Echoview End User License Agreement

Permission to use this software is conditional upon you (which includes you acting for and on behalf of a body corporate licensee) agreeing to the terms set out below. This software is only offered to you on the condition that you read and accept all the terms of this license and wish to become a licensee of the software.

Acceptance will bind you and all of your employees to the terms of the license. By clicking "Yes" at the bottom of this screen you will be deemed to have accepted the following terms. If you do not wish to accept the terms you must click "No" and you may not use the software. In that case please contact us to arrange a refund of any license fee paid.

1. Definitions and Interpretation

1.1 Definitions

In this Agreement the following Capitalized expressions have the following meaning:

ACL means the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Business Hours means the time between 9:00am and 5:00pm in Hobart, Tasmania, Australia on a Business Day.

Business Day means a day which is not a Saturday, Sunday or public holiday in Hobart, Tasmania, Australia.

Documentation means the documentation for and provided with the Software, including sample data, maps, color schemes, licenses, agreements, tutorials and guides.

Evaluation Materials means those parts of the Licensed Materials for which you have not acquired a license (evidenced by a license dongle) from Echoview Software Pty Ltd in exchange for valuable consideration; but excludes the Utilities.

Licensed Materials means the Software and the Documentation.

Echoview Software Pty Ltd means Echoview Software Pty Ltd (ACN 069 725 275) of 1C/38 Montpelier Retreat, Battery Point, Tasmania 7004, Australia.

Software means the attached Echoview software, modules and associated utility programs for which Echoview Software Pty Ltd has provided you a license, including all software, configuration files, settings, libraries, drivers and data provided to you by Echoview Software Pty Ltd but expressly excluding: Adobe Reader/Adobe Acrobat Reader, the HASP dongle driver and ES60adjust.

Technological Protection Measure means a device, product, technology or component (including a computer program) that is used by, with the permission of, or on behalf of, Echoview Software Pty Ltd in connection with the exercise of the copyright in the Licensed Materials, that in the normal course of its operation controls access to the Licensed Materials; and includes a license dongle.

Terms means the terms and conditions of this Agreement.

Utilities means the Echocalc GPS, Echocheck, Echocoastline, Echocolor, Echodepth, Echolog 80, Echolog 60, Echolog 500, Echosim 80, Echosim 60, Echosim 500, Echozip 60, Echoconfig 500 and Echoreport utility programs and their associated configuration files, settings, libraries, drivers, data and Documentation.

1.2 Interpretation

In this Agreement unless the context otherwise requires:

(a) Headings are for convenience only and do not affect interpretation;

(b) A reference to a party includes that person's personal representatives and permitted assigns, or being a corporation its successors and permitted assigns and any other person deriving title under that person or corporation;

(d) A reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;

(e) A reference to a thing (including a right) includes a part of that thing;

(f) Where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;

(g) Mentioning any thing after the words include, includes or including does not limit the meaning of any thing mentioned before those words;

(h) No rule of construction applies to the disadvantage of a party merely because that party was responsible for the preparation of this Agreement or any part of it;

(i) A reference to any legislation or legislative provision includes subordinate legislation, regulation or statutory instrument, made under it and any amendment to or replacement for any of them;

(j) A reference to a recital, clause, schedule or annexure is to a recital, clause, schedule or annexure of or to this Agreement; and

(k) A reference to a day, date or time is a reference to that day, date or time in Hobart, Tasmania, Australia.

2. License

2.1 Grant of license

Pursuant to this Agreement, you acquire a non-exclusive right to use the Licensed Materials strictly in accordance with and on the Terms.

2.2 License fee

(a) Other than in respect of the Evaluation Materials and the Utilities, you are not entitled to exercise any rights granted by this Agreement in respect of the Licensed Materials unless and until the license fee has been paid in full. In case of payment by check, payment will not be deemed made until the check has cleared.

(b) If you are required by law to deduct or withhold taxes from a payment to Echoview Software Pty Ltd, then you may make those deductions or withholdings (or both). However, you must give Echoview Software a receipt for each payment and you will increase your payment to Echoview Software by the amount necessary to ensure Echoview Software receives the full amount which it would have received if no deduction or withholding had been made.

