Terms and Conditions of Sale
I. A FUTURE CORPORATION PTY LTD (HEREAFTER “FUTURE CORPORATION”, “FC”, “AFC”, “OUR”, “OURS”, “US”, OR “WE”) AND YOU AND/OR THE LEGAL ENTITY (I) YOU HEREBY REPRESENT; AND/OR (II) THAT INTENDS TO PURCHASE OR LICENSE GOODS FROM FUTURE CORPORATION, FC OR AFC (REFERRED COLLECTIVELY HEREIN AS “YOU” OR “YOUR”) AGREE THAT THE PURCHASE OR LICENSING OF (I) FUTURE CORPORATION HARDWARE PRODUCTS (HEREAFTER “HARDWARE”); AND (II) FUTURE CORPORATION SOFTWARE PRODUCTS (HEREAFTER “SOFTWARE”); AND (III) FUTURE CORPORATION HARDWARE AND/OR SOFTWARE SERVICES AND SUPPORT (HEREAFTER “SERVICES”); AND (IV) THIRD PARTY SOFTWARE PRODUCTS (HEREAFTER “3RD PARTY SOFTWARE”) ARE MADE UNDER THESE TERMS AND CONDITIONS WHERE FUTURE CORPORATION IS THE SELLER OF THOSE GOODS, AND THAT FUTURE CORPORATION, FC, AFC, ITS AUTHORISED PARTIES AND SUPPLIERS SHALL NOT BE BOUND BY YOUR, ANOTHER OR 3RD PARTY’S ADDITIONAL OR DIFFERENT TERMS.
II. IMPORTANT: TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU ACCEPT THE TERMS AND CONDITIONS AS SET FORTH HEREIN BY YOUR OWN AFFIRMATIVE CONDUCT AFTER THESE TERMS AND CONDITIONS HAVE BEEN CONSPICUOUSLY MADE AVAILABLE TO YOU, INCLUDING BY: (I) AFFIRMATIVELY ACCEPTING THEM THROUGH AN APPLICATION OR CHECKOUT PROCESS; AND/OR (II) SUBMITTING AN APPLICATION OR ORDER TO PURCHASE OR TO LICENSE; AND/OR (III) COMPLETING A PURCHASE OR LICENSE OF: HARDWARE, SOFTWARE, 3RD PARTY SOFTWARE AND/OR SERVICES (REFERRED COLLECTIVELY HEREIN AS “GOODS”); AND/OR (IV) ANY OTHER LEGALLY EFFECTIVE AFFIRMATIVE ACCEPTANCE. FUTURE CORPORATION’S ACCEPTANCE OF YOUR APPLICATION OR ORDER CREATES THE RELEVANT SALE OR SUPPLY TRANSACTION. YOU FURTHER ACKNOWLEDGE AND AGREE WITH FUTURE CORPORATION THAT THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND/OR THE LEGAL ENTITY THAT MAKES APPLICATION AND/OR ORDERS AND/OR PURCHASES OR LICENSES ANY GOODS FROM FUTURE CORPORATION. THESE TERMS AND CONDITIONS OF SALE ARE FUTURE CORPORATION’S TERMS OF SALE AND APPLY TO A SALE OR SUPPLY OF GOODS WHERE FUTURE CORPORATION ACCEPTS YOUR ORDER OR IS THE SELLER OF THE GOODS. WHERE A MANUFACTURER, AN AUTHORISED DEALER, A RESELLER OR ANY OTHER INDEPENDENT SELLER IS THE SELLER, THAT SELLER’S OWN TERMS AND CONDITIONS OF SALE OR OTHER TRANSACTION TERMS DISCLOSED AT OR BEFORE THE TIME OF PURCHASE MAY GOVERN THAT SALE. NOTHING IN THESE TERMS ALTERS THE LICENSING OF THE SOFTWARE UNDER THE SOFTWARE LICENSE AGREEMENT, UNDER WHICH FUTURE CORPORATION IS THE LICENSOR (SEE SECTION 1.3 OF THAT AGREEMENT), OR THE OBLIGATIONS OF FUTURE CORPORATION AS LICENSOR IN RESPECT OF THE SOFTWARE, INCLUDING THE SOFTWARE LICENSE, WARRANTY AND TECHNICAL SUPPORT, WHICH ARE GOVERNED BY THAT AGREEMENT.
III. BINDING PAYMENT OBLIGATIONS: YOUR OBLIGATION TO PAY ANY AMOUNT THAT HAS VALIDLY ACCRUED AND BECOME DUE AND PAYABLE UNDER THIS AGREEMENT IS BINDING AND CONTINUES NOTWITHSTANDING: YOUR CHANGE OF MIND; YOUR INABILITY OR DECISION NOT TO USE THE GOODS OR ANY PART THEREOF; ANY CHANGE IN YOUR PERSONAL OR COMMERCIAL CIRCUMSTANCES; OBSOLESCENCE THAT DOES NOT GIVE RISE TO A CONTRACTUAL OR STATUTORY ENTITLEMENT; OR ANY OTHER CIRCUMSTANCE THAT DOES NOT GIVE RISE TO A CONTRACTUAL OR LEGAL ENTITLEMENT TO WITHHOLD, REDUCE, SET OFF OR RECOVER THAT AMOUNT. THIS PARAGRAPH DOES NOT REQUIRE YOU TO PAY, AND DOES NOT PREVENT YOU FROM WITHHOLDING, REDUCING OR RECOVERING, AN AMOUNT TO THE EXTENT THAT YOU HAVE A CONTRACTUAL RIGHT, A REMEDY FOR NON-DELIVERY, A FAILURE OF CONSIDERATION, A WARRANTY REMEDY, A STATUTORY REMEDY, A CANCELLATION RIGHT, A REFUND RIGHT, A LAWFUL RIGHT OF SET-OFF, A NON-EXCLUDABLE RIGHT, OR ANY OTHER APPLICABLE LEGAL BASIS TO DO SO, INCLUDING ANY RIGHTS, GUARANTEES, REMEDIES OR PROTECTIONS YOU HAVE UNDER THE LAWS APPLICABLE TO YOU IN YOUR JURISDICTION THAT CANNOT LAWFULLY BE EXCLUDED, RESTRICTED OR MODIFIED (INCLUDING WITHOUT LIMITATION ANY APPLICABLE COOLING-OFF, RETURN, REFUND OR TERMINATION RIGHTS, ANY APPLICABLE UNFAIR CONTRACT TERMS OR CONSUMER PROTECTION LAWS, AND INCLUDING THE AUSTRALIAN CONSUMER LAW).
THIS AGREEMENT INCLUDES THE FOLLOWING
1. TERMS AND DEFINITIONS
2. NOTICE SPECIFIC TO THE SOFTWARE
3. SALES OF GOODS AND LICENSING
4. LIMITED WARRANTY
5. NO LIABILITY
6. SOFTWARE – LIMITED INDEMNITY AGAINST INFRINGEMENT
7. SERVICES
8. GENERAL & TECHNICAL SUPPORT
9. GOVERNING LAW
10. TERMINATION
11. GENERAL PROVISIONS
12. LINKS TO FUTURE CORPORATION RELATED LEGAL DOCUMENTS & SUPPORT
1. TERMS AND DEFINITIONS
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 the armed and covert forces, 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 English dictionary at such date this Agreement is executed by the parties 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), excluding those words referred to in section 1.1.6 (below), are used in this Agreement for the convenience of the Parties only and shall not be incorporated into this Agreement and shall not be deemed to be any indication of the meaning of the Clauses or Sections to which they relate; and,
1.1.6 For the purposes of section 1.1.5 (above) Numbered Headings hereby excludes all those words contained within inverted commas (“”) or in parentheses (), italicised or bolded; and,
1.1.7 To avoid any doubt those words contained within inverted commas (“”) or in parentheses (), italicised or bolded that are not Numbered Headings are included in and form part of this Agreement.
1.2 IN THIS AGREEMENT UNLESS EXPRESSLY STATED OTHERWISE THE FOLLOWING WORDS, GROUPING OF WORDS OR PHRASES SHALL HAVE THE FOLLOWING MEANING:
“Academic License” means a restricted version of the Software license which is only sold to a qualifying and registered academic institution regardless of the payment method.
“Account” and “Account Holder” means your unique registration with Future Corporation, established or administered by Future Corporation or by an Authorised Service Provider acting on its behalf within a Customer Portal, through which your details and the Software products licensed from Future Corporation may be securely stored and managed under the Terms and Conditions of Sale and Privacy Notice (see section 12 below) published on our website.
“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. of One Apple Park Way, Cupertino, CA 95014-0642, United States.
“Apple computer” means an Apple-branded desktop or notebook computer running a version of MacOS expressly supported for the Software by Future Corporation. 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 Future Corporation (see “MacOS” below).
“Authorised Dealer” means an individual or a business (incorporated or otherwise) that has been approved and authorised by Future Corporation 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 Future Corporation, as identified in the relevant written authorisation, to distribute, supply, promote or sell Goods or 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, Future Corporation’s written authorisation, and does not merely by acting in that capacity become the Licensor, owner of any intellectual property, warrantor or general agent of Future Corporation.
“Authorised Party” means an Authorised Channel Participant or an Authorised Service Provider acting within the scope of a written authorisation issued by Future Corporation. An Authorised Party is an Authorised Party only under Future Corporation’s written authorisation and only while acting within its scope. An Authorised Party may receive the benefit of the protections, disclaimers, exclusions, limitations of liability and indemnities under this Agreement, but does not acquire ownership of any intellectual property of Future Corporation unless expressly stated in a separate written agreement signed by Future Corporation.
“Authorised Service Provider” means an independent contractor, processor, platform operator, technical service provider or other person or entity expressly authorised by Future Corporation 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 Future Corporation’s written authorisation, and does not merely by performing those functions become the Licensor, seller, warrantor or general agent of Future Corporation.
“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 Future Corporation 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.
“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, digital wallet, and any other payment method that is accepted by Future Corporation, an authorised seller or an authorised payment processor.
“Chargeback” means any reversal, dispute, retrieval request, forced refund, payment processor deduction, card scheme claim, PayPal claim, bank reversal, fraud claim or similar payment reversal process, whether commenced by you, your bank, a card issuer, payment processor or any other person.
“Customer Number” means Product Serial Number for the purposes of this Agreement (see below).
“Customer Portal” means a private and secure gateway operated by or on behalf of Future Corporation, through which an Account Holder may access and manage information provided to Future Corporation, 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.
“Documentation” means any accompanying printed materials, user guides and help content supplied or identified by Future Corporation for the licensed version of the Software, and their online or electronic equivalents.
“Expert” means an individual or individuals who comply with the experience and/or tertiary qualifications as required under the Software License Agreement to provide sworn testimony in the event of a dispute between the parties hereto in a court of competent jurisdiction, to assist the court if required.
“First user” means the individual or legal entity that first obtained the Software License from Future Corporation, whether directly or through an Authorised Channel Participant or other channel authorised by Future Corporation.
“Full License” means an unrestricted version of the Software license which is sold without the requirement of a prequalifying condition, such as academic, student, teacher, a lower level, or an earlier version of the Software (Upgrade) regardless of the payment method. To AVOID DOUBT, Full License does not of itself mean Perpetual License. The applicable License Type and payment method are determined separately under the Software License Agreement. Where a Full License is paid by Instalments, once the final Instalment has been paid and cleared, the instalment-payment status ends and the underlying License Type governs. This does not convert Subscription Software into a Perpetual License.
“Future Corporation”, “FC” or “AFC” means A Future Corporation Pty Ltd A.C.N. 078 538 002 of Unit 1.19 999 Nepean Hwy, Moorabbin VIC 3189 Australia, and includes Future Corporation only in its capacity as owner, licensor, developer, publisher or seller of its own Software, Goods, Services, websites and related intellectual property.
“Future Corporation and its Authorised Parties” means a collective group of parties including (i) Future Corporation, and (ii) any Authorised Party, but only to the extent each such party is acting within its own separate legal capacity and commercial role.
“Authorised Reseller Edition” means an edition of the Software produced by FC for an Authorised Reseller (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) which may incorporate the Authorised Reseller’s user interface, branding, product name, logos and marks, may be licensed on a one-time, instalment or subscription basis, and may be bundled with hardware. An Authorised Reseller Edition is licensed by FC, and the intellectual property in the Software remains owned by FC while any reseller branding remains owned by the relevant Authorised Reseller.
