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(a) The Customer is responsible for protecting:
(i) the Software;
(ii) licence keys and activation credentials;
(iii) accounts used to access the Software;
(iv) Customer Data;
(v) computer systems and networks; and
(vi) backup and recovery systems,
against unauthorised access, use, copying, disclosure, alteration, loss or damage.
(b) The Customer must:
(c) Xarial may suspend or deactivate a licence key, account or activation credential where Xarial reasonably believes that it:
(d) Xarial will use reasonable measures appropriate to the nature of the information it holds but does not warrant that the Software, its systems or electronic communications will be completely secure or free from all malicious code, vulnerabilities or unauthorised interference.
(a) Subject to this clause, Xarial will indemnify the Customer against an amount that the Customer is legally required to pay to a third party under a final judgment or settlement approved by Xarial arising from a claim that the Customer’s authorised use of the Software infringes that third party’s Intellectual Property Rights.
(b) The indemnity does not apply to a claim alleging infringement of a patent.
(c) The indemnity applies only if the Customer:
(d) A delay in notification does not relieve Xarial of its obligations except to the extent that the delay materially prejudices Xarial’s or its insurer’s ability to defend or settle the claim.
(e) Xarial is not liable under this indemnity to the extent that the claim arises from:
(f) If a claim is made or Xarial reasonably considers that a claim is likely, Xarial may at its option:
(g) Subject to any right or remedy that cannot lawfully be excluded, this clause states the Customer’s sole and exclusive remedy for a claim that the Software infringes a third party’s Intellectual Property Rights.
(h) Nothing in this clause requires Xarial to:
(i) admit liability;
(ii) make a payment;
(iii) appoint a legal representative;
(iv) assume conduct of a claim; or
(v) enter into or approve a settlement,
without first obtaining any consent required from its insurer.
(i) Xarial’s obligations under this clause are subject to:
(i) requires Xarial to admit liability;
(ii) imposes an ongoing obligation on Xarial;
(iii) restricts Xarial’s business or use of its Intellectual Property Rights; or
(iv) prejudices Xarial’s insurance,
without Xarial’s prior written consent.
(a) The Customer is responsible for implementing and maintaining appropriate security, access controls, backups, recovery procedures and verification processes in connection with the Software and any data, files, drawings, models, systems or devices used with the Software.
(b) To the maximum extent permitted by law, Xarial is not responsible for any unauthorised access to, use of, destruction of, loss of, corruption of, damage to or alteration of:
(i) the Customer’s data, files, drawings, models or other information;
(ii) the Customer’s computer systems, networks, devices or software; or
(iii) any output generated, processed or stored using the Software,
except to the extent directly caused by Xarial’s breach of this EULA, negligence or other liability that cannot lawfully be excluded.
(c) The Customer must take reasonable precautions to ensure that its installation, access to and use of the Software does not expose the Software, the Customer’s systems or any third party to hacking, malware, ransomware, viruses, malicious code, unauthorised access or other interference.
(d) Except for any express warranty in this EULA and any right, guarantee, condition, warranty or remedy that cannot lawfully be excluded, the Software, Documentation, Support, Updates, New Releases and Beta Features are provided on an “as is” and “as available” basis.
(e) To the maximum extent permitted by law, Xarial excludes all representations, guarantees, conditions and warranties, whether express, implied, statutory or otherwise, including any representation, guarantee, condition or warranty concerning:
(f) Nothing in this EULA excludes, restricts or modifies any consumer guarantee, right or remedy conferred by the Australian Consumer Law or any other applicable law that cannot lawfully be excluded, restricted or modified.
(g) Where Xarial is permitted to limit its liability for breach of a non-excludable consumer guarantee, condition or warranty, Xarial’s liability is limited, at Xarial’s option:
(h) The preceding limitation does not apply where it would be contrary to section 64A of the Australian Consumer Law or any other applicable law.
(i) To the maximum extent permitted by law, Xarial will not be liable for any indirect, incidental, special, exemplary, punitive or consequential loss, or for any loss of profit, revenue, business, opportunity, contract, anticipated saving, goodwill, reputation, production, use or data, whether direct or indirect, arising out of or in connection with this EULA or the Software.
(j) The exclusion of loss in the preceding paragraph does not apply to the extent that the loss:
(k) Subject to the exclusions and limitations in this EULA and to any liability that cannot lawfully be limited, Xarial’s total aggregate liability arising out of or in connection with this EULA, the Software, Support, Maintenance, Updates or New Releases is limited to the Licence Fee paid by the Customer for the affected Licence.
(l) Subject to any liability that cannot lawfully be limited, Xarial’s total aggregate liability arising from:
(i) Xarial’s breach of confidentiality; or
(ii) a third-party claim covered by Xarial’s intellectual property indemnity,
is limited to two times the Licence Fee paid by the Customer for the affected Licence.
(m) The liability caps apply collectively to all claims, losses and causes of action arising out of or in connection with the same or related events and do not operate separately for each claim; for a perpetual Licence, the applicable Licence Fee is the initial fee for the affected Licence, including the first 12 months of bundled Support and Maintenance, and a later optional Maintenance Fee does not create a separate or additional cap unless the claim arises solely from that separately purchased Maintenance, in which case Xarial’s aggregate liability for that claim will not exceed that Maintenance Fee, subject always to any liability that cannot lawfully be limited.
(n) To the maximum extent permitted by law, the operation of Part 4 of the Civil Liability Act 2002 (NSW), and any corresponding proportionate liability legislation, is excluded in relation to all claims arising out of or in connection with this EULA.
(o) Nothing in this EULA requires Xarial to:
(i) admit liability;
(ii) make any payment;
(iii) assume conduct of any claim;
(iv) appoint any legal representative; or
(v) enter into or approve any settlement,
without first obtaining any consent required from its insurer.
(p) Any obligation of Xarial to indemnify, defend, settle or pay an amount in connection with a claim is subject to:
Each party must promptly do all things and execute all documents reasonably necessary to give full effect to this EULA.
(a) The Customer must not assign, novate, transfer, sublicense, charge or otherwise deal with any of its rights or obligations under this EULA without Xarial’s prior written consent, which must not be unreasonably withheld or delayed where the proposed assignee has the capacity to perform the Customer’s obligations and is not a competitor of Xarial or subject to sanctions or export-control restrictions.
(b) Xarial may assign, novate or transfer its rights or obligations under this EULA to:
(i) a Related Body Corporate;
(ii) a purchaser of all or a substantial part of Xarial’s business or assets relating to the Software; or
(iii) a successor arising from a merger, restructure or change of control,
by giving written notice to the Customer, provided that the assignment, novation or transfer does not materially reduce the Customer’s rights or remedies or increase its obligations under this EULA.
(c) Any purported dealing by the Customer in breach of this clause is void to the extent permitted by law.
In this EULA:
In this EULA, unless the context requires otherwise:
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