STATSEEKER END USER LICENSE AGREEMENT
DO NOT CHECK THE "Accept License" CHECKBOX AND INSTALL THE SOFTWARE UNTIL
YOU HAVE READ AND ACCEPTED THE TERMS OF THIS AGREEMENT AND WISH TO BECOME
AN AUTHORISED LICENSEE OF THE SOFTWARE.
ACCEPTANCE BINDS YOU (EITHER AN INDIVIDUAL OR AN ENTITY) TO THE TERMS OF
THIS AGREEMENT. BY CHECKING THE "Accept License" CHECKBOX AND INSTALLING
THE SOFTWARE, YOU ARE DEEMED TO HAVE ACCEPTED THE TERMS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT CHECK THE "Accept
License" CHECKBOX AND DO NOT INSTALL THE SOFTWARE.
1. DEFINITIONS
In this agreement:
(a) Statseeker means Statseeker Pty Ltd;
(b) Customer means the person or entity agreeing to this agreement
with Statseeker; and
(c) Licensed Materials means the software application, software
updates and any associated documentation.
2. GRANT OF LICENSE
(a) Upon checking the "Accept License" Checkbox Statseeker grants the
Customer a non-exclusive license to use the software as follows:
(i) install and run the Statseeker software from a single computer for
the sole purpose of examination of the performance of the Customer's
networks;
(ii) view any documentation provided by Statseeker in connection with
the software; and
(iii) make copies of the Licensed Materials for backup purposes.
(b) The Customer acknowledges and agrees that the Licensed Materials shall
only be used in a manner that complies with all applicable laws in the
jurisdictions in which the Licensed Materials are being used,
including applicable restrictions concerning copyright and other
intellectual property rights.
(c) The Customer acknowledges and agrees that other than the license
granted under this clause, nothing in this agreement is intended to
give the Customer any intellectual property rights or other rights in
any trade marks, know-how, business names, software or other material
of Statseeker.
3. UPGRADE AND SUPPORT SERVICES
If Statseeker makes the services under this clause available in a specified
12 month period and the Customer pays Statseeker the Upgrade and Support
Services Fee for that period then for that period:
(a) Statseeker must endeavor to make available to the Customer for download
over the internet or otherwise updates and upgrades to the Licensed
Material as Statseeker makes such updates or upgrades available to its
general client base; and
(b) if Statseeker receives from the Customer an e-mail notification of an
error in the Licensed Material that causes the Licensed Material to
perform in a manner other than as described by Statseeker on its
website or otherwise then Statseeker must endeavor to:
(i) commence remote investigation into the error within one business
day; and
(ii) notify the Customer within 5 business days of the status of the
investigation including any expected timing of a solution or
workaround.
4. LIMITED WARRANTY
(a) Statseeker warrants that the Licensed Materials do not infringe any
Patents, Copyrights or Trademarks or constitute misappropriation of
third party intellectual property rights. Statseeker will indemnify
the Customer against liability under any final judgment in proceedings
brought by a third party against the Customer which determine that the
Customer's use of the Licensed Materials constitutes an infringement
of the intellectual property rights of that third party. Statseeker's
liability in connection with the indemnity in this clause is limited
to the amount paid to Statseeker by the Customer under this agreement.
(b) The Customer acknowledges that the Licensed Materials are not error
free, and that they may contain errors that cause them to malfunction
or not operate in the manner the Customer may expect or as otherwise
documented.
5. LIMITED LIABILITY
(a) Statseeker is not liable for any loss or damage, however caused,
suffered by the Customer in connection with this agreement.
(b) If any legislation implies a condition or warranty into this agreement
in respect of goods or services supplied, and Statseeker's liability
for breach of that condition or warranty may not be excluded but may
be limited, then Statseeker's liability for such breach is limited to,
in the case of a supply of goods, Statseeker replacing the goods or
supplying equivalent goods or repairing the goods, or in the case of a
supply of services, Statseeker supplying the services again or paying
the cost of having the services supplied again.
6. CONFIDENTIALITY
Each party must keep confidential and not use or disclose the other party's
confidential information. The obligations of confidence do not apply to
information which is in the public domain, independently developed by the
recipient or already known to the recipient independently.
7. TERMINATION
(a) If the Customer breaches this agreement Statseeker may terminate this
agreement by written notice to the Customer if the Customer does not
remedy the breach within 7 calendar days of being given written notice
to do so.
(b) If this agreement is terminated the Customer must immediately delete
or destroy any copies of the Licensed Materials in its possession.
8. GENERAL
(a) The Customer must not assign any of its rights under this agreement
without Statseeker's prior written consent which Statseeker may
withhold in its absolute discretion.
(b) If you are an IT Solution Provider delivering outsourced monitoring
services to your customers using the Statseeker software, then you are
required to individually license each of those customers, and if
Statseeker makes Upgrade and Support Services available to you in a
specified 12 month period, then you are required to pay the Upgrade and
Support fee for each of those customers for that period.
(c) This agreement constitutes the entire agreement between the parties
regarding its subject matter.
(d) If the Customer is resident in the United States of America as of the
time of entry into this agreement then this agreement is governed by
the laws of the State of Delaware in the United States of America.
Otherwise, this agreement is governed by the laws of the State of
Queensland in the Commonwealth of Australia.