“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 Future Corporation which appends or modifies this agreement means a written document signed by the C.E.O., a director, a vice president, or a senior executive of Future Corporation that is duly authorised to represent Future Corporation for such purposes.
“Install Code”, “Computer Identification Number” or “CID” means the unique number, hash or identifier generated by or for the Software to identify a computer, device, virtual environment, operating system installation or other authorised installation environment, and which may be required to Activate, Authorise, Register, Validate or maintain the Software.
“Instalment Software or Pay Over Time 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 Software License is fully paid when the final payment is made and cleared. To AVOID DOUBT Instalment Software is not its own version of the Software, it refers to a payment method for any qualifying Software product.
“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.
“License Management Regime” means the system employed by Future Corporation and the Software to manage the Software’s Licensing on a computer.
“License Remaining” means the contiguous time remaining (usually reported in days) before the License expires on a computer.
“License Status” means the current state of the Software License on a computer.
“License Type” means the method of payment for the Software License 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 for Apple computers, but only those versions, builds and variants expressly listed by Future Corporation as supported in the Software’s published specifications at the time of purchase, licensing, activation or installation. To avoid any doubt, Future Corporation does not warrant compatibility with unsupported, beta, preview, discontinued, modified or future versions of MacOS, Apple hardware, Apple security frameworks or Apple APIs unless expressly stated by Future Corporation in writing.
“Materials and workmanship” means the Software’s physical: (i) media (including but not limited to discs and the hardware security device), (ii) written (printed) materials, (iii) packaging, and (iv) any other similar materials but does not refer or relate to the Software program and/or its components, extras, plug-ins, snap-ins, modules or its code, or any online services. Materials and workmanship does not mean or include the quantity or quality of the Software or its code, its fitness for purpose or merchantability.
“Microsoft” means Microsoft Corporation Inc. of 1 Microsoft Way, Redmond, WA 98052-6399 United States.
“Module” means Component for the purposes of this Agreement (above).
“Month” or “Months” means consecutive calendar months and does not exclude weekend days, or any: public, bank and government sanctioned public holidays within such month or months.
“MSRP” means Manufacturer’s Suggested Retail Price abbreviated to MSRP and has the same meaning as: Recommended Retail Price or RRP, or the list price.
“Numbered Headings” means a word or group of words within this Agreement that are immediately preceded by a numeric value which is the consecutive decimalised number to those numbers that have come before it in preceding sections and does not include alpha, roman or other numerals which may appear within and throughout the various sections of this Agreement.
“Online” means access to and/or interaction with the global computer network commonly referred to as the Internet or world wide web via a computer or other device whether it be unrestricted or otherwise.
“Operating System” means 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 Future Corporation, or withdrawing from optional Performance Reporting, to the extent permitted by the applicable Privacy Notice and applicable law.
“Original Equipment Manufacturer” or “OEM” means a variation, edition or license of the Software that is exclusively included, bundled, supplied, distributed or licensed with a piece of third-party equipment, hardware, machine or device, including but not limited to CNC, engraving, laser, plotting, printing, routing and vinyl cutting machines and devices, by a manufacturer and/or its agents, dealers or authorised distributors to end-users. OEM Software is licensed by Future Corporation as the Licensor under the Software License Agreement.
“Output File” means a file in a proprietary or generic format that has been created and saved and/or exported by the Software.
“Pay upfront (no more to pay)” means Perpetual License for the purposes of this Agreement.
“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 the Software License Agreement, being up to two (2) compatible Computers for a License governed by Section 2.1.2 of that Agreement unless a different number is expressly specified for the applicable License Type, edition of the Software or a valid Volume License granted by Future Corporation.
“Performance Reporting” or “Performance Report” means the secure collection, storage and periodic transmission to Future Corporation, 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 Notice and applicable law.
“Perpetual”, “Perpetual License” or “Pay upfront (no more to pay)” means a Software 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. Future Corporation 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: Future Corporation 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 Future Corporation will support, update or ensure the ongoing compatibility of that version indefinitely. 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 Future Corporation 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.
“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 Future Corporation 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 Future Corporation under the terms of this Agreement.
“Product Life” means the period from when 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, replacement or upgraded version of the Software is released for licensing to the public, or such earlier date as Future Corporation determines at its absolute discretion to discontinue, withdraw or cease supporting that version, whichever occurs first, subject always to applicable law. Future Corporation 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 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).
“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 Future Corporation 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 Future Corporation that assists a software programmer to create components, file format filters for Future Corporation Software and/or its components for use with third party computer programs, utilities, or applications.
“Software” means (i) computer software (including its compiled code), and/or (ii) a computer program including 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 Future Corporation 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 Protection Measures” or “SPM” means the various technical, licensing, account, activation, authorisation, registration, validation, entitlement, monitoring and anti-circumvention processes, schemas and systems used by Future Corporation and/or the Software to protect the Software, Content Files, Components, Services, accounts, licenses, Product Serial Numbers, Software License Numbers and related IP from unauthorised access, copying, misuse, fraud, chargeback abuse, non-payment, circumvention or unlawful use. These measures may include Activation, Authorisation, Registration, Validation, CID or Install Code checks, license status checks, server-side entitlement checks and related security controls, and must be correctly implemented and maintained for the Software to fully operate.
“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.
“Student or Teacher License” means a restricted version of the Software license which is only sold to (i) enrolled students or (ii) registered teachers (academic practitioners) of a qualifying and registered academic institution regardless of the payment method.
“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. To AVOID DOUBT Subscription Software is not its own version of the Software, it refers to a payment method for any qualifying Software product.
“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.
“Supervisor” and “Manager” means an employee of Future Corporation who has a senior position within the company and has been authorised by the C.E.O., a director, a vice president, or senior executive of Future Corporation to represent Future Corporation for the tasks as expressly set forth in this Agreement.
“Supplier” means an individual, or a business, or a corporation which has and/or continues to provide Future Corporation with any goods, intellectual property and/or services to assist Future Corporation in designing, creating, producing, and delivering the Software.
“Technical support” means the identification and attempted remedy (successful or otherwise) of an error, bug or an unexpected circumstance pertaining or relating to the Software when used in accordance with the Software’s documentation, the Operating System and directions from Future Corporation, undertaken by Future Corporation 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.
“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).
“Upgrade License” means an unrestricted version of the Software license which is only sold to existing licensees of (i) a lower level of the same Software or (ii) an earlier version of the same Software regardless of the payment method.
“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 that is received and accepted by Future Corporation, where the information provided by the purchaser and the payment method used are accepted prima facie as genuine and payment is subsequently processed and cleared through a payment method, payment service or authorised payment-processing facility accepted by Future Corporation from time to time.
“Version” means the numeric or alphanumeric value given to the Software as each subsequent edition is released for licensing by Future Corporation at its discretion from time to time.
“Volume License” means either (i) a Site License granted in single licenses, or (ii) a License Pack usually granted in multiples of five (5) five licenses, or (iii) License Seats usually granted in multiples of one hundred (100) licenses.
“Windows” means Microsoft’s computer operating system software for IBM compatible computers, but only those versions, builds and variants expressly listed by Future Corporation as supported in the Software’s published specifications at the time of purchase, licensing, activation or installation. To avoid any doubt, Future Corporation does not warrant compatibility with unsupported, beta, preview, discontinued, modified or future versions of Windows, Microsoft security frameworks, Microsoft APIs or any third-party drivers unless expressly stated by Future Corporation in writing.
“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.
2. NOTICE SPECIFIC TO THE SOFTWARE
2.1 SOFTWARE LICENSE: FUTURE CORPORATION SOFTWARE IS LICENSED, NOT SOLD, AND ANY REFERENCE TO THE SALE OF, TRANSFER OF, TITLE OF, OR THE SELLING OF THE SOFTWARE HEREIN OR ANYWHERE AT ANY FUTURE CORPORATION INTERNET SITE OR WITHIN ANY PRICE MATERIALS SHALL BE CONSTRUED AS THE GRANT OF A NONEXCLUSIVE LICENSE TO SOME USE OF THE SOFTWARE ONLY IN ACCORDANCE WITH ITS SOFTWARE LICENSE AGREEMENT (SEE SECTION 12 BELOW) AND SHALL NOT BE CONSTRUED AS A SALE OF ANY RIGHTS THERETO OR THEREIN THE SOFTWARE, ITS ALGORITHMS, DESIGNS, METHODS, LAYOUTS, ORGANISATION, STRUCTURE, ARTIFICIAL INTELLIGENCE WORKFLOWS, PROMPTS, MODELS WHERE APPLICABLE, SOFTWARE PROTECTION MEASURES, ACTIVATION SYSTEMS, VALIDATION SYSTEMS, COMPUTER IDENTIFICATION SYSTEMS AND/OR UNDERLYING TECHNOLOGIES OR ANY ASSOCIATED INTELLECTUAL PROPERTY THEREOF. ANY FUTURE CORPORATION OR 3RD PARTY SOFTWARE THAT IS MADE AVAILABLE TO DOWNLOAD FROM ANY FUTURE CORPORATION INTERNET SITE OR ON DISC (CD/DVD) IS THE COPYRIGHTED WORK OF FUTURE CORPORATION AND/OR ITS SUPPLIERS AND FUTURE CORPORATION, ITS AUTHORISED PARTIES, AND ITS SUPPLIERS RESERVE ALL OTHER RIGHTS. USE OF SUCH SOFTWARE IS GOVERNED BY THE TERMS OF THE SOFTWARE LICENSE AGREEMENT, AND YOU WILL BE UNABLE TO INSTALL ANY SOFTWARE THAT IS ACCOMPANIED BY OR INCLUDES A SOFTWARE LICENSE AGREEMENT, UNLESS YOU FIRST AGREE TO BE BOUND BY SUCH SOFTWARE LICENSE AGREEMENT. THE SOFTWARE IS MADE AVAILABLE FOR DOWNLOADING OR INSTALLATION SOLELY FOR USE BY END USERS ACCORDING TO THE SOFTWARE LICENSE AGREEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY REPRODUCTION, ATTEMPT TO CIRCUMVENT THE SOFTWARE PROTECTION MEASURES AND/OR REDISTRIBUTION OF THE SOFTWARE NOT IN ACCORDANCE WITH THE SOFTWARE LICENSE AGREEMENT IS EXPRESSLY PROHIBITED, AND MAY RESULT IN TERMINATION OF THE SOFTWARE LICENSE AND THIS AGREEMENT AND/OR A CLAIM OF DAMAGES AGAINST YOU AND/OR SEVERE PENALTIES AT LAW. WITHOUT LIMITING THE FOREGOING, AND UNLESS PERMITTED IN WRITING AND DULY SIGNED BY AN AUTHORISED SUPERVISOR OR MANAGER OF FUTURE CORPORATION OR ONE OF ITS AUTHORISED PARTIES COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS HEREBY PROHIBITED.
2.1.1 AI, TRAINING AND DATASET RESTRICTIONS: To the extent permitted by applicable law and subject always to the Software License Agreement, you must not use the Software, Content Files, Documentation, Output Files supplied by Future Corporation, Sample Files, screenshots, workflows, user interface, prompts, code, algorithms, activation systems, Software Protection Measures, machine drivers or any related materials to train, fine-tune, validate, benchmark, scrape, extract, compile or create any artificial intelligence model, machine learning model, dataset, competing software product, derivative work or automated system, except to the limited extent expressly permitted by Future Corporation in writing or by an AI feature supplied by Future Corporation as part of the Software.
