNDER SECTION 7.3”; and (ii) the following words: “FOR A MAXIMUM AMOUNT EQUAL TO THE CHARGES YOU PAID FOR THE SOFTWARE LICENSE.”, are entirely replaced with: “FOR A MAXIMUM AMOUNT EQUAL TO THE AMOUNT PAID FOR THE DEMONSTRATION SOFTWARE, IF ANY.”; and,
8.3.4.7 For the purposes of section 7.5.10 which is replaced in its entirety by sections 8.3.4.1, 8.3.4.2 and 8.3.4.3 pursuant to section 8.3.4 (above), the following words from section 8.3.4.1: (i) “UNDER OR IN CONNECTION WITH THIS AGREEMENT OR DUE TO ANY OTHER CAUSE RELATED TO THIS AGREEMENT”, are entirely replaced with: “ARISING OUT OF OR IN CONNECTION WITH THE SDK AND FC EXTENSIONS UNDER SECTION 7.5”; and (ii) the following words: “FOR A MAXIMUM AMOUNT EQUAL TO THE CHARGES YOU PAID FOR THE SOFTWARE LICENSE.”, are entirely replaced with: “FOR A MAXIMUM AMOUNT EQUAL TO THE AMOUNT PAID FOR THE SDK LICENSE, IF ANY.”.
8.3.5 FRANCE AND BELGIUM: LIMITATION OF LIABILITY: FOR EACH SECTION 2.10, 5.1.4, 7.2.5, 7.3.3 AND 7.5.10 (ABOVE), THE FOLLOWING SECTIONS 8.3.5.1, 8.3.5.2 AND 8.3.5.3, AS APPLIED SUBJECT TO SECTIONS 8.3.5.4, 8.3.5.5, 8.3.5.6 AND 8.3.5.7 (BELOW), COLLECTIVELY REPLACE THESE SECTIONS IN THEIR ENTIRETY, AS A SINGLE SELF-CONTAINED REGIME, AS SET FORTH BELOW:
8.3.5.1 EXCEPT AS OTHERWISE PROVIDED BY MANDATORY LAW: FC’S LIABILITY FOR ANY DAMAGES AND LOSSES THAT MAY ARISE AS A CONSEQUENCE OF THE FULFILMENT OF ITS OBLIGATIONS UNDER OR IN CONNECTION WITH THIS AGREEMENT IS LIMITED TO THE COMPENSATION OF ONLY THOSE DAMAGES AND LOSSES PROVED AND ACTUALLY ARISING AS AN IMMEDIATE AND DIRECT CONSEQUENCE OF THE NON-FULFILMENT OF SUCH OBLIGATIONS (IF FC IS AT FAULT), FOR A MAXIMUM AMOUNT EQUAL TO THE CHARGES YOU PAID FOR THE SOFTWARE LICENSE THAT HAS CAUSED THE DAMAGES.
THE ABOVE LIMITATION SHALL NOT APPLY TO DAMAGES FOR BODILY INJURIES (INCLUDING DEATH) AND DAMAGES TO REAL PROPERTY AND TANGIBLE PERSONAL PROPERTY FOR WHICH FC IS LEGALLY LIABLE.
8.3.5.2 UNDER NO CIRCUMSTANCES ARE FC AND ITS AUTHORISED PARTIES LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY: (I) LOSS OF, OR DAMAGE TO, DATA; (II) INCIDENTAL OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; (III) LOST PROFITS, EVEN IF THEY ARISE AS AN IMMEDIATE CONSEQUENCE OF THE EVENT THAT GENERATED THE DAMAGES; OR (IV) LOSS OF BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
8.3.5.3 THE LIMITATION AND EXCLUSION OF LIABILITY HEREIN AGREED APPLIES NOT ONLY TO THE ACTIVITIES PERFORMED BY FC BUT ALSO TO THE ACTIVITIES PERFORMED BY ITS AUTHORISED PARTIES AND ITS SUPPLIERS AND REPRESENTS THE MAXIMUM AMOUNT FOR WHICH FC, ITS AUTHORISED PARTIES AND ITS SUPPLIERS ARE COLLECTIVELY RESPONSIBLE.