(c) If paragraph (b) applies, then Echoview Software will on request by you apply for any credit or rebate to which it may be entitled in connection with the deduction or withheld tax. Echoview Software will refund to you any credit or rebate actually received by it, up to the amount of the increase made by you under paragraph (b).

2.3 License of Evaluation Materials

(a) The Evaluation Materials may only be used for the purpose of evaluating, testing or demonstrating features of the Software.

(b) Any information acquired as a result of using the Evaluation Materials must not be used, published or relied on for any purpose other than evaluating, testing or demonstrating features of the Software.

(c) In addition to any other rights and notwithstanding clause 7.2, the license to use the Evaluation Materials may be revoked by Echoview Software Pty Ltd by notice given to you in accordance with clause 8.

(d) In addition to any other rights and notwithstanding clause 7.2, the license to use the Evaluation Materials is automatically terminated if you act contrary to any provision of this clause 2.3. That termination occurs without any further action required on the part of Echoview Software Pty Ltd.

2.4 Reproduction of Documentation

You may make copies of the Documentation (including printed copies) for your use (including use by your employees) but not otherwise.

2.5 Use of Software

(a) Except in relation to the Evaluation Materials, Echoview Software Pty Ltd grants you a single-user non-exclusive license to use the Software anywhere in the world for any purpose in accordance with the Terms.

(b) For the avoidance of doubt, a single-user license:

(i) Permits you to use only one copy of the Software at any given time for a single user as installed on any compatible device; and

(ii) Does not include a license to use the Software by means of a device permitting access by multiple users (for example by installing the Software on an application server).

(c) To the extent any dealing with any license granted under this Agreement is permitted by this Agreement or law, all licenses granted under this Agreement must be dealt with together.

2.6 Use by contractors

A person with whom you have a contract for services (Contract) may exercise your rights under this Agreement as though they were you provided that:

(a) You indemnify Echoview Software Pty Ltd fully against all liabilities, damages, costs and expenses which Echoview Software Pty Ltd may incur or suffer (including legal costs on an indemnity basis) as a result of their exercise of those rights;

(b) They agree to be bound by the Terms as though they were you; and

(c) They exercise those rights only for the purpose of providing services to you and only during the course of the Contract.

2.7 Other rights

Nothing in this Agreement derogates from any rights you may have in relation to the Licensed Materials by force of law, including but not limited to under Part III Div 4A of the Copyright Act 1968 (Cth).

3. Your obligations

3.1 You undertake:

(a) To not use, copy, reproduce, translate, adapt, vary, modify, transfer, merge, disassemble, reverse engineer, reverse compile, sub-license, rent, lease or sell the Licensed Materials without the express prior consent in writing of Echoview Software Pty Ltd, except as expressly authorized by this Agreement or law;

(b) To supervise and control the use of the Licensed Materials in accordance with the Terms;

(c) To ensure your employees, sub-contractors and other agents who have authorized access to the Licensed Materials are made aware of the Terms;

(d) To not provide or otherwise make available the Licensed Materials in any form to any person other than those referred to in paragraph (c) above without the prior written consent of Echoview Software Pty Ltd;

(e) To not prevent (or permit to be prevented) the effective operation of a Technological Protection Measure; and

(f) To not use the Evaluation Materials except in accordance with clause 2.3 of this Agreement.

4. Technological Protection Measures

4.1 You must not attempt to circumvent the Technological Protection Measures.

4.2 You must use the Licensed Materials in accordance with and subject to restrictions imposed by the Technological Protection Measures.

4.3 You acknowledge and agree that any failure of the Technological Protection Measures, including failures which prevent you from exercising rights you have under this Agreement, does not constitute a breach of this Agreement.

5. Warranties

5.1 You acknowledge that the Licensed Materials and Technological Protection Measures cannot be guaranteed error free and further acknowledge the existence of any such errors shall not constitute a breach of this Agreement.

5.2 Notwithstanding clause 5.1, Echoview Software Pty Ltd warrants that the Software (except the Evaluation Materials) will perform substantially in accordance with the Documentation.