2.2 THE SOFTWARE AND WARRANTY: FUTURE CORPORATION SOFTWARE IS WARRANTED, IF AT ALL, ONLY ACCORDING TO THE TERMS OF THE SOFTWARE LICENSE AGREEMENT. EXCEPT AS WARRANTED IN THE SOFTWARE LICENSE AGREEMENT, AND TO THE EXTENT PERMITTED BY LAW, FUTURE CORPORATION HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO FUTURE CORPORATION AND 3RD PARTY SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
2.3 WARNING: (1) FUTURE CORPORATION SOFTWARE AND GOODS ARE NOT DESIGNED WITH COMPONENTS AND TESTING FOR A LEVEL OF RELIABILITY SUITABLE FOR USE IN OR IN CONNECTION WITH NUCLEAR OR SCIENTIFIC OR LIKE FACILITIES THAT INVOLVE HIGH-RISK AND/OR DANGEROUS ACTIVITIES, SURGICAL IMPLANTS OR AS CRITICAL COMPONENTS IN ANY LIFE SUPPORT SYSTEMS WHOSE FAILURE TO PERFORM CAN REASONABLY BE EXPECTED TO CAUSE SIGNIFICANT INJURY TO A PERSON OR PERSONS AND/OR TO A POPULATION; AND (2) IN ANY APPLICATION, INCLUDING THE ABOVE, RELIABILITY OF OPERATION OF FUTURE CORPORATION SOFTWARE CAN BE IMPAIRED BY ADVERSE FACTORS, INCLUDING BUT NOT LIMITED TO FLUCTUATIONS IN ELECTRICAL POWER SUPPLY, COMPUTER HARDWARE MALFUNCTIONS, COMPUTER OPERATING SYSTEM SOFTWARE FITNESS, FITNESS OF COMPILERS AND DEVELOPMENT SOFTWARE USED TO DEVELOP AN APPLICATION, INSTALLATION ERRORS, SOFTWARE AND HARDWARE COMPATIBILITY PROBLEMS, MALFUNCTIONS OR FAILURES OF ELECTRONIC MONITORING OR CONTROL DEVICES, TRANSIENT FAILURES OF ELECTRONIC SYSTEMS (HARDWARE AND/OR SOFTWARE), UNANTICIPATED USES OR MISUSES, OR ERRORS ON THE PART OF THE USER OR APPLICATIONS DESIGNER (ADVERSE FACTORS SUCH AS THESE ARE HEREAFTER COLLECTIVELY TERMED “SYSTEM FAILURES”). ANY APPLICATION WHERE A SYSTEM FAILURE WOULD CREATE A RISK OF HARM TO PROPERTY OR PERSONS (INCLUDING THE RISK OF BODILY INJURY AND DEATH) SHOULD NOT BE RELIANT SOLELY UPON ONE FORM OF ELECTRONIC SYSTEM DUE TO THE RISK OF SYSTEM FAILURE. TO AVOID DAMAGE, INJURY, OR DEATH, THE USER OR APPLICATION DESIGNER MUST TAKE ALL REASONABLE STEPS TO PROTECT AGAINST SYSTEM FAILURES, INCLUDING BUT NOT LIMITED TO BACK-UP OR SHUT DOWN MECHANISMS. BECAUSE EACH END-USER SYSTEM IS CUSTOMISED AND DIFFERS FROM FUTURE CORPORATION’S TESTING PLATFORMS AND BECAUSE A USER OR APPLICATION DESIGNER MAY USE FUTURE CORPORATION SOFTWARE AND/OR GOODS IN COMBINATION WITH OTHER PRODUCTS IN A MANNER NOT EVALUATED OR CONTEMPLATED BY FUTURE CORPORATION, THE USER OR APPLICATION DESIGNER IS ULTIMATELY RESPONSIBLE FOR VERIFYING AND VALIDATING THE SUITABILITY OF FUTURE CORPORATION SOFTWARE AND/OR GOODS WHENEVER SUCH SOFTWARE AND/OR GOODS ARE INCORPORATED IN A SYSTEM OR APPLICATION, INCLUDING, WITHOUT LIMITATION, THE APPROPRIATE DESIGN, PROCESS AND SAFETY LEVEL OF SUCH SYSTEM OR APPLICATION.
2.4 MACHINE, DRIVER AND OUTPUT WARNING: You acknowledge and agree that cutting, plotting, routing, engraving, printing, laser, CNC and other machine output depends on third-party hardware, firmware, drivers, operating systems, connection methods, materials, settings, calibration, maintenance, user skill and environmental conditions outside Future Corporation’s control. To the extent permitted by applicable law, Future Corporation does not warrant that any Software will operate every make or model of machine, prevent failed runs, prevent wasted materials, prevent hardware damage, prevent unsafe operation, or remain compatible with future operating systems, hardware platforms, drivers, APIs, security frameworks or third-party technologies.
3. SALES OF GOODS AND LICENSING
3.1 TITLE: Ownership and property shall pass from Future Corporation to you upon delivery of the Goods. Notwithstanding this Future Corporation retains a security interest (see below) and right of possession in the Goods until you make full and final payment. If payment is not made within the agreed payment terms, Future Corporation shall without prejudice to any other remedies, be entitled to enter the premises where the Goods are situated and re-take possession of the Goods. Upon the appointment of Receiver, Receiver and Manager, Liquidator or Mortgagee in possession of the business of the Buyer, ownership of any Goods for which the Future Corporation has not been paid will immediately revert to the Future Corporation notwithstanding that the due date for payment may not have elapsed. Future Corporation is hereby granted a license, to the extent permitted by law and on giving any notice required by law, to enter such premises for the purpose of repossessing the Goods and upon the re-taking of possession Future Corporation shall have title to such Goods.
3.1.1 RISK OF LOSS AND INSURANCE: You shall bear all risks of loss or damage to Goods from any cause from date of delivery to you and you shall keep the Goods insured against all risks of loss or damage from every cause whatsoever during the term of this Agreement or until the Goods are paid in full for not less than the full replacement value thereof.
3.1.2 SECURITY INTEREST: On any sales or grant of a nonexclusive License, you hereby grant to Future Corporation a priority or equitable lien, purchase money security interest and/or chattel mortgage in the Goods and in any accounts receivable or cash from resale thereof until full payment is made to Future Corporation for the Goods purchased or Software Licensed. On request of Future Corporation, you agree to file any financing statements or other appropriate document with all applicable governmental authorities to assure the validity, priority, and enforceability of Future Corporation’s lien.
3.1.3 MULTIPLE SOFTWARE LICENSES: Where you hold two (2) or more Future Corporation Software Licenses, irrespective of where purchased, you hereby acknowledge and agree with Future Corporation and its Authorised Parties that each Software License is separate and remains separately subject to the Software License Agreement. Where an amount payable in respect of a Software License is unpaid, any suspension, termination or other License-level action must be proportionate and confined to the Software License to which the unpaid amount relates (the “Affected License”), in accordance with section 2.3.5 of the Software License Agreement. Non-payment of, or breach affecting, one Software License does not of itself authorise the suspension or termination of any other Software License. Only Future Corporation, as the Licensor under the Software License Agreement, may exercise a suspension or termination power in respect of a Software License, and only to the extent provided by that Agreement. Nothing in this section restricts Future Corporation from recovering any amount validly owing to it, from enforcing the payment obligations relating to the affected transaction, from pursuing debt recovery, or from exercising any other right available to it that does not contradict the Software License Agreement. Any action under this section is subject to any notice or cure requirement imposed by applicable law and to any right, guarantee or remedy you have that cannot lawfully be excluded, restricted or modified under the laws applicable to you in your jurisdiction (including any applicable unfair contract terms, small business or consumer protection laws, and including the Australian Consumer Law).
3.2 TAXES: All prices, fees and charges listed herein are exclusive of, and you shall pay, applicable goods and services, sales, use, service, value added or like taxes, unless you have provided Future Corporation with an appropriate exemption certificate for the delivery destination acceptable to the applicable taxing authorities.
3.3 CUSTOM-MADE GOODS AND SOFTWARE
3.3.1 Custom-Made Goods: As to any Goods which are made to order (custom-made), you assume full responsibility for the specifications of the Goods, including specifications suggested by Future Corporation and accepted by you, and for their suitability for the use to which they are to be applied. You acknowledge and agree to pay in full all fees and charges incurred as set forth in section 3.3.3 (below) to Future Corporation.
3.3.2 Custom-Made Software: As to any order or request by you to modify, alter or otherwise change the Software (“CustomWare”), you assume full responsibility for the specifications of such CustomWare, including specifications suggested by Future Corporation and accepted by you, and for their suitability for the use to which they are to be applied. You acknowledge and agree to pay in full all fees and charges incurred as set forth in section 3.3.3 (below) to Future Corporation.
3.3.3 Fees and Charges: You hereby acknowledge and agree to compensate Future Corporation all its fees and charges including but not limited to any materials, base hourly rate (USD$660 per hour, per developer or part thereof), third party expenses and shipping charges for the carrying out of the work as requested and/or ordered by you pursuant to sections 3.3.1 and 3.3.2 (above).
3.4 PRICES
3.4.1 MSRP or RRP: Unless expressly stated otherwise in writing by Future Corporation, all prices listed or displayed at: (i) Future Corporation’s Internet Sites and/or listed or displayed in Future Corporation: (ii) Catalogues, (iii) Brochures, (iv) Price Lists and any and all related Marketing Materials (referred collectively herein as “Price Materials”) are stated in United States Dollars (“USD$”) and the prices offered are valid for a period of thirty (30) days from the date of Future Corporation’s Offer.
3.4.1.1 Special Offers, Payment Options and Discounts: You acknowledge and agree with Future Corporation that Future Corporation and its Authorised Parties reserve the right to refuse combining with each other, any and all: (i) special offers; or (ii) one-off offers; and/or (iii) (a) discounts and/or (b) special discounts; or (c) promotional discounts for the Goods, and shall not be obliged or required by you, another or third party to accept (i) pay by Instalments; or (ii) pay by subscription, which you further agree any acceptance thereof is at the absolute discretion of Future Corporation and its Authorised Parties.
3.4.1.2 Coupon, Promotional Codes and Vouchers: You acknowledge and agree with Future Corporation and its Authorised Parties may at their absolute discretion provide a numeric or alphanumeric code as a discount from MSRP for a specified product or products (hereafter “coupon code”) and that a coupon code must (i) be a valid coupon code issued only by Future Corporation, and (ii) is valid for a limited time only, and (iii) must be entered at the time of purchase on our website, and (iv) is not subject to, and cannot be applied retrospectively to any past purchase made by you, and (v) each coupon code can be used only once, unless otherwise specified, and (vi) each coupon code applies only to qualifying items as specified in the offer, and (vii) the promotion is subject to all restrictions set forth in the offer, and (viii) the coupon code is not transferrable and may not be resold, and (ix) if you return items purchased using a coupon code as permitted herein, we will subtract the value of the coupon code from your return credit, and (x) coupon codes may not be combined with other offers, and (xi) there is a limit of one (1) coupon code per customer. If you violate any of the terms and conditions, the promotion will be invalid, and the coupon code discount will not apply.
3.4.2 Special Quotes and Trade Orders: All individual and/or non MSRP/RRP quotations including but not limited to emails, facsimiles, written and verbal offers are stated in USD$ and shall expire thirty (30) days from date of issuance, unless otherwise set forth on the quotation or agreed in writing by an authorised Future Corporation supervisor or manager.
3.4.3 Pricing and Information Disclaimer: All pricing is subject to change. For all prices, products and offers, Future Corporation reserves the right to make adjustments due to changing market conditions, CPI inflation, product discontinuation, manufacturer price changes, errors in advertisements and other extenuating circumstances. While Future Corporation uses reasonable efforts to include accurate and up-to-date information, Future Corporation makes no warranties or representations as to the accuracy of its Price Materials. Future Corporation assumes no liability or responsibility for any errors or omissions in the content of its Price Materials.
3.4.4 Support-Services Charges: You hereby acknowledge and agree to compensate Future Corporation at the rate of USD$330 per hour, per incident or part thereof, for Future Corporation providing any in-house, telephone or online support for any 3rd party software, computer hardware, cutting or printing device, machine or any related equipment that (i) is not functioning correctly or as it ordinarily should, or (ii) is faulty, or (iii) is misconfigured, or (iv) is incapable of working with the Software, or (v) is subject to malware, a virus, a Trojan or otherwise malicious software or firmware; for or on your behalf;
3.5 PAYMENT
3.5.1 Casual Retail Sales: Payments shall be made in full by you prior to delivery of the Goods by cashier’s or company check/cheque, digital wallet, credit, or debit card (referred collectively herein as “credit-card”), direct deposit, electronic funds transfer (“EFT”), money order or transfer, or via wire, or any other acceptable payment method which you acknowledge is at Future Corporation’s sole discretion to either accept or refuse. Where Future Corporation quotes and/or lists prices in non USD$ (“Other Currency”) and you offer to pay with a valid credit-card and Future Corporation accepts such credit-card and offer, Future Corporation will ordinarily charge in that currency. However, Future Corporation reserves the right to calculate and process such payment to an amount equivalent to such Other Currency in AUD$ or USD$ as listed by and at https://www.xe.com. All other payment methods unless agreed to in writing by Future Corporation prior to payment must be to an equivalent amount in USD$ as listed by and at https://www.xe.com on the same day of payment.