8.3.5.4 For the purposes of section 5.1.4 which is replaced in its entirety by sections 8.3.5.1, 8.3.5.2 and 8.3.5.3 pursuant to section 8.3.5 (above), the following words from section 8.3.5.1: (i) “UNDER OR IN CONNECTION WITH THIS AGREEMENT”, are entirely replaced with: “ARISING OUT OF OR IN CONNECTION WITH THE PROVISION OF TECHNICAL SUPPORT UNDER SECTION 5”; and (ii) the following words: “FOR A MAXIMUM AMOUNT EQUAL TO THE CHARGES YOU PAID FOR THE SOFTWARE LICENSE THAT HAS CAUSED THE DAMAGES.”, are entirely replaced with: “FOR A MAXIMUM AMOUNT EQUAL TO THE AMOUNT PAID FOR THAT TECHNICAL SUPPORT, IF ANY.”; and,
8.3.5.5 For the purposes of section 7.2.5 which is replaced in its entirety by sections 8.3.5.1, 8.3.5.2 and 8.3.5.3 pursuant to section 8.3.5 (above), the following words from section 8.3.5.1: (i) “UNDER OR IN CONNECTION WITH THIS AGREEMENT”, are entirely replaced with: “ARISING OUT OF OR IN CONNECTION WITH THE BETA SOFTWARE UNDER SECTION 7.2”; and (ii) the following words: “FOR A MAXIMUM AMOUNT EQUAL TO THE CHARGES YOU PAID FOR THE SOFTWARE LICENSE THAT HAS CAUSED THE DAMAGES.”, are entirely replaced with: “FOR A MAXIMUM AMOUNT EQUAL TO THE AMOUNT PAID FOR THE BETA SOFTWARE, IF ANY.”; and,
8.3.5.6 For the purposes of section 7.3.3 which is replaced in its entirety by sections 8.3.5.1, 8.3.5.2 and 8.3.5.3 pursuant to section 8.3.5 (above), the following words from section 8.3.5.1: (i) “UNDER OR IN CONNECTION WITH THIS AGREEMENT”, are entirely replaced with: “ARISING OUT OF OR IN CONNECTION WITH THE DEMONSTRATION SOFTWARE UNDER SECTION 7.3”; and (ii) the following words: “FOR A MAXIMUM AMOUNT EQUAL TO THE CHARGES YOU PAID FOR THE SOFTWARE LICENSE THAT HAS CAUSED THE DAMAGES.”, are entirely replaced with: “FOR A MAXIMUM AMOUNT EQUAL TO THE AMOUNT PAID FOR THE DEMONSTRATION SOFTWARE, IF ANY.”; and,
8.3.5.7 For the purposes of section 7.5.10 which is replaced in its entirety by sections 8.3.5.1, 8.3.5.2 and 8.3.5.3 pursuant to section 8.3.5 (above), the following words from section 8.3.5.1: (i) “UNDER OR IN CONNECTION WITH THIS AGREEMENT”, are entirely replaced with: “ARISING OUT OF OR IN CONNECTION WITH THE SDK AND FC EXTENSIONS UNDER SECTION 7.5”; and (ii) the following words: “FOR A MAXIMUM AMOUNT EQUAL TO THE CHARGES YOU PAID FOR THE SOFTWARE LICENSE THAT HAS CAUSED THE DAMAGES.”, are entirely replaced with: “FOR A MAXIMUM AMOUNT EQUAL TO THE AMOUNT PAID FOR THE SDK LICENSE, IF ANY.”.
8.3.6 AUSTRIA: LIMITED WARRANTY AND STATUTORY RIGHTS: SECTIONS 2.8, 2.8.1, 2.8.2, 2.8.3.1, 2.8.4, 2.8.5, 5.1.3, 7.2.4, 7.3.2 AND 7.5.9 (ABOVE) CONTINUE TO APPLY, AS SUPPLEMENTED BY THE FOLLOWING SECTIONS 8.3.6.1, 8.3.6.2, 8.3.6.3 AND 8.3.6.4:
8.3.6.1 STATUTORY RIGHTS SAVINGS: NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS ANY NON-EXCLUDABLE RIGHT YOU HAVE AS A CONSUMER UNDER MANDATORY APPLICABLE AUSTRIAN LAW, INCLUDING THE LAW IMPLEMENTING DIRECTIVE (EU) 2019/770, IN RESPECT OF DIGITAL CONTENT OR DIGITAL SERVICES. THOSE STATUTORY RIGHTS APPLY ONLY TO PERSONS WHO QUALIFY AS CONSUMERS UNDER MANDATORY APPLICABLE LAW AND ARE NOT CONFERRED ON BUSINESS USERS OR LEGAL ENTITIES UNLESS MANDATORY LAW EXPRESSLY REQUIRES.
8.3.6.2 NO ADDITIONAL WARRANTY: THE VOLUNTARY LIMITED WARRANTY IN SECTION 2.8, SUBJECT TO SECTIONS 2.8.1, 2.8.1.1, 2.8.2, 2.8.3.1, 2.8.4 AND 2.8.5, IS THE ONLY COMMERCIAL GUARANTEE GIVEN BY FC. NO ADDITIONAL COMMERCIAL GUARANTEE, WARRANTY OR REMEDY IS GIVEN OR IMPLIED BY THIS SECTION.
8.3.6.3 EXCLUSIONS AND SOLE OBLIGATIONS: TO THE MAXIMUM EXTENT PERMITTED BY MANDATORY APPLICABLE AUSTRIAN LAW, ALL OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS, REMEDIES AND LIABILITIES ARE EXCLUDED OR LIMITED AS SET OUT IN THIS AGREEMENT, AND THE REMEDIES UNDER SECTION 2.8.2, TOGETHER WITH ANY NON-EXCLUDABLE STATUTORY RIGHTS, ARE YOUR ONLY REMEDIES, APPLY WITHOUT DUPLICATION OR DOUBLE RECOVERY, AND CONSTITUTE OUR SOLE OBLIGATIONS TO YOU.