5.3 Echoview Software Pty Ltd will not be liable for any indirect or consequential damages arising out of a breach of this Agreement or arising out of defects in the Licensed Materials, howsoever caused, even if by the negligence of Echoview Software Pty Ltd.

5.4 Nothing in this Agreement excludes, restricts or modifies any condition, warranty, right or liability implied in this Agreement or protected by law to the extent that such exclusion, restriction or modification would render this Agreement or any provision of this Agreement void, illegal or unenforceable. Subject to that, any condition, warranty, right or liability which would otherwise be implied in this Agreement or protected by law is excluded.

5.5 You acknowledge that:

(a) Prior to entering into this Agreement you have been given a reasonable opportunity to examine and satisfy yourself regarding all goods and services which are the subject of this Agreement and that prior to entering into this Agreement you have availed yourself of that opportunity;

(b) At no time prior to entering into this Agreement have you relied on the skill or judgment of Echoview Software Pty Ltd and that it would be unreasonable for you to rely on any such skill or judgment; and

(c) Where any acquisition of goods under this Agreement has been made by reference to a sample or demonstration model, prior to entering into this Agreement you have been given a reasonable opportunity:

(i) To satisfy yourself that the goods correspond with the sample or demonstration model as to quality, state and condition; and

(ii) To examine the sample or demonstration model for any apparent defects

and you have availed yourself of those opportunities.

5.6 Pursuant to section 64A of the ACL:

(a) This clause 5.6 applies in respect of any of the goods or services supplied under this Agreement which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, provided that this clause 5.6 will not apply if you establish that reliance on it would not be fair and reasonable;

(b) Liability for breach of a guarantee conferred by the ACL, other than those conferred by sections 51-53 of the ACL, is limited:

(i) In the case of goods, to any one of the following as determined by Echoview Software Pty Ltd:

A The replacement of the goods or the supply of equivalent goods;

B The repair of the goods; or

C The payment of the cost of replacing the goods or of acquiring equivalent goods; or

D The payment of the cost of having the goods repaired;

(ii) In the case of services, to any one of the following as determined by Echoview Software Pty Ltd:

A The supplying of the services again; or

B The payment of the cost of having the services supplied again.

6. Copyright

6.1 You acknowledge that the Licensed Materials are the subject of copyright. You will not during or at any time after the expiry or termination of this Agreement permit any act which infringes that copyright and, without limiting the generality of the foregoing, you specifically acknowledge that you may not copy the Licensed Materials except as otherwise expressly authorized or acknowledged by this Agreement.

6.2 You indemnify Echoview Software Pty Ltd fully against all liabilities, costs and expenses which Echoview Software Pty Ltd may incur to a third party (including legal costs on an indemnity basis) as a result of your breach of the copyright provisions of this Agreement.

6.3 You acknowledge that Echoview Software Pty Ltd retains title to the Licensed Materials and that you obtain no rights other than those granted to you under this Agreement.

6.4 Some material incorporated into the Licensed Materials is the subject of copyright owned by people other than Echoview Software Pty Ltd. You may have rights in relation to that material, in addition to rights under this Agreement. Those materials, owners and rights are noted in the Documentation in the "Software Acknowledgements" section.

7. Term of license

7.1 The license granted under this Agreement commences at the earlier of:

(a) When you first click "Yes" to accept this Agreement; or

(b) When you first use the Licensed Materials.

7.2 This license is automatically terminated (with no further action required by Echoview Software Pty Ltd) in the following circumstances:

(a) If a specific time period was specified by Echoview Software Pty Ltd prior to granting a license, at the conclusion of that specific time period;

(b) If you are in breach of any term of this Agreement;

(d) If you, being a firm or partnership, are dissolved;

(e) If you, being an individual, are declared bankrupt;

(f) If you are in breach of any other contractual agreement with or license from Echoview Software Pty Ltd;

(g) If you notify Echoview Software Pty Ltd that you wish to terminate the license;

(h) If you destroy the Licensed Materials for any reason; or

(i) In relation to the Evaluation Materials, in the circumstances described in clause 2.3.