3.5.2 Credit Sales: If Future Corporation approves your credit application for credit terms, payment shall be due no later than 30 days from the date of Future Corporation’s invoice. All sums not paid when due shall accrue interest daily at the lesser of a monthly rate of 1.5% or the highest rate permissible by law on the unpaid balance until paid in full.
3.5.3 Instalment Sales: Future Corporation and its Authorised Parties may in their absolute discretion permit you to pay for certain Future Corporation Software Licenses in Instalments until such time as the Software License is paid in full, in lieu of paying upfront, as set out in Future Corporation’s Price Materials subject to the terms and conditions as set forth below (collectively “Instalment Software”). If you apply to pay for a Software License by Instalments and Future Corporation accepts your application, and except as expressly limited by applicable law, you hereby agree and warrant that: (i) your purchase of Instalment Software forms an irrevocable and binding agreement that is non-cancellable during the Instalment period, or until the Software License is paid in full (whichever is the earlier); and (ii) installation, use or usefulness thereof and/or the activation (unlocking) of the Software shall not be a condition precedent of the obligations created herein; and (iii) Instalment Software is a payment method for the Software License to be paid in Instalments over an agreed period of time, including any and all related charges or fees that equals the whole amount otherwise payable for the Software License when all Instalments have been paid to Future Corporation; and (iv) you acknowledge and agree to be bound by all those terms applicable to you and/or the legal entity that obtained the software and on whose behalf it is used under the Software License Agreement and in particular but not limited to sections 6.3, 6.4 and 6.5 of that Agreement, and section 3.5.3.1 herein, pursuant to such Instalment Software; and (v) pursuant to this agreement you will provide identification documents and/or numbers and dates, contact telephone number(s) and other relevant details thereof, as set out in the application document or online form as provided by Future Corporation and its Authorised Parties; and (vi) you will provide the necessary details of a valid credit-card that you certify is lawfully issued by a credit-card provider to you that is a type of credit-card accepted by Future Corporation and its Authorised Parties (as set out in the application document) and that you are authorised by law to use and bind such credit-card to this and for the full term of this Agreement; and (vii) you agree to be responsible for any bank fees or charges, credit-card provider fees or charges, costs or conversion charges, and all other charges that may apply as a result of foreign exchange rates, and/or international or domestic processing fees and charges incurred as a result of making your Instalment payments; and (viii) Future Corporation and its Authorised Parties may at their discretion (a) round the Instalment Amount up or down to the nearest whole dollar and (b) on reasonable prior notice to you, make a reasonable administrative adjustment to the Instalment due date (hereafter “due day”) of each subsequent month after the initial Instalment payment (e.g. if your application is approved on the “x” day of the month Future Corporation and its Authorised Parties may reset all future payments to the 1st day of each month for the remainder thereafter of the Agreement). Any such adjustment must not increase the total amount payable by you for the Instalment Software, must not accelerate your overall payment obligation, and is subject to applicable law; and (ix) you shall at all times keep the credit facility associated with your credit-card subject to this Agreement in good standing and with sufficient credit to meet your obligation under this Agreement when it falls due each month of the Agreed term until the Agreement is concluded; and (x) you acknowledge and agree that Future Corporation may retain payment and transaction information necessary to administer the Instalment Software, including payment method and type, transaction status, invoice details and payment-processor transaction references, but your credit-card and other payment credentials are held and processed by external payment providers and financial institutions in accordance with our Privacy Statement; and (xi) any accidental, mistaken and/or unintentional charge or overcharge made against your credit card by Future Corporation and/or its bank will be promptly refunded to the credit card account in full or, where you agree, credited against the following month (or months) payment or payments, and you shall advise Future Corporation in writing of any such charge within thirty (30) days. Nothing in this paragraph excludes, restricts or modifies any right, guarantee or remedy you have that cannot lawfully be excluded, restricted or modified under the laws applicable to you in your jurisdiction (including any applicable unfair contract terms, small business or consumer protection laws, and including the Australian Consumer Law); and (xii) any suspension, reinstatement or termination of the Software License for non-payment of an Instalment is governed exclusively by section 6.3 of the Software License Agreement and any other applicable provisions of that Agreement, including its fourteen (14) day uncured-default termination framework, any notice or cure requirement imposed by applicable law, and the restriction of any License-level action to the Affected License. Nothing in this paragraph waives, suspends or cancels any amount validly accrued and payable under these Terms, restricts Future Corporation from recovering an amount validly owing to it or pursuing other transaction-level remedies consistently with applicable law and the Software License Agreement, or of itself entitles you to a refund of amounts previously validly paid, except to the extent required by applicable law; and (xiii) pursuant to this Agreement you acknowledge that Future Corporation IS NOT a Financial Services Provider and the Instalment Scheme is not a credit line or revolving credit facility and that Future Corporation IS NOT providing any financial advice or recommendation or any financial service or product to you.
3.5.3.1 DIRECTORS GUARANTEE: PURSUANT TO SECTION 3.5.3 ABOVE AND WHERE THE SOFTWARE HAS BEEN LICENSED AS INSTALMENT SOFTWARE BY A LEGAL ENTITY OTHER THAN A NATURAL PERSON INCLUDING BUT NOT LIMITED TO A PRIVATE OR PUBLICLY LISTED COMPANY, CORPORATION AND/OR BUSINESS MANAGED AND/OR OPERATED BY DIRECTORS, MEMBERS AND/OR MANAGERS (HEREAFTER “THE COMPANY”) EACH DIRECTOR, MEMBER OR MANAGER THEREOF IRREVOCABLY AND UNCONDITIONALLY AGREES TO PERSONALLY GUARANTEE THE PERFORMANCE OF THE INSTALMENT SOFTWARE AGREEMENT BY THE COMPANY AND ALL PRESENT AND FUTURE PAYMENT OBLIGATIONS OF THE COMPANY PURSUANT TO THE AGREEMENT AS VARIED FROM TIME TO TIME IN ACCORDANCE WITH THESE TERMS. NOTHING IN THIS SECTION EXCLUDES, RESTRICTS OR MODIFIES ANY RIGHT, GUARANTEE OR REMEDY A GUARANTOR HAS THAT CANNOT LAWFULLY BE EXCLUDED, RESTRICTED OR MODIFIED UNDER THE LAWS APPLICABLE TO THAT GUARANTOR (INCLUDING ANY APPLICABLE UNFAIR CONTRACT TERMS, SMALL BUSINESS OR CONSUMER PROTECTION LAWS, AND INCLUDING THE AUSTRALIAN CONSUMER LAW). THE OBLIGATIONS OF EACH DIRECTOR, MEMBER OR MANAGER OF GUARANTEEING THE DEBTS UNDER THIS GUARANTEE ARE JOINT AND SEVERAL AND ARE CONTINUING OBLIGATIONS UNTIL ONLY SUCH TIME AS THE INSTALMENT SOFTWARE IS PAID IN FULL AND NO MONEYS REMAIN OUTSTANDING TO FUTURE CORPORATION BY THE COMPANY. THIS GUARANTEE IS GIVEN BY, AND BINDS PERSONALLY, EACH DIRECTOR, MEMBER OR MANAGER WHO EXPRESSLY ACCEPTS IT IN HIS OR HER OWN PERSONAL CAPACITY, WHETHER BY SIGNING THIS GUARANTEE, BY SEPARATELY INDICATING ACCEPTANCE OF THIS SECTION 3.5.3.1 IN THE INSTALMENT APPLICATION, CHECKOUT OR APPROVAL PROCESS, OR BY OTHER EXPRESS PERSONAL ACCEPTANCE. ACCEPTANCE OF THESE TERMS BY THE COMPANY ALONE DOES NOT OF ITSELF BIND ANY INDIVIDUAL PERSONALLY UNDER THIS SECTION 3.5.3.1. EACH PERSON WHO SO ACCEPTS WARRANTS THAT HE OR SHE IS A DIRECTOR, MEMBER OR MANAGER OF THE COMPANY AND HAS FULL CAPACITY AND AUTHORITY TO GIVE THIS GUARANTEE IN HIS OR HER PERSONAL CAPACITY.
3.5.3.2 INSTALMENT SOFTWARE UPGRADES: Pursuant to section 3.5.3 above and where you have requested to upgrade your existing Instalment Software License to a more recent Software License (“Upgrade”) notwithstanding the payment method, and such request has been accepted by Future Corporation, its Authorised Parties and/or an Authorised Dealer, you hereby acknowledge and agree with Future Corporation that all current and future payments for your existing Instalment Software shall remain payable in full under the terms of the Agreement, only unless: (i) any and all current and outstanding amounts are paid in full; or, (ii) the Instalment amount and/or the frequency of Instalment payments are modified and/or incorporated into a replacement Instalment Software Agreement under the terms and conditions set out by Future Corporation which shall be in writing, and in Future Corporation’s absolute discretion.
3.5.4 Subscription Sales: Future Corporation and its Authorised Parties may, but are under no obligation to allow you to License certain Future Corporation Software Licenses on a Subscription basis, payable in advance, as set out in Future Corporation’s Price Materials subject to the terms and conditions as set forth below (collectively “Subscription Software”). If you elect to License the Software on a Subscription basis and except as expressly limited by applicable law, you agree that: (i) your rights to use the Software are limited to the Subscription period; and, (ii) Subscription software is subject to all the terms and conditions of the Software License Agreement; and, (iii) after the termination of your Subscription the Software will cease to operate. You hereby acknowledge and agree with Future Corporation and its Authorised Parties that Subscription Software shall automatically recommence for the same period at the conclusion of each Subscription period (roll-over) unless (i) cancelled by you or Future Corporation in writing; and, (ii) if cancelled by you, you shall: (a) submit the Subscription cancellation form provided by Future Corporation at the product’s website, or give written notice of cancellation to Future Corporation by any other reasonable means; and, (b) where physical media, a hardware security device or other associated materials were supplied to you, obtain a return authorisation (RA) number from Future Corporation and return those materials to Future Corporation or the place of purchase, and obtain a receipt for such return as evidence of such termination of your Subscription Software; and, (c) uninstall and where applicable deactivate and/or deregister the Software; and (d) do so in no less than fourteen (14) days from the next payment due date. Future Corporation will not refuse or delay a cancellation on the ground that a step in this paragraph is not applicable to your Subscription. If you apply to pay your License by Subscription, and except as expressly limited by applicable law, you agree that: (i) you will provide identification documents and/or numbers and dates, contact telephone number(s) and other relevant details thereof, as set out in the application document or online form as provided by Future Corporation and its Authorised Parties; and (ii) you will provide the necessary details of a valid credit-card that you certify is lawfully issued by a credit-card provider to you that is a type of credit-card accepted by Future Corporation and its Authorised Parties (as set out in the application document) and that you are authorised by law to use and bind such credit-card to this and for the full term of this Agreement; and (iii) the credit-card shall remain current for Subscription period; and (iv) Future Corporation may arrange for an external payment provider or financial institution to process payment from your credit-card (“Subscription Instalment”) in an amount (a) equal to the Subscription fee of the Software as listed at the Software’s Internet site and/or published by Future Corporation in its Price Materials from time to time, provided that any increase in the Subscription fee applying to a renewed or continuing Subscription applies prospectively only, is notified to you a reasonable time before it takes effect, and gives you a practical opportunity to cancel the Subscription before you are charged the increased amount, subject to applicable law; and, (b) you agree to be responsible for any bank fees or charges, credit-card provider fees or charges, costs or conversion charges, and all other charges that may apply as a result of foreign exchange rates, and/or international or domestic processing fees and charges incurred as a result of making your Subscription Instalment; and (v) Future Corporation and its Authorised Parties may (a) round the Subscription fee up or down to the nearest whole dollar and, on reasonable prior notice to you, make a reasonable administrative adjustment to the billing date of each subsequent month after the initial payment (e.g. if your application is approved on the “x” day of the month Future Corporation and its Authorised Parties may reset all future payments to the 1st day of each month for the remainder thereafter of the Agreement). Any such adjustment must not increase the total amount payable by you for the Subscription period, must not accelerate your overall payment obligation, and is subject to applicable law; and (vi) you shall at all times keep the credit facility associated with your credit-card subject to this Agreement in good standing and with sufficient credit to meet your obligation under this Agreement when it falls due each month of the Subscription period until the Agreement is concluded; and (vii) you acknowledge and agree that Future Corporation may retain payment and transaction information necessary to administer the Subscription, including payment method and type, transaction status, invoice details and payment-processor transaction references, but your credit-card and other payment credentials are held and processed by external payment providers and financial institutions in accordance with our Privacy Statement; and (viii) Future Corporation reserves the right to indefinitely suspend the Software from operating on your computer or computers after fourteen (14) days for non and/or delayed payment of a Subscription Instalment until such time that any outstanding moneys pursuant to this section are paid in full by you and you hereby acknowledge and agree with Future Corporation that any suspension of the Software’s operation under this section does not waive, suspend or cancel any of your obligations under these Terms and Conditions of Sale herein, or the Software License Agreement; and (ix) pursuant to this Agreement you acknowledge that Future Corporation IS NOT a Financial Services Provider and that the Subscription is not a loan, credit line or revolving credit facility and that Future Corporation IS NOT providing finance or any financial advice or recommendation or any financial service or product to you, only a choice of licensing and related payment method, that is at Future Corporation’s, its Authorised Parties’ absolute discretion to provide to you, your nominee or third party; and (x) you acknowledge and agree to be bound by all those terms applicable to you and/or the legal entity that obtained the software and on whose behalf it is used under the Software License Agreement and in particular but not limited to sections 6.3, 6.4 and 6.5 pursuant to such Subscription Software.