8.3.6.4 CLAIMS: CLAIMS UNDER THE VOLUNTARY LIMITED WARRANTY IN SECTION 2.8 MUST BE MADE IN ACCORDANCE WITH SECTION 2.8.4; CLAIMS UNDER NON-EXCLUDABLE STATUTORY RIGHTS MAY BE MADE AS PROVIDED BY APPLICABLE LAW. FC’S CONTACT DETAILS AND VOLUNTARY WARRANTY CLAIM CHANNEL ARE SET OUT IN SECTION 9.3.
8.3.7 GERMANY: LIMITED WARRANTY AND STATUTORY RIGHTS: SECTIONS 2.8, 2.8.1, 2.8.2, 2.8.3.1, 2.8.4, 2.8.5, 5.1.3, 7.2.4, 7.3.2 AND 7.5.9 (ABOVE) CONTINUE TO APPLY, AS SUPPLEMENTED BY THE FOLLOWING SECTIONS 8.3.7.1, 8.3.7.2, 8.3.7.3 AND 8.3.7.4:
8.3.7.1 STATUTORY RIGHTS SAVINGS: NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS ANY NON-EXCLUDABLE RIGHT YOU HAVE AS A CONSUMER UNDER MANDATORY APPLICABLE GERMAN LAW, INCLUDING THE LAW IMPLEMENTING DIRECTIVE (EU) 2019/770, IN RESPECT OF DIGITAL CONTENT OR DIGITAL SERVICES. THOSE STATUTORY RIGHTS APPLY ONLY TO PERSONS WHO QUALIFY AS CONSUMERS UNDER MANDATORY APPLICABLE LAW AND ARE NOT CONFERRED ON BUSINESS USERS OR LEGAL ENTITIES UNLESS MANDATORY LAW EXPRESSLY REQUIRES.
8.3.7.2 NO ADDITIONAL WARRANTY: THE VOLUNTARY LIMITED WARRANTY IN SECTION 2.8, SUBJECT TO SECTIONS 2.8.1, 2.8.1.1, 2.8.2, 2.8.3.1, 2.8.4 AND 2.8.5, IS THE ONLY COMMERCIAL GUARANTEE GIVEN BY FC. NO ADDITIONAL COMMERCIAL GUARANTEE, WARRANTY OR REMEDY IS GIVEN OR IMPLIED BY THIS SECTION.
8.3.7.3 EXCLUSIONS AND SOLE OBLIGATIONS: TO THE MAXIMUM EXTENT PERMITTED BY MANDATORY APPLICABLE GERMAN LAW, ALL OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS, REMEDIES AND LIABILITIES ARE EXCLUDED OR LIMITED AS SET OUT IN THIS AGREEMENT, AND THE REMEDIES UNDER SECTION 2.8.2, TOGETHER WITH ANY NON-EXCLUDABLE STATUTORY RIGHTS, ARE YOUR ONLY REMEDIES, APPLY WITHOUT DUPLICATION OR DOUBLE RECOVERY, AND CONSTITUTE OUR SOLE OBLIGATIONS TO YOU.
8.3.7.4 CLAIMS: CLAIMS UNDER THE VOLUNTARY LIMITED WARRANTY IN SECTION 2.8 MUST BE MADE IN ACCORDANCE WITH SECTION 2.8.4; CLAIMS UNDER NON-EXCLUDABLE STATUTORY RIGHTS MAY BE MADE AS PROVIDED BY APPLICABLE LAW. FC’S CONTACT DETAILS AND VOLUNTARY WARRANTY CLAIM CHANNEL ARE SET OUT IN SECTION 9.3.
8.3.7.5 GERMANY: LIMITATION OF LIABILITY: FOR EACH SECTION 2.10, 5.1.4, 7.2.5, 7.3.3 AND 7.5.10 (ABOVE): THE FOLLOWING IS ADDED TO THE END OF THESE SECTIONS:
8.3.7.6 THE LIMITATIONS AND EXCLUSIONS SPECIFIED IN THIS SECTION WILL NOT APPLY: (I) TO DAMAGES CAUSED BY FC AND ITS AUTHORISED PARTIES INTENTIONALLY OR BY GROSS NEGLIGENCE; (II) TO NEGLIGENT INJURY TO LIFE, BODY OR HEALTH; (III) TO THE BREACH OF ESSENTIAL CONTRACTUAL OBLIGATIONS (KARDINALPFLICHTEN), IN WHICH CASE LIABILITY IS LIMITED TO THE FORESEEABLE DAMAGE TYPICAL FOR THIS TYPE OF CONTRACT; (IV) IN CASES OF FRAUD, EXPRESS GUARANTEES OR LIABILITY UNDER THE GERMAN PRODUCT LIABILITY ACT; OR (V) TO ANY OTHER LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED UNDER MANDATORY GERMAN LAW, INCLUDING THE PROVISIONS IMPLEMENTING DIRECTIVE (EU) 2019/770.