7.3 Upon termination, you must notify Echoview Software Pty Ltd and return or dispose of all the Licensed Materials and Technological Protection Measures in the manner directed by Echoview Software Pty Ltd, at your cost.

7.4 Termination pursuant to this clause 7 will not affect any rights or remedies which Echoview Software Pty Ltd may have otherwise under this Agreement or at law.

7.5 No part of any consideration you give to Echoview Software Pty Ltd is refundable on termination of this license or Agreement.

8. Notices

8.1 Method of giving notice to you

(a) In addition to any other lawful method, Echoview Software Pty Ltd may give notice to you by publishing that notice on its website at https://echoview.com/.

(b) Notice given under this clause 8.1 need not be addressed specifically to you and may instead be not addressed to anyone, or addressed to a class of persons or to persons generally.

(c) Notice given under this clause 8.1 is deemed to have been duly given and received 30 days after it is first published.

8.2 Method of giving notice to Echoview Software Pty Ltd

(a) You may give notice to Echoview Software Pty Ltd by the following methods:

(i) Hand delivery

1C/38 Montpelier Retreat, Battery Point, Tasmania 7004, Australia

(ii) Fax

+61 3 6234 1822

(iii) Email

info@echoview.com

9. Dispute resolution

9.1 Any disputes and differences between you and Echoview Software Pty Ltd in connection with this Agreement must be determined as follows:

(a) A party wishing to progress the resolution of any dispute or difference arising out of this Agreement, must give a notice to the other party setting out details of the dispute or difference (“Dispute Notice”) including adequate particulars and any relevant written material which identifies the matters the subject of the dispute or difference;

(b) Within seven days of receipt of a Dispute Notice representatives of each party undertake genuine negotiations to resolve the dispute or difference, or if the dispute or difference cannot be resolved, attempt to agree upon a process for resolving the dispute or difference;

(d) If the parties cannot resolve the dispute or difference within fourteen days, either party may seek to have the dispute resolve by any other lawful means.

9.2 Proceeding with this Agreement

Despite the existence of a dispute or difference and the giving of a Dispute Notice, each party must continue to perform its obligations under this Agreement.

10. Miscellaneous

10.1 Replacement materials

(a) Echoview Software Pty Ltd may, in its sole discretion, provide replacement copies of the Licensed Materials (or a part of the Licensed Materials) or replacement Technological Protection Measures where Echoview Software Pty Ltd is notified by you that the Licensed Materials or Technological Protection Measures are lost, damaged or otherwise cannot be used by you.

(b) Echoview Software Pty Ltd may, in its sole discretion, charge a fee for replacements provided in accordance with paragraph (a).

(c) Echoview Software Pty Ltd may, in its sole discretion, provide as replacement for Licensed Materials replaced in accordance with paragraph (a), any later version of the Licensed Materials.

10.2 Governing Law

(a) This Agreement is governed by the laws of Tasmania, Australia and the parties submit to the non-exclusive jurisdiction of the courts of Tasmania, Australia.

(b) The application of the United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention) to this Agreement (by virtue of any law relevant to this Agreement) is excluded.

10.3 Liability

An obligation or liability on the part of two or more persons binds them jointly and each of them severally.

10.4 Assignment

You must not, without the prior written consent of the Echoview Software Pty Ltd (which may be given or withheld in its absolute discretion), assign or deal with this Agreement or any of your rights and obligations under this Agreement.

10.5 Severance

If any provision of this Agreement is or becomes legally ineffective, under common law or legislation, the ineffective provision may be severed from this Agreement which otherwise continues to be valid and operational.

10.6 Waiver

The non-exercise of or delay in exercising any power or right of a party does not operate as a waiver of that power or right, nor does any single exercise of any power or right preclude any other or further exercise of it or the exercise of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.

10.7 Entire Agreement

This Agreement constitutes the sole and entire Agreement between the parties on the subject matter.

10.8 Right to promote

Unless and until you give notice to Echoview Software Pty Ltd to the contrary, you grant Echoview Software Pty Ltd the right to state publicly that you have licensed products from Echoview Software Pty Ltd and that you are a customer of Echoview Software Pty Ltd.

Echoview End User License Agreement
May 2016