3.5.5 3rd Party Fees and Charges: Notwithstanding any payment method described herein, you agree to be responsible for any bank fees or charges, credit-card provider fees or charges, costs or conversion charges, and all other charges that may apply as a result of foreign exchange rates, and/or international or domestic processing fees and charges incurred as a result of Future Corporation accepting and processing your payment. Future Corporation reserves the right to (i) process your payment in your local currency as listed or quoted by Future Corporation and (ii) reject or refuse any non USD$ payment regardless of payment method or type.
3.5.6 Foreign Exchange Losses: Future Corporation shall not be held responsible or liable for any foreign exchange movements which may occur during the period of a sales transaction with you, nor shall you claim any losses incurred as a result of such foreign exchange movements. For example, where a non US credit card is provided by you and payment is taken by Future Corporation in USD$, and is refunded in USD$ at a later date and during that period the USD$ loses value against the other currency, and consequently, the refund results in your net loss, Future Corporation shall not be held liable or responsible to refund or make good any such loss to you, another or third party under any circumstances.
3.5.7 Cash Back or Cashback Offers: Where Future Corporation offers cash or other pecuniary benefit to you when purchasing Goods from Future Corporation and its Authorised Parties (Hereafter “Cash Back”) you hereby acknowledge and agree with Future Corporation that (i) All Cash Back claims must be registered online. All supporting documents should be sent within fourteen (14) days of purchase. Applications sent after this period will not be accepted. No extensions will be given except where required by applicable law; and (ii) Once your claim has been received and accepted by Future Corporation, please allow up to eight (8) weeks for the delivery of your check/cheque by ordinary mail; and (iii) A print out of the completed online form, bearing a system generated Cash Back claim number must be mailed in, along with a legible copy of the invoice or receipt from the place of purchase, the physical barcode label and if applicable the Product Serial Number (“PSN”); and (iv) Delivery dockets, hand written store receipts and photocopies of the barcode will not be accepted. No responsibility is taken for late, lost or misdirected mail; and (v) The Cash Back Offer is limited to ten (10) Cash Back claims per customer for each product in any given twelve (12) month period; and (vi) A single PSN can be used for ONE claim ONLY. A claim will not be accepted if the same PSN has been used on another claim; and (vii) The purchase date is determined by the date of the invoice or receipt issued by the place of purchase submitted by you with the claim; and (viii) Future Corporation reserves the right to refuse any claim if the product purchased is returned for any reasons; and (ix) The Cash Back Offer is not available for products sold in conjunction with any other special offer or promotional product bundle; and (x) All claims are subject to verification by Future Corporation and Future Corporation reserves the right to reject any claim which does not comply with these terms and conditions; and (xi) Employees of Future Corporation and its Authorised Parties, Resellers, Distributors and Agencies associated with this Cash Back offer are not eligible for the Cash Back offer; and (xii) any further terms and conditions published under the Cash Back offer.
3.6 RETURNS, CANCELLATIONS AND REFUNDS
3.6.1 Software – Returns: The voluntary fourteen (14) day money back guarantee for the Software is strictly subject to paragraph III. of the Software License Agreement. Where the Software License was purchased directly from Future Corporation, that voluntary guarantee is given by, and any refund under it is payable by, Future Corporation. Where the Software License was purchased from an Authorised Dealer or other authorised seller, that 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 Future Corporation expressly agrees to administer the refund on that seller’s behalf. Nothing in this section makes Future Corporation responsible for refunding any amount paid to an independent seller, except to the extent required by applicable law. No return will be accepted by Future Corporation, its Authorised Parties or the authorised seller under this voluntary guarantee after the fourteen (14) day period has expired. It is your responsibility to satisfy yourself as to the suitability of the Software for your purposes. Any failure to do so will not give rise to an extension or recalculating of time from the purchase date. Nothing in this section limits any right or remedy available to you under applicable law, including the Australian Consumer Law.
3.6.1.1 Future Corporation Instalment Software – Non-Cancellable: Payments for Future Corporation Instalment Software ARE NOT subject to cancellation by the Licensee or their nominee, except as required by the laws applicable to you in your jurisdiction or by any rights you have that cannot lawfully be excluded (including the Australian Consumer Law). Notwithstanding suspension or termination under section 3.5.3 herein and/or termination under sections 3.7.2 or 6.3 of the Software License Agreement you hereby acknowledge and agree with Future Corporation and its Authorised Parties that where you have applied and been granted a Software License payable by Instalments that (i) all payments shall be paid by the date each payment falls due; and (ii) your obligation to pay the whole amount for the Software License including any fees and charges is binding and, except to the extent of any rights you have that cannot lawfully be excluded under the laws applicable to you in your jurisdiction, may not be waived by you; and (iii) failure to meet your obligations under this section and section 3.5.3 herein may result in your debt being referred to a collection agency and/or legal action to recover any outstanding moneys, and any default being reported in accordance with applicable credit-reporting law.
3.6.1.2 Suspended Software License: You hereby acknowledge and agree with Future Corporation and its Authorised Parties that where a Software License, including but not limited to Instalment or Subscription software, has been lawfully suspended by Future Corporation for non-payment of an amount payable in respect of that Software License, you are NOT entitled to, and cannot make, any claim for compensation, refund, prorated quantum, offset or loss howsoever incurred during the suspended period in respect of that Affected License, and any losses incurred by you during that period shall be entirely at your own risk and expense. Any such suspension must be confined to the Affected License in accordance with section 2.3.5 of the Software License Agreement. This section is subject to mandatory applicable law and to any right, guarantee or remedy you have that cannot lawfully be excluded, restricted or modified.
3.6.2 Future Corporation Hardware and 3rd Party Software: You may return unopened/unused Hardware or 3rd Party Software within thirty (30) days of the Delivery Date. You shall pay a fifteen percent (15%) restocking charge on any unopened/unused Hardware or 3rd Party Software returned to Future Corporation. No returns will be accepted after the thirty (30) day period has expired. Where special equipment or services are involved, you shall be responsible for all related work in progress; however, Future Corporation shall take reasonable steps to mitigate damages immediately upon receipt of a written cancellation notice from you. A return authorisation number (“RA”) must be obtained from Future Corporation for return of any Hardware or 3rd Party Software. Future Corporation may terminate any order if any representations made by you to Future Corporation are false or misleading. Changes to orders shall not be binding upon nor be put into effect by Future Corporation unless confirmed in writing by Future Corporation’s authorised representative.
3.6.3 Custom-Made Goods and Software: Neither Custom-Made Goods nor CustomWare pursuant to sections 3.3.1 and 3.3.2 (above) can be cancelled or returned for any refund since these goods have been requested and/or ordered and subsequently developed and created exclusively for you.
3.6.4 Credit Card Chargeback: An unauthorised or inappropriate chargeback by credit card customers is costly to process and respond to and may subject the person making the chargeback to civil and criminal liability. If you wish to return and obtain a refund for a Software product, see paragraph III. of the Software License Agreement and section 3.6.1 (above). If you wish to return a Future Corporation Hardware or 3rd Party Software product, see the Returns and Refunds section to accomplish a return (above), if qualified. Any unauthorised, inappropriate, or otherwise unlawful chargeback will be automatically rejected and contested by Future Corporation and will be subject to (i) a USD$50 administration fee charged to your credit card, being a genuine pre-estimate of the reasonable cost to Future Corporation of processing the chargeback; and (ii) the amount of the disputed transaction where the chargeback is reversed or found to be unauthorised or improper. This section applies only to an unauthorised or improper chargeback and does not apply where you exercise a genuine right to a refund or chargeback (including under the laws applicable to you in your jurisdiction, such as the Australian Consumer Law, or for Goods not supplied or not of acceptable quality). By ordering from Future Corporation, you agree to the Terms and Conditions of Sale herein and give Future Corporation the authority to charge your credit card the aforementioned service fee to cover the cost of processing any chargeback you issue. If you subsequently chargeback any or all of those fees and charges, your account may be forwarded to a collection agency for collection and any default may be reported in accordance with applicable credit-reporting law. Any chargeback for a Future Corporation Software product may result in (i) suspension or cancellation of the License or Subscription to which the disputed transaction relates; and/or (ii) cancellation or rejection of an uncompleted refund, or a refund in process; and/or (iii) other applicable action as set forth in the Software License Agreement; and (iv) Future Corporation reserves the right to prosecute all misuse of credit cards to the fullest extent permitted by law and to discontinue any and all communications with you.
3.6.4.1 Declined Credit Card Transactions: You hereby acknowledge and agree with Future Corporation and its Authorised Parties that should your credit card be declined by the card issuer for any reason when an instalment or subscription payment is processed on the day it falls due, that (i) a USD$15 reprocessing fee, being a genuine pre-estimate of the reasonable cost to Future Corporation of reprocessing a declined payment, will be charged to your account; and (ii) non payment of this fee and/or any outstanding moneys owing to Future Corporation may result in the temporary suspension by Future Corporation of the Software License to which the unpaid instalment or subscription payment relates, until all outstanding moneys in respect of that Software License are paid in full. Any such suspension must be confined to that Software License in accordance with section 2.3.5 of the Software License Agreement, and no other Software License is suspended or terminated by reason of that non-payment. This section does not apply where the payment was declined through no fault of yours, or where you have a right to withhold payment under applicable law, and nothing in this section excludes, restricts or modifies any right, guarantee or remedy you have that cannot lawfully be excluded, restricted or modified under the laws applicable to you in your jurisdiction (including any applicable unfair contract terms, small business or consumer protection laws, and including the Australian Consumer Law).
3.6.5 Wire Errors: Wire transfer customers should take great care in obtaining full information before wiring funds to Future Corporation. Any funds returned for wire transfers sent in error or otherwise cancelled will have a USD$100 wire transfer fee deducted. Please take the time to have all questions answered before sending a wire transfer to make sure you are ordering what you want. Before sending a wire transfer, please make sure to contact [email protected] to obtain complete instructions.
3.6.6 Dishonoured Check/Cheque: If a check/cheque you provide for payment is dishonoured for any reason by the bank or other institution on which it is drawn, you agree to pay a USD$40 service and processing fee to Future Corporation. In addition, you agree to pay any other reasonable charges imposed by any check verification company or collection agency that we may use for collection.