8.3.7.7 GERMANY: General Provisions: For Section 3 (above): The following replaces section 3.6 in its entirety: LIMITATION TO BRING AN ACTION: You acknowledge and agree with FC and its Authorised Parties that any claims resulting from this Agreement are subject to a statute of limitation of three (3) years, except in respect of the voluntary limited warranty under Section 2.8 and except to the extent a longer period cannot lawfully be excluded under applicable German law. This limitation does not apply to claims relating to Intellectual Property, confidentiality, fraud, unpaid fees or indemnities, to applications for injunctive or equitable relief, or to any claim for which the limitation period cannot lawfully be shortened.
8.3.8 HUNGARY: LIMITATION OF LIABILITY: FOR EACH SECTION 2.10, 5.1.4, 7.2.5, 7.3.3 AND 7.5.10 (ABOVE): THE FOLLOWING IS ADDED TO THE END OF THESE SECTIONS:
8.3.8.1 THE LIMITATION AND EXCLUSION SPECIFIED HEREIN SHALL NOT APPLY, TO THE EXTENT REQUIRED BY MANDATORY HUNGARIAN LAW, TO: (I) AN INTENTIONALLY CAUSED BREACH OF CONTRACT; OR (II) A BREACH OF CONTRACT CAUSING HARM TO HUMAN LIFE, PHYSICAL INTEGRITY OR HEALTH.
8.3.8.2 THE LIMITATIONS OF LIABILITY SET OUT IN THIS AGREEMENT APPLY TO THE EXTENT THEY ARE NOT PROHIBITED BY MANDATORY APPLICABLE HUNGARIAN LAW.
8.3.9 IRELAND: LIMITED WARRANTY: FOR EACH SECTION 2.8, 2.8.1, 2.8.2, 2.8.3, 2.8.4, 2.8.5, 5.1.3, 7.2.4, 7.3.2 AND 7.5.9 (ABOVE): THE FOLLOWING IS ADDED TO THE END OF THESE SECTIONS:
8.3.9.1 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL STATUTORY CONDITIONS, INCLUDING ALL WARRANTIES IMPLIED, BUT WITHOUT PREJUDICE TO THE GENERALITY OF THE FOREGOING, ALL WARRANTIES IMPLIED BY THE SALE OF GOODS ACT 1893, THE SALE OF GOODS AND SUPPLY OF SERVICES ACT 1980, OR, WHERE APPLICABLE TO DIGITAL CONTENT AND DIGITAL SERVICES SUPPLIED TO CONSUMERS, THE CONSUMER RIGHTS ACT 2022 (IRELAND), ARE HEREBY EXCLUDED EXCEPT TO THE EXTENT THEY CANNOT LAWFULLY BE EXCLUDED UNDER APPLICABLE IRISH LAW.
8.3.9.2 IRELAND: General Provisions: For Section 3 (above), The following replaces section 3.6 in its entirety: LIMITATION TO BRING AN ACTION: You acknowledge and agree with FC and its Authorised Parties that any claims resulting from this Agreement are subject to a statute of limitation of two (2) years, except to the extent a longer limitation period applies and cannot lawfully be excluded or restricted under applicable Irish law including without limitation the Consumer Rights Act 2022 (Ireland). This limitation does not apply to claims relating to Intellectual Property, confidentiality, fraud, unpaid fees or indemnities, to applications for injunctive or equitable relief, or to any claim for which the limitation period cannot lawfully be shortened.
8.3.9.3 IRELAND: LIMITATION OF LIABILITY: FOR EACH SECTION 2.10, 5.1.4, 7.2.5, 7.3.3 AND 7.5.10 (ABOVE), THE FOLLOWING SECTION 8.3.9.4 AND SECTIONS 8.3.9.5, 8.3.9.6, 8.3.9.7 AND 8.3.9.8 REPLACE EACH SECTION IN ITS ENTIRETY AS SET FORTH BELOW:
8.3.9.4 LIMITATION OF LIABILITY: EXCEPT FOR THE REMEDIES EXPRESSLY PROVIDED IN SECTION 2.8.2, IN NO EVENT WILL FC AND ITS AUTHORISED PARTIES BE LIABLE TO YOU FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS WHATSOEVER INCLUDING ANY SPECIAL, CONSEQUENTIAL, INDIRECT 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 FC AND ITS AUTHORISED PARTIES AND/OR A REPRESENTATIVE OF FC HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. NOTWITHSTANDING THE FOREGOING PARAGRAPH NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE FC’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY FC’S NEGLIGENCE OR IN RESPECT OF FRAUD OR OF ANY STATEMENTS MADE FRAUDULENTLY BY FC OR ITS AUTHORISED PARTIES, DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN IRELAND. FC’S AGGREGATE LIABILITY AND THAT OF ITS AUTHORISED PARTIES AND ITS SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS 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. FC IS ACTING ON BEHALF OF ITS AUTHORISED PARTIES AND ITS SUPPLIERS FOR THE PURPOSE OF DISCLAIMING, EXCLUDING AND LIMITING OBLIGATIONS, WARRANTIES AND LIABILITY WITH RESPECT TO THIS LICENSE ONLY AND FOR NO OTHER PURPOSE OR RESPECT AND IN NO EVENT WILL FC BE LIABLE FOR ANY CLAIMS, DEMANDS OR ACTIONS OF ANY NATURE BROUGHT BY ANY THIRD PARTY AGAINST YOU.
