Software Subscription Licence
Important: please read this document carefully before installing or using the software, because by doing so you are agreeing to these terms and conditions, and you will create a legally binding contract between you (as the purchaser of, subscriber to or user of the software) and Tall Emu Pty Ltd (Tall Emu), the developer of, and owner of all of the rights in, the software.
If you do not agree to the terms of this licence, you must not install, access or use the software. Without a licence, you are not entitled to make any use of the software.
This licence grants a user a right to access and use the Software subject to the limitations of this document.
This licence does not include any services, including configuration, trouble-shooting, setup and support. You must enter into a separate arrangement with Tall Emu or a Tall Emu partner, and pay additional fees, to receive any services.
Once purchased, the software can only be returned, for repair or replacement or refund of any fees (at Tall Emu’s election) if there is a breach of a consumer guarantee under the Australian Consumer Law.
This licence gives You certain limited rights to access and use the Software and the Documentation. You do not become an owner of or have any proprietary rights (other than the rights under this licence) in the Software or of any Intellectual Property Rights that subsist in the Software or the Documentation, which are all retained by Tall Emu.
Subject to You paying the licence fee, Tall Emu grants You a non-exclusive right to install, access and use the Software for the Subscription Period, and for the maximum number of active users included in your subscription, on the following terms and conditions:
1. The Subscription Period starts on the day You obtain or are provided with an account to access the Software (“Start Date”) and, if not terminated prior to the anniversary of the Start Date in accordance with the terms of this licence, renews on each anniversary of the Start Date for a further 12 months.
2. If you have elected not to pay the licence fee in a single annual payment for the Subscription Period, you must pay the fee in 12 equal instalments, monthly in advance, using an automatic payment we will deduct from your credit card.
3. It is Your responsibility to arrange for the installation and configuration (and any testing) of the Software.
4. You may use, authorise others to use within the limits of this licence, the Software in accordance with the Documentation, provided that any authorised users are Your employees or agents, and each authorised user is made aware of, and agrees to, the terms of this licence.
5. You must use Your best endeavours to ensure that there is no unauthorised access to or use of the Software or the Documentation.
6. You continually indemnify Tall Emu against any claim or proceeding that is made or commenced, and any liability, loss, damage or expense (including legal costs on a full indemnity basis) Tall Emu suffers or incurs arising from Your use, and the use by users authorised by You, of the Software, a breach of this licence or a negligent or unlawful act or omission by You or any user authorised by You, or on Your behalf.
7. Tall Emu does not give any warranty in relation to the Software or its performance. To the full extent permitted by law, Tall Emu disclaims all warranties, either express or implied, including any warranties of merchantability, fitness for a particular purpose or that You will be able to access or use the Software uninterrupted, fault free or at all.
8. Where any legislation such as the Australian Consumer Law implies into this licence any condition or warranty and that legislation voids or prohibits conditions in a contract excluding the application of the condition or warranty, the liability of Tall Emu for any breach of the condition or warranty is limited, at Tall Emu’s option, to each of the following:
In the case of services:
– resupplying the services.
– the cost of having the services resupplied.
In the case of goods:
– replacing the goods.
– repairing any defect in the goods.
– the cost of replacement of the goods.
– the cost of repair of any defect in the goods.
9. Right, title and interest (including copyright) in any customisations of, enhancements to or further developments of the Software and in any related Documentation that may be provided or made available to You by Tall Emu are also owned by and vest exclusively in Tall Emu.
10. If the Software is integrated with any other software, Tall Emu does not guarantee that the other software will not change in future versions, breaking the compatibility between or integration of the Software and the other software. Further, the other software may have limitations (of which Tall Emu may not be aware) that limit the functionality or operation of the Software. Under no circumstances is Tall Emu liable for any limitation or issue with, or that is caused or contributed to by any third party software.
11. You must not otherwise duplicate or alter, disassemble, de-compile, reverse engineer, or create a derivative work with the same “look and feel” or otherwise use the Software except as stated in this licence. Tall Emu is not responsible for, and has no liability for, any backup, or any failure to fully or accurately capture data or records as part of any backup.
12. You must not remove, obliterate, make illegible, amend or otherwise tamper with any notice or statement on or incorporated into the Software or Documentation as to the ownership of rights in the Software or Documentation, or the existence or terms of this licence.
13. You must not lend, give, rent, lease, or transfer the Software or Documentation to any person without the prior written consent of Tall Emu, which consent must not be unreasonably withheld.
14. The Software must only be used under the conditions and on an operating system for which the Software is designed, as listed on the Tall Emu website, at https://tallemucrm.com
15. Tall Emu reserves the right to withhold access to the Software where any fees or other money due to Tall Emu are unpaid for any reason. You are not entitled to any refund or credit of fees paid for any period of suspension of access.
16. Tall Emu may terminate this licence without any refund of fees paid if You fail to comply with the terms of this licence. Any use of the Software otherwise than in accordance with this licence is an infringement of Tall Emu’s intellectual property rights, as well as a breach of contract, entitling Tall Emu to take action against You to stop the use continuing, and to recover, at its option, the damages it has suffered or the profits You have made, as a result of those infringements.
17. 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 a 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.
18. This Agreement will be construed and enforced in accordance with the laws of the State of New South Wales, Australia. Disputes arising in connection with this Agreement shall be subject to the exclusive jurisdiction of the courts of New South Wales, Australia.