3.6.7 Electronic Communications: You hereby acknowledge and agree with Future Corporation and its Authorised Parties that any electronic communications including but not limited to email and/or a messenger service provided by another or 3rd party including but not limited to services provided by AOL, eBay, Gawab, Google (gmail), GMX, Hotmail, HushMail, iCloud, Mail.com, Messenger, Microsoft (Live and MSN), Outlook, Skype, Tiscali, Yahoo or Zoho shall be solely at your own risk and that Future Corporation shall be under no obligation to guarantee receipt or delivery of any electronic communications with you, nor shall Future Corporation have any obligation to contact you by any other means should any electronic communications fail even if Future Corporation or its representative is advised or becomes aware of any such or potential failure.
3.6.7.1 Electronic Communications and Spam Email: Pursuant to section 3.6.7 above Future Corporation reserves the right to temporarily or permanently block and/or refuse to accept any email messages from any email address that transmits illegitimate and/or unsolicited messages to its servers or computer systems notwithstanding any relationship the sender has or purports to have with Future Corporation (hereafter “Spam Email”), and you hereby agree that you shall indemnify and hold Future Corporation harmless from and against any and all claims, actions, suits, proceedings, costs, expenses, damages, and liabilities, including legal fees (on an attorney/solicitor and own client basis) arising out of, connected with, or resulting from Future Corporation’s refusal to accept your email and/or blocking of any email address howsoever associated with you that Future Corporation in its absolute discretion deems to be Spam Email.
3.7 ORDERS
3.7.1 Acceptance and Rejection Policy: All orders for the Goods are subject to acceptance by Future Corporation, and Future Corporation may decline to accept an order or application to purchase the Goods. Future Corporation may also cancel a transaction where it has reasonable grounds to do so. By way of example, but not limitation, the grounds on which Future Corporation may decline an order or cancel a transaction include any actual or suspected illegal or immoral activity, any fraud or suspicion thereof in commercial transactions, previous history of credit card chargeback, non-payment for goods and/or services or other financial abuse, violations of the Software Licensing terms and conditions, or any profanity, threats or other abusive behaviour directed at Future Corporation employees, contractors, agents, dealers, suppliers and/or representatives or within Future Corporation hosted user communities. Where Future Corporation cancels a transaction for which you have already paid, and the cancellation is not due to your breach or to conduct of the kind described above, Future Corporation will refund the amount you paid for that transaction. Moreover, the Software License Agreement for Future Corporation software explicitly specifies that the license terminates if the Agreement is violated. Any such termination may be automatically enforced by the Software itself, and if such termination occurs you will not, except to the extent of any rights you have that cannot lawfully be excluded under the laws applicable to you in your jurisdiction (including the Australian Consumer Law), receive a refund for any Licensing and/or Subscription fees paid. For example, if you violate the Software License Agreement by installing a single License of Future Corporation Software on multiple machines for use by multiple persons, the Software will eventually terminate itself and will revoke the Activation, and/or Customer, and/or Product and/or Serial number for that License. Nothing in this section limits any rights you have that cannot lawfully be excluded under the laws applicable to you in your jurisdiction, including any applicable unfair contract terms or consumer protection laws and the Australian Consumer Law.
3.7.2 Out of Stock: – Orders Paid by Check/Cheque, EFT, Wire or Credit Card: Items not available for immediate shipment will be shipped as they become available. Items not available at the end of 30 days will be cancelled and refunded/credited. The number of backorder days may be extended beyond 30 days with your approval. If a refund check is issued, the cancelled item can be re-entered without a handling charge if the check and cancellation notice are returned to us.
3.7.3 Out of Stock: – Orders On Credit Account: Items not available for immediate shipment will be shipped as they become available. Items not available at the end of 60 days will be cancelled. The number of backorder days may be extended beyond 60 days with your approval.
3.7.4 Embargoes: Please note that at times, Future Corporation must restrict the sale of certain Goods within specific geographic regions because of various contractual arrangements.
3.8 DELIVERY
3.8.1 Shipment by Carrier/Courier: Future Corporation shall deliver the Goods to a carrier at Future Corporation’s place of business. You shall pay (a) all applicable freight charges and fees, and (b) any import and/or Customs duties, fees, charges, taxes and/or any related or indirect costs incurred by you, and (c) insurance against loss at your option. Orders are entered as close as possible to your requested shipment date, if any. Shipment dates are scheduled after acceptance of orders and receipt of necessary documents. Claims for shipment shortage shall be deemed waived unless presented to Future Corporation in writing within fourteen (14) days of delivery and in all cases no more than twenty eight (28) days of shipment from Future Corporation’s place of business.
3.8.2 Shipment by Unregistered Post: Where you have elected to have the Goods shipped by Unregistered Post regardless of the postal carrier or postal class, packaging type or destination, Future Corporation shall not assume any responsibility or liability to you, other or third party for any delay, damage, or loss, of or to the Goods and all risk thereof shall be borne by you.
3.8.3 Download Software: Some Future Corporation and 3rd Party Software is downloaded by default (collectively in this section “Download Software”). When your Download Software order is processed you will receive either (i) email instructions for downloading your order by Internet; or (ii) be provided with an immediate link from which to obtain the Download Software; or (iii) any other method of like delivery deemed suitable by Future Corporation. Download Software files are generally large and range from 50MB to over 2GB. If your Internet connection is not reliable enough to download large files without error, please also order a Future Corporation Media Pack to receive either a CD or DVD installation media. Unless stated in writing Download Software prices do not include CD/DVD media – no CD/DVD will be sent unless you also order a Future Corporation Media Pack (if available).
3.8.4 Force Majeure: Future Corporation shall be excused for any delay or failure to perform due to any cause beyond its reasonable control, including but not limited to acts of governments, natural catastrophes, acts of you, pandemics, interruptions of transportation or inability to obtain necessary labour or materials. Future Corporation’s estimated shipping schedule shall be extended by a period of time equal to the time lost because of any excusable delay. In the event Future Corporation is unable to perform in whole or in part because of any excusable failure to perform, Future Corporation may cancel orders without liability to you.
3.8.5 Import and Export Restrictions: You must comply with all applicable export, import and Customs laws and regulations applicable to the Goods, Software and Output Files. Any export, re-export, transfer or use of the Software is also subject to the Software License Agreement, and any 3rd Party Software is subject to its applicable license terms.
3.9 ELECTRONIC COMMUNICATIONS:
3.9.1 PRIVACY AND DATA COLLECTION: You hereby acknowledge and agree to allow Future Corporation and its Authorised Parties to store payment and transaction information, such as payment method and type, transaction status, invoice details and payment-processor transaction references (your credit-card and other payment credentials being held and processed by external payment providers and financial institutions), for the purposes of any new, repeat or recurring billing; along with your contact information, including names, telephone numbers, and email addresses, in accordance with our Privacy Statement. Such information will be processed and used in connection with your Software License, our Privacy Statement, and/or our business relationship from the sale of goods and/or services to you, and may be provided to Future Corporation’s Authorised Parties, Contractors, Partners, Suppliers, and/or its Authorised Dealers for uses consistent with our Privacy Statement, including communicating with you.
3.9.2 ELECTRONIC DELIVERY OF COMMUNICATIONS: You agree and consent to receive electronically including but not limited to all communications, documents, notices, product information, links, offers and disclosures (collectively, “Communications”) that Future Corporation and its Authorised Parties provide in connection with the Software and your Future Corporation account and your use of our services.
3.9.3 HOW TO WITHDRAW YOUR CONSENT: You may withdraw your consent to receive Communications electronically by writing to us with your business and/or related details to the contact address identified in the Privacy Notice, or, for Communications issued by Future Corporation, to the contact details set out in section 9.3 of the Software License Agreement, or by clicking Unsubscribe on any electronic communication which provides such link. Please see our Privacy Statement for additional opt-out options.
3.9.4 UPDATING YOUR CONTACT INFORMATION: It is your responsibility to keep your primary email address up to date so that Future Corporation and its Authorised Parties can communicate with you electronically. You understand and agree that if Future Corporation sends you an electronic Communication, but you do not receive it because your primary email address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic Communications, Future Corporation will be deemed to have provided the Communication to you.
4. LIMITED WARRANTY
4.1 Hardware: Future Corporation Hardware Products are warranted against defects in materials and workmanship for one (1) year from the date Future Corporation ships the Hardware to you (“Delivery Date”).
4.1.1 Future Corporation and 3rd Party Software: All Future Corporation and 3rd Party Software is Licensed to you under the terms of each Software’s respective Software License Agreement for the period as set forth in such Agreement and this shall represent the limited warranty, if any, of such Software. Any voluntary warranty applicable to the Software itself is governed exclusively by that Software License Agreement, and no warranty concerning the functionality, performance, operation, quality or code of the Software is given under these Terms.
4.1.2 Hardware and Physical Media: Where Future Corporation Software is licensed to you on a physical medium supplied by Future Corporation, or is properly installed on Future Corporation Hardware Products (collectively in this section “the Hardware Goods”), the medium on which the Software is recorded will be free from defects in materials and workmanship under normal use and service for one (1) year from the date Future Corporation ships that medium or the Hardware Goods to you. This warranty applies to the Hardware Goods and the physical medium only. It does not warrant the functionality, performance, operation, quality or code of the Software itself, any voluntary warranty for which is governed exclusively by the applicable Software License Agreement as set out in section 4.1.1 above. Any replacement of the Hardware Goods will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. You must obtain a Return Authorisation (RA) number from Future Corporation before returning any Hardware Goods under warranty to Future Corporation. You shall pay expenses for shipment of repaired or replacement Goods under warranty to Future Corporation. You shall pay expenses for shipment of repaired or replacement Hardware Goods to and from Future Corporation. After examining and testing returned Hardware Goods, if Future Corporation concludes that such returned Hardware Goods is not defective, you will be notified, the Hardware Goods returned at your expense, and a charge made for examination and testing. This Limited Warranty is void if failure of the Hardware Goods has resulted from accident, abuse, misapplication, modification, improper calibration by you, you supplied third party software not intended for use with the applicable Future Corporation Software, utilisation of an improper hardware or software key or unauthorised maintenance or repair.
4.2 YOUR REMEDIES: Excluding Future Corporation and 3rd Party Software where any Limited Warranty, if any, is governed exclusively by such Software’s respective Software License Agreement. Future Corporation’s sole obligation (and your sole remedy) with respect to the Limited Warranty in sections 4.1 and 4.1.2 above shall be to, at Future Corporation’s absolute discretion, return the fees paid or repair/replace any defective Goods, provided that Future Corporation receives written notice of such defects during the applicable warranty period. This section does not provide a remedy in respect of the functionality, performance, operation, quality or code of the Software, which is governed exclusively by the applicable Software License Agreement. To the extent permitted by law, you may not bring an action to enforce its remedies under the foregoing Limited Warranty more than one (1) year after the accrual of such cause of action.
4.3 NO OTHER WARRANTIES: TO THE EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS EXPRESSLY SET FORTH ABOVE AND/OR GOVERNED EXCLUSIVELY BY THE FUTURE CORPORATION SOFTWARE LICENSE AGREEMENT THE GOODS INCLUDING BUT NOT LIMITED TO CUSTOM-MADE GOODS AND/OR SOFTWARE ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND, AND NO OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED ARE MADE WITH RESPECT TO THE GOODS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY OTHER WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE, CUSTOM OR COURSE OF DEALING. FUTURE CORPORATION DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULTS OF THE USE OF THE GOODS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE AND DOES NOT WARRANT THAT THE OPERATION OF THE GOODS WILL BE UNINTERRUPTED OR ERROR FREE. FUTURE CORPORATION EXPRESSLY DISCLAIMS ANY WARRANTIES NOT STATED HEREIN.