8.3.9.5 For the purposes of section 5.1.4 which is replaced in its entirety by section 8.3.9.4 pursuant to section 8.3.9.3 (above), the following words from section 8.3.9.4: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM OR IN CONNECTION WITH TECHNICAL SUPPORT OBTAINED OR USED BY YOU”; and (ii) the following words: “UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF ANY.”, are entirely replaced with: “ARISING OUT OF OR IN CONNECTION WITH THE PROVISION OF TECHNICAL SUPPORT UNDER SECTION 5 SHALL BE LIMITED TO THE AMOUNT PAID FOR THAT TECHNICAL SUPPORT, IF ANY.”; and,
8.3.9.6 For the purposes of section 7.2.5 which is replaced in its entirety by section 8.3.9.4 pursuant to section 8.3.9.3 (above), the following words from section 8.3.9.4: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM USE OF THE BETA SOFTWARE”; and (ii) the following words: “UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF ANY.”, are entirely replaced with: “ARISING OUT OF OR IN CONNECTION WITH THE BETA SOFTWARE UNDER SECTION 7.2 SHALL BE LIMITED TO THE AMOUNT PAID FOR THE BETA SOFTWARE, IF ANY.”; and,
8.3.9.7 For the purposes of section 7.3.3 which is replaced in its entirety by section 8.3.9.4 pursuant to section 8.3.9.3 (above), the following words from section 8.3.9.4: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM USE OF THE DEMONSTRATION SOFTWARE”; and (ii) the following words: “UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF ANY.”, are entirely replaced with: “ARISING OUT OF OR IN CONNECTION WITH THE DEMONSTRATION SOFTWARE UNDER SECTION 7.3 SHALL BE LIMITED TO THE AMOUNT PAID FOR THE DEMONSTRATION SOFTWARE, IF ANY.”; and,
8.3.9.8 For the purposes of section 7.5.10 which is replaced in its entirety by section 8.3.9.4 pursuant to section 8.3.9.3 (above), the following words from section 8.3.9.4: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM YOUR USE OF THE SDK OR FC EXTENSIONS OR DAMAGE ARISING FROM YOUR PARTICIPATION IN HOSTING OR USE OF THIRD PARTY PRODUCTS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY”; and (ii) the following words: “UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF ANY.”, are entirely replaced with: “ARISING OUT OF OR IN CONNECTION WITH THE SDK AND FC EXTENSIONS UNDER SECTION 7.5 SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS SDK LICENSE, IF ANY.”.
8.3.10 ITALY: GENERAL PROVISIONS: FOR SECTION 3 (ABOVE): THE FOLLOWING IS ADDED TO THE END OF THIS SECTION:
8.3.10.1 DATA PROTECTION: Nothing in this Agreement excludes or limits any non-excludable right or remedy available to you under applicable Italian or European Union data protection law.
8.3.11 SLOVAKIA: LIMITATION OF LIABILITY: FOR EACH SECTION 2.10, 5.1.4, 7.2.5, 7.3.3 AND 7.5.10 (ABOVE), THE FINAL JURISDICTIONAL SAVINGS SENTENCE IS REPLACED WITH: “THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION APPLY TO THE MAXIMUM EXTENT PERMITTED BY MANDATORY APPLICABLE SLOVAK LAW.”
8.3.11.1 SLOVAKIA: GENERAL PROVISIONS: For Section 3 (above), the following replaces Section 3.6 in its entirety: LIMITATION TO BRING AN ACTION: Any claim arising under or in connection with this Agreement is subject to the limitation periods prescribed by mandatory applicable Slovak law. This Section does not shorten any limitation period to the extent such shortening is prohibited by mandatory law and does not apply to claims relating to Intellectual Property, confidentiality, fraud, unpaid fees or indemnities, applications for injunctive or equitable relief, or any claim for which the applicable limitation period cannot lawfully be shortened.
8.3.12 EUROPEAN UNION: LIABILITY FOR DEFECTIVE PRODUCTS: Nothing in this Agreement excludes, restricts or limits any liability of FC to a natural person that arises under the law of an EU Member State implementing Directive (EU) 2024/2853 on liability for defective products, to the extent that such liability is actually imposed on that person under applicable law and cannot lawfully be excluded or limited. Directive (EU) 2024/2853 applies, subject to the applicable national implementing law, to products placed on the market or put into service after 8 December 2026. For products placed on the market or put into service before 9 December 2026, Council Directive 85/374/EEC and the applicable national law implementing it continue to apply to the extent provided by law. Nothing in this Section deems FC to be an economic operator, manufacturer, provider, importer, distributor or other person subject to liability where applicable law does not impose that status or liability upon it. Where any provision of this Agreement conflicts with liability that cannot lawfully be excluded or limited under the applicable regime, that provision is read down to the minimum extent necessary and the remainder continues in full force.
8.4 UNITED KINGDOM
8.4.1 UNITED KINGDOM: LIMITED WARRANTY AND STATUTORY RIGHTS: SECTIONS 2.8, 2.8.1, 2.8.2, 2.8.3.1, 2.8.4, 2.8.5, 5.1.3, 7.2.4, 7.3.2 AND 7.5.9 (ABOVE) CONTINUE TO APPLY, AS SUPPLEMENTED BY THE FOLLOWING SECTIONS 8.4.1.1, 8.4.1.2, 8.4.1.3, 8.4.1.4 AND 8.4.1.5:
8.4.1.1 STATUTORY RIGHTS SAVINGS: NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS ANY NON-EXCLUDABLE RIGHT YOU HAVE AS A CONSUMER UNDER THE CONSUMER RIGHTS ACT 2015 OR OTHER MANDATORY APPLICABLE UK LAW IN RESPECT OF DIGITAL CONTENT OR DIGITAL SERVICES. THOSE STATUTORY RIGHTS APPLY ONLY TO PERSONS WHO QUALIFY AS CONSUMERS UNDER MANDATORY APPLICABLE LAW AND ARE NOT CONFERRED ON BUSINESS USERS OR LEGAL ENTITIES UNLESS MANDATORY LAW EXPRESSLY REQUIRES.
8.4.1.2 NO ADDITIONAL WARRANTY: THE VOLUNTARY LIMITED WARRANTY IN SECTION 2.8, SUBJECT TO SECTIONS 2.8.1, 2.8.1.1, 2.8.2, 2.8.3.1, 2.8.4 AND 2.8.5, IS THE ONLY COMMERCIAL GUARANTEE GIVEN BY FC. NO ADDITIONAL COMMERCIAL GUARANTEE, WARRANTY OR REMEDY IS GIVEN OR IMPLIED BY THIS SECTION.
8.4.1.3 EXCLUSIONS AND SOLE OBLIGATIONS: TO THE MAXIMUM EXTENT PERMITTED BY MANDATORY APPLICABLE UK LAW, ALL OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS, REMEDIES AND LIABILITIES ARE EXCLUDED OR LIMITED AS SET OUT IN THIS AGREEMENT, AND THE REMEDIES UNDER SECTION 2.8.2, TOGETHER WITH ANY NON-EXCLUDABLE STATUTORY RIGHTS, ARE YOUR ONLY REMEDIES, APPLY WITHOUT DUPLICATION OR DOUBLE RECOVERY, AND CONSTITUTE OUR SOLE OBLIGATIONS TO YOU.
8.4.1.4 CLAIMS: CLAIMS UNDER THE VOLUNTARY LIMITED WARRANTY IN SECTION 2.8 MUST BE MADE IN ACCORDANCE WITH SECTION 2.8.4; CLAIMS UNDER NON-EXCLUDABLE STATUTORY RIGHTS MAY BE MADE AS PROVIDED BY APPLICABLE LAW. FC’S CONTACT DETAILS AND VOLUNTARY WARRANTY CLAIM CHANNEL ARE SET OUT IN SECTION 9.3.
8.4.1.5 THE VOLUNTARY LIMITED WARRANTY IN SECTION 2.8 AND YOUR NON-EXCLUDABLE STATUTORY RIGHTS ARE YOUR EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, EXCEPT TO THE EXTENT ANY SUCH RIGHTS, REMEDIES, GUARANTEES, WARRANTIES OR CONDITIONS CANNOT LAWFULLY BE EXCLUDED OR RESTRICTED UNDER APPLICABLE UK LAW INCLUDING WITHOUT LIMITATION THE CONSUMER RIGHTS ACT 2015.