4.3.1 AUSTRALIAN CONSUMER RIGHTS NOT AFFECTED: 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. ANY VOLUNTARY WARRANTY APPLICABLE TO THE SOFTWARE IS GOVERNED EXCLUSIVELY BY THE SOFTWARE LICENSE AGREEMENT, INCLUDING THE IDENTITY OF THE WARRANTOR, THE WARRANTY PERIOD, THE CLAIM PROCEDURE, CLAIM EXPENSES AND THE APPLICABLE STATUTORY SAVINGS. NOTHING IN THIS SECTION CREATES OR EXTENDS A SEPARATE SOFTWARE WARRANTY UNDER THESE TERMS. THE WARRANTOR OF THE HARDWARE WARRANTY IN SECTION 4.1 AND OF THE HARDWARE AND PHYSICAL MEDIA WARRANTY IN SECTION 4.1.2 IS A FUTURE CORPORATION PTY LTD, ACN 078 538 002, OF UNIT 1.19 999 NEPEAN HWY, MOORABBIN VIC 3189, AUSTRALIA; TELEPHONE +61 3 9583 2331; EMAIL [email protected]. A CLAIM UNDER A WARRANTY IN THIS SECTION 4 MAY BE MADE BY CONTACTING THE WARRANTOR AT THOSE DETAILS, OR THROUGH FUTURE SUPPORT, WITHIN THE APPLICABLE WARRANTY PERIOD, WITH PROOF OF PURCHASE AND DETAILS OF THE DEFECT. YOU BEAR THE EXPENSE OF MAKING A CLAIM, INCLUDING THE COST OF RETURNING GOODS TO THE WARRANTOR, EXCEPT THAT WHERE THE GOODS ARE FOUND TO BE DEFECTIVE THE WARRANTOR WILL REIMBURSE YOUR REASONABLE EXPENSES OF MAKING THE CLAIM. TO CLAIM THOSE EXPENSES, SUBMIT REASONABLE EVIDENCE OF THEM, INCLUDING RECEIPTS, THROUGH THE SAME WARRANTY CLAIM CHANNEL USED FOR YOUR CLAIM. THIS IS SUBJECT TO, AND EXCEPT AS OTHERWISE REQUIRED BY, APPLICABLE LAW. THE BENEFITS UNDER THIS WARRANTY ARE IN ADDITION TO OTHER RIGHTS AND REMEDIES THAT YOU MAY HAVE UNDER AUSTRALIAN CONSUMER LAW.
4.3.1.1 YOUR RESPONSIBILITY TO ACT REASONABLY: IN ADDITION TO SECTION 4.3.1 (ABOVE), WHICH IS IN NO WAY ALTERED, LIMITED OR QUALIFIED BY THIS SECTION 4.3.1.1, AND WITHOUT LIMITING ANY RIGHT, GUARANTEE OR REMEDY THAT CANNOT LAWFULLY BE EXCLUDED, RESTRICTED OR MODIFIED UNDER THE AUSTRALIAN CONSUMER LAW OR ANY OTHER APPLICABLE LAW, YOU ACKNOWLEDGE AND AGREE WITH FUTURE CORPORATION AND ITS AUTHORISED PARTIES THAT YOU SHALL TAKE ALL REASONABLE MEASURES AND/OR STEPS TO AVOID AND REDUCE DAMAGES AND/OR LOSSES WHEN USING THE SOFTWARE, BY (I) MAKING A BACK-UP COPY OF THE SOFTWARE, AND ITS COMPUTER DATA AND THE SOFTWARE’S OUTPUT FILES (YOUR WORKS), AND (II) INSTALLING MAINTENANCE AND SECURITY UPDATES MADE AVAILABLE FOR THE LICENSED VERSION WHERE REASONABLY APPROPRIATE, AND (III) TAKING REASONABLE MEASURES TO MAINTAIN YOUR COMPUTER’S OPERATING SYSTEM IN A SECURE CONFIGURATION THAT REMAINS COMPATIBLE WITH THE LICENSED VERSION, AND (IV) KEEPING YOUR COMPUTER FREE OF ANY MALICIOUS SOFTWARE, AND (V) MAINTAINING INTERNET ACCESS WHERE REASONABLY REQUIRED FOR ACTIVATION, VALIDATION, UPDATES OR SUPPORTED FUNCTIONALITY, AND (VI) MAKING YOUR LICENSES PAYMENTS ON TIME (IF APPLICABLE).
4.4 NON-AUSTRALIAN CONSUMER RIGHTS NOT AFFECTED: YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS UNDER YOUR JURISDICTION, WHICH THESE TERMS AND CONDITIONS OF SALE CANNOT CHANGE.
5. NO LIABILITY
5.1 NO LIABILITY FOR CONSEQUENTIAL DAMAGES: EXCEPT FOR FUTURE CORPORATION SOFTWARE AND THE EXCLUSIVE REMEDY SET FORTH IN SECTION 2.8.2 (CONSTRAINED BY SECTIONS 2.5.7, 2.9, AND 2.10) OF THE FUTURE CORPORATION SOFTWARE LICENSE AGREEMENT, IN NO EVENT WILL FUTURE CORPORATION, ITS AUTHORISED PARTIES, AND/OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS WHATSOEVER INCLUDING ANY SPECIAL, CONSEQUENTIAL, INDIRECT, ECONOMIC OR INCIDENTAL DAMAGES, LOST TIME, LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM BUSINESS INTERRUPTION, LOST DATA, OR TO BUSINESS AND/OR PERSONAL REPUTATION, LOSS ARISING FROM MACHINE OPERATION, FAILED OUTPUT, DAMAGED MATERIALS, HARDWARE DAMAGE, FIRE, FUMES, EXPLOSION, PERSONAL INJURY (INCLUDING DEATH) OR FAILURE TO MEET ANY DUTY OF CARE, OR CLAIMS BY A THIRD PARTY ARISING FROM THIS AGREEMENT, EVEN IF FUTURE CORPORATION, ITS AUTHORISED PARTIES, ITS SUPPLIERS AND/OR A FUTURE CORPORATION REPRESENTATIVE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. FUTURE CORPORATION’S AGGREGATE LIABILITY AND THAT OF ITS AUTHORISED PARTIES, AND/OR ITS SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THE GOODS AND/OR FEES PAID FOR A NONEXCLUSIVE LICENSE, IF ANY. THIS LIMITATION WILL APPLY EVEN IN THE EVENT OF A FUNDAMENTAL, MATERIAL OR SERIOUS BREACH OR A BREACH OF THE FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT. FUTURE CORPORATION IS ACTING ON BEHALF OF ITS AUTHORISED PARTIES, AND/OR ITS SUPPLIERS FOR THE PURPOSE OF DISCLAIMING, EXCLUDING AND LIMITING OBLIGATIONS, WARRANTIES AND LIABILITY WITH RESPECT TO THIS AGREEMENT ONLY AND FOR NO OTHER PURPOSE OR RESPECT. IF YOU ARE LOCATED OR WISH TO TAKE FUTURE CORPORATION SOFTWARE AND/OR GOODS OUTSIDE OF AUSTRALIAN JURISDICTION YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU DO SO ENTIRELY AT YOUR OWN RISK. NOTWITHSTANDING THIS AND BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SUCH LIMITATION MAY NOT APPLY TO YOU. IF THE FOREGOING LIMITATION OF LIABILITY IS NOT ENFORCEABLE BECAUSE FUTURE CORPORATION GOODS SOLD OR LICENSED TO YOU IS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL, NON-APPEALABLE JUDGMENT TO BE DEFECTIVE AND TO HAVE DIRECTLY CAUSED BODILY INJURY, DEATH, OR PROPERTY DAMAGE, IN NO EVENT SHALL FUTURE CORPORATION’S LIABILITY FOR PROPERTY DAMAGE EXCEED THE GREATER OF THE FEES PAID, IF ANY, FOR THE SPECIFIC GOODS THAT CAUSED SUCH DAMAGE. NOTHING IN THIS SECTION EXCLUDES, RESTRICTS OR MODIFIES ANY RIGHT, GUARANTEE OR REMEDY YOU HAVE THAT CANNOT LAWFULLY BE EXCLUDED, RESTRICTED OR MODIFIED UNDER THE LAWS APPLICABLE TO YOU IN YOUR JURISDICTION (INCLUDING ANY APPLICABLE UNFAIR CONTRACT TERMS, SMALL BUSINESS OR CONSUMER PROTECTION LAWS, AND INCLUDING THE AUSTRALIAN CONSUMER LAW); TO THE EXTENT OF ANY SUCH RIGHT, THIS LIMITATION APPLIES ONLY TO THE MAXIMUM EXTENT PERMITTED BY THAT LAW.
6. SOFTWARE – LIMITED INDEMNITY AGAINST INFRINGEMENT
6.1 Within Australian Jurisdiction: See section 2.11.1 of the Software License Agreement.
6.2 Outside Australian Jurisdiction: See section 2.11.2 of the Software License Agreement.
6.3 Content Files: See section 2.12 and 2.12.1 of the Software License Agreement.
6.4 Corporate Logos: See sections 2.13 and 2.13.1 of the Software License Agreement.
7. SERVICES
7.1 Limited Warranty: Future Corporation warrants that Services will be performed in a good and workmanlike manner. Except as expressly stated in the preceding sentence, Future Corporation makes no express or implied warranties with respect to the Services, including but not limited to (a) any warranty relating to third-party products or (b) any warranty concerning the results to be obtained from the Services or the results of any recommendation Future Corporation may make, including without limitation any implied warranties concerning the performance, merchantability, suitability, non-infringement or fitness for a particular purpose of any of the deliverables or of any system that may result from the implementation of any recommendation Future Corporation may provide. In order to receive warranty remedies, deficiencies in the Services must be reported to Future Corporation in writing within 90 days of completion of the Services. The warrantor of this warranty is A Future Corporation Pty Ltd, ACN 078 538 002, of UNIT 1.19 999 NEPEAN HWY, MOORABBIN VIC 3189, Australia; telephone +61 3 9583 2331; email [email protected]. A claim may be made by writing to the warrantor at those details, or through Future Support, within that 90 day period, with details of the deficiency and proof of purchase. If the warranty is honoured, Future Corporation will re-perform the deficient Services, subject always to any additional remedy required by applicable law. You bear the expense of making a claim, except that where the Services are found to be deficient Future Corporation will reimburse your reasonable expenses of making the claim. To claim those expenses, submit reasonable evidence of them, including receipts, through the same warranty claim channel used for your claim. This is subject to, and except as otherwise required by, applicable law. Where the Australian Consumer Law applies to your acquisition of the Services: OUR SERVICES COME WITH GUARANTEES THAT CANNOT BE EXCLUDED UNDER THE AUSTRALIAN CONSUMER LAW. FOR MAJOR FAILURES WITH THE SERVICE, YOU ARE ENTITLED: TO CANCEL YOUR SERVICE CONTRACT WITH US; AND TO A REFUND FOR THE UNUSED PORTION, OR TO COMPENSATION FOR ITS REDUCED VALUE. YOU ARE ALSO ENTITLED TO BE COMPENSATED FOR ANY OTHER REASONABLY FORESEEABLE LOSS OR DAMAGE. IF THE FAILURE DOES NOT AMOUNT TO A MAJOR FAILURE YOU ARE ENTITLED TO HAVE PROBLEMS WITH THE SERVICE RECTIFIED IN A REASONABLE TIME AND, IF THIS IS NOT DONE, TO CANCEL YOUR CONTRACT AND OBTAIN A REFUND FOR THE UNUSED PORTION OF THE CONTRACT. The benefits under this warranty are in addition to other rights and remedies that you may have under the Australian Consumer Law.
7.2 Limitation of Liability: Future Corporation is not liable for any incidental, indirect, special, or consequential damages arising out of or in connection with the Services provided by Future Corporation, including without limitation loss of use of the Software or any other software or data, including inability to achieve a particular result, even if Future Corporation has been advised of the possibility of such damages or even if the damage is the direct result of an instruction or suggestion made by Future Corporation. Except for claims that the Services caused bodily injury (including death), Future Corporation’s total liability arising out of or in connection with any event or series of connected events occurring in connection with the Services shall not exceed the amount of fees paid under the separate written agreement between you and Future Corporation. These provisions allocate the risks under the separate written agreement between you and Future Corporation. Future Corporation’s pricing reflects this allocation of risk and the limitation of liability specified herein.
7.3 High Risk Activities: You acknowledge and agree that Future Corporation has not tested or certified its Services for use in high risk applications including medical life support, nuclear power, mass and air transportation control, or any other potentially life critical uses and make no assurances that the Services are suitable for any high risk uses.
7.4 Indemnification: You accept responsibility for, and agree to indemnify and hold Future Corporation harmless from, any and all liability, damages, claims, or proceedings arising out of (a) the failure of you to obtain the appropriate license, intellectual property rights, or any other permissions required to support any Goods or Future Corporation’s performance of the Services, including but not limited to, the right to make any copies or reproductions of any of your software or (b) any inaccurate representations regarding the existence of an export license or the eligibility for export of software or other materials without a license.
8. GENERAL & TECHNICAL SUPPORT
8.1 Future Corporation Software: All Future Corporation Software is Licensed to you under the terms of the Software License Agreement for the period as set forth in such Agreement and this shall represent the only Technical Support provided, if any, for the Software.
8.2 Future Corporation Hardware and Services, and 3rd Party Software: Unless expressly stated in the Price Materials or in a separate Agreement duly signed by an authorised Future Corporation supervisor or manager Future Corporation Hardware and Services, and 3rd Party Software are in general sold or Licensed without any Technical Support.
8.3 No Harassment Policy: No member of our staff or any employee of Future Corporation is required to deal with you either face to face, over the phone, in correspondence, via tickets or email, if you are exhibiting threatening, abusive or violent behaviour. In any of these circumstances a member of staff has the right to refuse to serve or assist you. Threatening behaviour is defined as, but not limited to, threats of violence to members of staff or any other person which is, for example, sexist, racist, gendered, or homophobic, including intimidating language, swearing and/or aggressive body language. Should you continue to exhibit threatening, abusive, or violent behaviour after being asked to cease and desist, Future Corporation reserves the right to refuse serving or supporting you, either (i) temporarily or (ii) permanently in its absolute discretion.
9. GOVERNING LAW
9.1 Australia: You hereby acknowledge reading these Terms and Conditions, understanding them and agree to be bound by them. A waiver of any provision of this agreement shall not be construed as a waiver or modification of any other term hereof. With respect to all applications and orders accepted by Future Corporation in Australia, disputes arising in connection with these Terms and Conditions of Sale shall be governed by the laws of the State of Victoria which shall govern the interpretation of this Agreement and applies to claims for breach of it. Australian Commonwealth law and the laws of your state or territory may govern other claims, including claims under state consumer protection laws, unfair competition laws, and in tort. Notwithstanding this, and subject to any mandatory jurisdictional right available to you under applicable law that cannot lawfully be excluded, restricted or modified, you acknowledge and agree with Future Corporation that the parties submit to the jurisdiction of the courts of Victoria, Australia, and that any and all claims by you shall be brought in a Melbourne court of competent jurisdiction.
9.2 Outside Australia: Notwithstanding your usual location and jurisdiction you acknowledge and agree with Future Corporation, its Authorised Parties and/or its Suppliers that the interpretation of this Agreement and any and all claims brought by you for any breach of this Agreement, regardless of “conflict of laws” or “private international law” principles, shall, subject to any mandatory jurisdictional right available to you under applicable law that cannot lawfully be excluded, restricted or modified, be governed by the laws of the State of Victoria and, to the extent applicable, the laws of the Commonwealth of Australia, and be subject to the exclusive jurisdiction of the courts of Victoria, Australia.
9.3 Country-Specific Rights and Mandatory Laws: Nothing in this Agreement excludes, restricts or modifies any non-excludable right, remedy, guarantee, condition or warranty that applies to you under mandatory consumer, privacy, data protection, unfair contract, product safety or similar laws in your jurisdiction. To the extent any provision is limited by mandatory law, it shall be read down only to the minimum extent necessary and the remaining provisions shall continue to apply to the maximum extent permitted by law.
9.4 Authorised Reseller Editions: FC may also produce, license and supply Authorised Reseller Editions of the Software. FC is the Licensor of each Authorised Reseller Edition under the Software License Agreement and grants the License to use the Software directly to the end-user; the Authorised Reseller is an independent contractor, is not the Licensor, acquires no ownership of FC’s intellectual property in the Software, and has no authority to bind FC or vary this Agreement. The seller of any particular transaction is the person who sells or invoices the Goods to you, which may be FC, the Authorised Reseller or another authorised seller. These Terms apply to that transaction only where FC is the seller, consistent with paragraphs I. and II. above. Subject to applicable export laws, FC may license, distribute and supply Authorised Reseller Editions to end-users in any jurisdiction. The intellectual property in the Software remains owned by FC, and any reseller branding remains owned by the relevant Authorised Reseller.
10. TERMINATION
10.1 TERMINATION OF AGREEMENT: Except for where expressly provided in this Agreement or in the Software License Agreement if any breach of this Agreement or Software License by you continues for more than thirty (30) days after receipt of written notice of such breach by Future Corporation, Future Corporation may terminate this Agreement by written notice to you, whereupon this Agreement and all rights granted to you under it shall immediately cease. The suspension, cancellation, deactivation or termination of a Software License is governed by the Software License Agreement and may be exercised only by Future Corporation to the extent provided by that Agreement. In the event of any conflict between the terms of section 3.7.2 of the Software License Agreement and any express term therein requiring immediate termination for breach of the Software License Agreement, the express terms of such other section shall govern. You may terminate the Software License at any time by providing written notice to Future Corporation in accordance with the Software License Agreement. In the event of termination of the Software License Agreement by you and except for section III. of the Software License Agreement you (i) acknowledge that, except to the extent required by applicable law, such termination shall not entitle you, any other or third party to any refund or credit from Future Corporation and its Authorised Parties; and (ii) you shall: (a) obtain a Return Authorisation number from Future Corporation; and (b) promptly uninstall and where applicable deactivate and/or deregister the Software; and (c) where physical media or other associated materials including the hardware security device were supplied to you, return them to Future Corporation or the place of purchase; and (d) obtain a receipt for such return as evidence of such termination of this License Agreement.
11. GENERAL PROVISIONS
11.1 EXCLUSIONS: This Agreement specifically excludes (i) that body of law applicable to choice of law, and (ii) the United Nations Convention on Contracts for the International Sale of Goods and any legislation implementing such Convention, if otherwise applicable.
11.2 TRANSLATION: The English version of this Agreement will be the version used when interpreting or construing this Agreement. Any translation of these Terms and Conditions of Sale into any other languages shall be for convenience of reference only.
11.3 NO WAIVER: The waiver of, or failure to enforce, any breach or default by Future Corporation and its Authorised Parties against you herein, shall not constitute the waiver of any other or subsequent or continuing breach or default by Future Corporation, its Authorised Parties and/or its Suppliers against you.
11.4 SEVERABILITY: If and to the extent any provision of this Agreement is held illegal, invalid, uncertain, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, uncertain, or unenforceable to the extent of its illegality, invalidity, uncertainty, or unenforceability and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, uncertainty, or unenforceability of such provision in that jurisdiction shall not in any way affect the legality, validity, certainty, or enforceability of any other provision of this Agreement in any other jurisdiction.
11.5 INDEMNITY: You hereby agree that you shall indemnify and hold Future Corporation, its Authorised Parties, its Suppliers and its Authorised Dealers harmless from and against any and all claims, actions, suits, proceedings, costs, expenses, damages, and liabilities, including legal fees (on an attorney/solicitor and own client basis) arising out of, connected with, or resulting from (i) your or (ii) your colleagues, employees, agents, delegates or family members and/or any other or third party that you provide, facilitate or otherwise allow for the (a) improper use or misuse; or (b) otherwise unlawful or unconscionable use of the Goods described herein. This indemnity does not apply to the extent that the relevant claim, action, suit, proceeding, cost, expense, damage or liability is caused or contributed to by the negligence, fraud or wilful misconduct of Future Corporation, its Authorised Parties, its Suppliers or its Authorised Dealers, and does not exclude, restrict or modify any right, guarantee or remedy you have that cannot lawfully be excluded, restricted or modified under the laws applicable to you in your jurisdiction (including any applicable unfair contract terms, small business or consumer protection laws, and including the Australian Consumer Law).
11.6 ERRORS AND OMISSIONS EXCLUDED (“E&OE”): Every effort is made by Future Corporation to ensure the accuracy of any technical, factual, textual, or other typographical information made available to you in relation to the Goods. Future Corporation accepts no liability for any damage or injury arising from any errors or omissions in such technical, factual, textual, or other typographical information made available to you, other or any third party. No contract can be invalidated due to printing or clerical errors. Any descriptions of Goods are for guidance only and shall not constitute the contract “sale by description”.
11.7 COSTS, EXPENSES AND DISBURSEMENTS: All costs, expenses or disbursements incurred by Future Corporation in the maintenance of your account including debt collection agency fees and legal costs arising: (i) as a consequence of your default in observing the Terms and Conditions of Sale herein; or (ii) as a result of any of your checks/cheques being dishonoured; or by reason of Future Corporation requiring any further security to be provided; shall be payable by you upon demand.
11.8 CERTAIN TERMS SHALL SURVIVE: The provisions of sections: I., II., III., 1.2, 2.1, 2.1.1, 2.2, 2.3, 2.4, 3.1, 3.1.1, 3.1.2, 3.3.3, 3.4.4, 3.5.2, 3.5.3, 3.5.4, 3.6.1.1, 3.6.2, 3.6.3, 3.6.4, 3.8.4, 3.8.5, 4.1, 4.1.1, 4.1.2, 4.2, 4.3, 4.3.1, 5.1, 6.1, 6.2, 6.3, 6.4, 7.1, 7.2, 7.3, 7.4, 9.1, 9.2, 9.3, 9.4, 10.1, 11.3, 11.4, 11.5, 11.6, 11.7, 11.8, 11.9, and 11.10 of this Agreement will survive the termination, cancellation or rescission of this Agreement, howsoever caused, but this will not imply or create any continued right to use the Goods or any part thereof after such termination, cancellation or rescission of this Agreement.
11.9 VARIATION: Future Corporation may update or amend these Terms and Conditions of Sale from time to time. Any change applies only to purchases of Goods made after the updated Terms and Conditions of Sale are published, and does not retrospectively alter the terms applying to a purchase you have already made. The Terms and Conditions of Sale applying to your purchase are those in force and published at the time of that purchase. It is your responsibility to review the current Terms and Conditions of Sale before each purchase.
11.10 ENTIRE AGREEMENT: These Terms and Conditions of Sale (i) contain the entire agreement between you and Future Corporation with respect to the Goods ordered by you from Future Corporation, except for any Software License Agreement described and/or referred to herein to which these Terms and Conditions of Sale are appended, and except that where a person other than Future Corporation is the seller, that seller’s transaction terms govern that sale; and (ii) for any and all Goods purchased under this Agreement, these Terms and Conditions of Sale shall supersede and replace any and all prior and/or existing oral and/or written agreements, arrangements and/or understandings between the parties. This Agreement shall enure to the benefit of and is binding upon the heirs, personal representatives, successors and permitted assigns of the parties hereto. Time is of the essence of this Agreement. All covenants and obligations applicable to you shall be performed pursuant to this Agreement, including all payments to be made by you hereunder, shall survive the expiration or earlier termination of this Agreement. If more than one party is named in, or subject to this Agreement, the liability of each shall be joint and several. In the event of any conflict between such Software License Agreement, the provisions of the Software License Agreement shall govern. To avoid any doubt these Terms and Conditions of Sale may not be modified and/or appended by different terms, and/or expanded by you, another or third party without the written consent and duly signed by an executive director or C.E.O. of Future Corporation.
12. LINKS TO FUTURE CORPORATION RELATED LEGAL DOCUMENTS & SUPPORT
12.1 Software License Agreement (EULA) is located here:
https://fcl.software/legal/eula
12.2 Terms of Use is located here:
https://fcl.software/legal/terms-of-use/
12.3 Privacy Notice / Privacy Policy is located here:
https://fcl.software/legal/privacy-policy/
12.4 Future Support is located here:
13.0 CONTACT US
If you have any questions or concerns about these Terms and Conditions of Sale, please contact FC using the details below. FC endeavours to respond to all enquiries within a reasonable time.
Email: [email protected]
Phone: +61 3 9583 2331
Postal: Legal Department
A Future Corporation Pty Ltd
GPO Box 3431
Melbourne VIC 3001
AUSTRALIA
© 1988-2026 a Future Corporation Pty. Ltd. All rights reserved.