8.4.1.6 UNITED KINGDOM: LIMITATION OF LIABILITY: FOR EACH SECTION 2.10, 5.1.4, 7.2.5, 7.3.3 AND 7.5.10 (ABOVE), THE FOLLOWING SECTION 8.4.1.7 AND SECTIONS 8.4.1.8, 8.4.1.9, 8.4.1.10, AND 8.4.1.11 REPLACE EACH SECTION IN ITS ENTIRETY AS SET FORTH BELOW:
8.4.1.7 LIMITATION OF LIABILITY: EXCEPT FOR THE REMEDIES EXPRESSLY PROVIDED IN SECTION 2.8.2, IN NO EVENT WILL FC AND ITS AUTHORISED PARTIES BE LIABLE TO YOU FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS WHATSOEVER INCLUDING ANY SPECIAL, CONSEQUENTIAL, INDIRECT 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, OR CLAIMS BY A THIRD PARTY ARISING FROM THIS AGREEMENT, EVEN IF FC AND ITS AUTHORISED PARTIES AND/OR A REPRESENTATIVE OF FC HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. NOTWITHSTANDING THE FOREGOING PARAGRAPH NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE FC’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY FC’S NEGLIGENCE OR IN RESPECT OF FRAUD OR OF ANY STATEMENTS MADE FRAUDULENTLY BY FC OR ITS AUTHORISED PARTIES, DIRECTORS, OFFICERS, EMPLOYEES OR CONTRACTORS OR ANY BREACH OF ITS OBLIGATIONS IMPLIED BY SECTION 12 OF THE SALE OF GOODS ACT 1979, SECTION 2 OF THE SUPPLY OF GOODS AND SERVICES ACT 1982, SECTIONS 9 TO 11 OF THE CONSUMER RIGHTS ACT 2015 OR, WHERE APPLICABLE TO DIGITAL CONTENT, SECTIONS 34 TO 37 AND 41 OF THE CONSUMER RIGHTS ACT 2015, OR ANY STATUTORY MODIFICATION OR RE-ENACTMENT OF ANY SUCH SECTION, OR ANY OTHER PROVISION OF PART 1 OF THE CONSUMER RIGHTS ACT 2015 THAT CANNOT LAWFULLY BE EXCLUDED OR RESTRICTED. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN THE UNITED KINGDOM. FC’S AGGREGATE LIABILITY AND THAT OF ITS AUTHORISED PARTIES AND ITS SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS 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. FC IS ACTING ON BEHALF OF ITS AUTHORISED PARTIES AND ITS SUPPLIERS FOR THE PURPOSE OF DISCLAIMING, EXCLUDING AND LIMITING OBLIGATIONS, WARRANTIES AND LIABILITY WITH RESPECT TO THIS LICENSE ONLY AND FOR NO OTHER PURPOSE OR RESPECT AND IN NO EVENT WILL FC BE LIABLE FOR ANY CLAIMS, DEMANDS OR ACTIONS OF ANY NATURE BROUGHT BY ANY THIRD PARTY AGAINST YOU.
8.4.1.8 For the purposes of section 5.1.4 which is replaced in its entirety by section 8.4.1.7 pursuant to section 8.4.1.6 (above), the following words from section 8.4.1.7: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM OR IN CONNECTION WITH TECHNICAL SUPPORT OBTAINED OR USED BY YOU”; and (ii) the following words: “UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF ANY.”, are entirely replaced with: “ARISING OUT OF OR IN CONNECTION WITH THE PROVISION OF TECHNICAL SUPPORT UNDER SECTION 5 SHALL BE LIMITED TO THE AMOUNT PAID FOR THAT TECHNICAL SUPPORT, IF ANY.”; and,
8.4.1.9 For the purposes of section 7.2.5 which is replaced in its entirety by section 8.4.1.7 pursuant to section 8.4.1.6 (above), the following words from section 8.4.1.7: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM USE OF THE BETA SOFTWARE”; and (ii) the following words: “UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF ANY.”, are entirely replaced with: “ARISING OUT OF OR IN CONNECTION WITH THE BETA SOFTWARE UNDER SECTION 7.2 SHALL BE LIMITED TO THE AMOUNT PAID FOR THE BETA SOFTWARE, IF ANY.”; and,
8.4.1.10 For the purposes of section 7.3.3 which is replaced in its entirety by section 8.4.1.7 pursuant to section 8.4.1.6 (above), the following words from section 8.4.1.7: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM USE OF THE DEMONSTRATION SOFTWARE”; and (ii) the following words: “UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF ANY.”, are entirely replaced with: “ARISING OUT OF OR IN CONNECTION WITH THE DEMONSTRATION SOFTWARE UNDER SECTION 7.3 SHALL BE LIMITED TO THE AMOUNT PAID FOR THE DEMONSTRATION SOFTWARE, IF ANY.”; and,
8.4.1.11 For the purposes of section 7.5.10 which is replaced in its entirety by section 8.4.1.7 pursuant to section 8.4.1.6 (above), the following words from section 8.4.1.7: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM YOUR USE OF THE SDK OR FC EXTENSIONS OR DAMAGE ARISING FROM YOUR PARTICIPATION IN HOSTING OR USE OF THIRD PARTY PRODUCTS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY”; and (ii) the following words: “UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF ANY.”, are entirely replaced with: “ARISING OUT OF OR IN CONNECTION WITH THE SDK AND FC EXTENSIONS UNDER SECTION 7.5 SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS SDK LICENSE, IF ANY.”.
8.4.1.12 UNITED KINGDOM: SUBSCRIPTION CONTRACTS, RENEWALS AND PRICING: Nothing in this Agreement excludes or restricts any right or obligation that applies under the Consumer Rights Act 2015, the Digital Markets, Competition and Consumers Act 2024 or any regulations made under those Acts, as amended, replaced and brought into force from time to time, including in respect of subscription contracts, renewals, pricing, pre-contract information, cooling-off and cancellation. Any term of this Agreement applies only to the extent it does not exclude or restrict those non-excludable rights, which prevail in the event of conflict.
8.5 MIDDLE EAST AND AFRICA
8.5.1 SOUTH AFRICA, NAMIBIA, LESOTHO, ESWATINI (FORMERLY SWAZILAND): LIMITED WARRANTY: FOR EACH SECTION 2.8, 2.8.1, 2.8.2, 2.8.3, 2.8.4, 2.8.5, 5.1.3, 7.2.4, 7.3.2 AND 7.5.9 (ABOVE): THE FOLLOWING IS ADDED TO THE END OF THESE SECTIONS:
8.5.1.1 NOTWITHSTANDING ANY ADVICE OR ASSISTANCE THAT FC MAY HAVE GIVEN TO YOU PRIOR TO THE SELECTION OF SUCH SOFTWARE, THE WARRANTIES CONTAINED IN SECTIONS 2.8, 2.8.1, 2.8.2, 2.8.3, 2.8.4 AND 2.8.5 CONSTITUTE FC’S ENTIRE LIABILITY IN RESPECT OF THE SOFTWARE AND ARE IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS OR TERMS, TO THE MAXIMUM EXTENT PERMITTED BY THE CONSUMER PROTECTION ACT 68 OF 2008 (SOUTH AFRICA) AND EQUIVALENT LEGISLATION APPLICABLE IN NAMIBIA, LESOTHO AND ESWATINI.
8.6 OCEANIA
8.6.1 NEW ZEALAND: LIMITED WARRANTY: FOR EACH SECTION 2.8, 2.8.1, 2.8.2, 2.8.3, 2.8.4, 2.8.5, 5.1.3, 7.2.4, 7.3.2 AND 7.5.9 (ABOVE): THE FOLLOWING IS ADDED AT THE END OF THESE SECTIONS:
The warranties specified in this section are in addition to any rights you may have under the Consumer Guarantees Act 1993 or other legislation which cannot be excluded or limited. Where the Software is supplied and acquired in trade and all parties to the applicable transaction are in trade, the parties agree, pursuant to section 43 of the Consumer Guarantees Act 1993, that the provisions of that Act will not apply to this Agreement to the maximum extent permitted by that section, provided that this Agreement is in writing and it is fair and reasonable that the parties are bound by that exclusion. Nothing in this Section excludes or restricts the Consumer Guarantees Act 1993 where the statutory requirements for contracting out are not satisfied.
8.6.1.1 NEW ZEALAND: LIMITATION OF LIABILITY: FOR EACH SECTION 2.10, 5.1.4, 7.2.5, 7.3.3 AND 7.5.10 (ABOVE): THE FOLLOWING IS ADDED AT THE END OF THESE SECTIONS:
Where you acquire the Software for the purposes of a business and the parties have validly contracted out of the Consumer Guarantees Act 1993 in accordance with Section 8.6.1, the limitations in this Section apply to the fullest extent permitted by law; otherwise they apply subject to that Act.
PART IV
9. LEGAL DOCUMENTS, CONTACT DETAILS & SUPPORT
9.1 Terms and Conditions of Sale, as amended from time to time, are available at:
https://fcl.software/legal/terms-conditions-sale/
9.2 Privacy Policy, as amended from time to time, is available at:
https://fcl.software/legal/privacy-policy/
9.3 CONTACT DETAILS, WARRANTY CLAIMS AND SUPPORT
For the purposes of this Agreement, the applicable contact details are:
A Future Corporation Pty Ltd
ACN 078 538 002
Business and Warranty Address:
Unit 1.19, 999 Nepean Hwy
Moorabbin VIC 3189
Australia
Postal Address:
GPO Box 3431
Melbourne VIC 3001
Australia
Telephone: +61 3 9583 2331
Email: legal@fcl.software
Warranty Claims and Technical Support: https://future.support
Warranty Claims: Warranty claims may be submitted to FC using the contact details above or through any warranty claim channel expressly designated by FC for the affected Software.
Technical Support: Technical Support is provided or administered as set out in Sections 5 and 7.6.3.
9.4 UPDATES TO LINKED DOCUMENTS: An amendment to a linked document does not retrospectively remove or materially reduce a License right already granted under this Agreement unless you expressly agree to that amendment or applicable law otherwise permits it. Amendments apply prospectively and subject to any notice or consent requirements imposed by applicable law.
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