The Service is offered for the following software applications:
- ABACUS Cloud
- ABACUS Portfolio Manager (formerly called Data Editor)
- ABACUS Architect (formerly known as Modeler)
- ABACUS Designer
- ABACUS Simulator
- ABACUS SharePoint Sync
- ABACUS Report Builder
- ABACUS Intelligence On-Demand
- ABACUS Publisher
- ABACUS Enterprise Server
Application means one or more of the Avolution software applications listed above or such other software application as notified by Avolution from time to time.
Avolution means Avolution Pty Ltd of Level 6, 90 Mount Street, North Sydney, New South Wales 2060 Australia.
Fees means the charges by Avolution for subscription to or use of the Service.
Quotation means the Avolution quotation for software and/or services and any ancillary Avolution terms completed and processed by and with Subscriber to sign up for the relevant Service.
Service means hosting of the specific Avolution software Application identified during the ordering process, developed or licensed, operated, and maintained by Avolution, accessible via www.avolutionsoftware.com or another designated Avolution web site or IP address, or ancillary online or offline products and services provided to Subscriber by Avolution, to which Subscriber is being granted access under this Agreement.
Subscriber means the individual or entity that has subscribed for the Service under the terms and conditions of this Agreement.
Term means the Initial Term or any Renewal Term, as defined in Section 7 below.
User means Subscriber's employees, representatives, consultants, contractors, customers or agents who are authorised to use the Service and have been supplied User names and passwords by Subscriber (or by or for Avolution at Subscriber's request).
3. TERMS OF SERVICE FOR AVOLUTION APPLICATIONS
3.1. Terms of Service. Subscriber acknowledges and agrees to the terms of service herein. In addition, Subscriber agrees that unless explicitly stated otherwise, any new features that augment or enhance the Service, and/or any new Service(s) subsequently purchased by the Subscriber will be subject to this Agreement.
3.2. Subscriber Must Have Internet Access. In order to use the Service, Subscriber must have or must obtain access to the World Wide Web, either directly or through devices that access Web-based content. Subscriber must also provide all equipment necessary to make such (and maintain such) connection to the World Wide Web.
3.3. Accuracy Of Subscriber's Registration Information. Subscriber agrees to provide accurate, current and complete information ("Registration Data") about Subscriber in order to gain access to the Service. Subscriber further agrees to use commercially reasonable efforts to maintain and promptly update the Registration Data to keep it accurate, current and complete. Subscriber acknowledges and agrees that if Subscriber provides information that is intentionally inaccurate, not current or incomplete in a material way, or Avolution has reasonable grounds to believe that such information is untrue, inaccurate, not current or incomplete in a material way, Avolution has the right to suspend or terminate Subscriber's account.
3.4. Email And Notices. Subscriber agrees to provide Avolution with Subscriber's e-mail address, to promptly provide Avolution with any changes to Subscriber's e-mail address, and to accept emails (or other electronic communications) from Avolution at the e-mail address Subscriber specifies. Except as otherwise provided in this Agreement, Subscriber further agrees that Avolution may provide any and all notices, statements, and other communications to Subscriber through either e-mail or posting on the Service.
3.5. Passwords, Access, And Notification. The maximum number of Users that Subscriber may designate under Subscriber's account is the number of licenses purchased by Subscriber, and Subscriber may provide unique passwords and User names to each authorised User for each license purchased. Subscriber acknowledges and agrees that Subscriber is prohibited from sharing passwords and/or User names. User names may only be used by one person. A single User name shared by multiple people is not permitted. Subscriber will be responsible for the confidentiality and use of Subscriber's (including its employees') passwords and User names.
3.6. Third-Party Software. Subscriber agrees to use software produced by third parties, including, but not limited to, "browser" software that supports a data security protocol compatible with the protocol used by Avolution. Until notified otherwise by Avolution, Subscriber agrees to use software that supports the Secure Socket Layer (SSL) protocol or other protocols accepted by Avolution and to follow logon procedures for services that support such protocols. Subscriber acknowledges that Avolution is not responsible for notifying Subscriber of any upgrades, fixes or enhancements to any such software or for any compromise of data transmitted across computer networks not owned or operated by Avolution or telecommunications facilities, including, but not limited to, the Internet.
3.7. Transmission Of Data. Avolution employs security measures designed for the protection of information and data. However, Subscriber understands that the technical processing and transmission of Subscriber's electronic communications is fundamentally necessary to Subscriber's use of the Service. Subscriber agrees that Avolution is not responsible for any electronic communications and/or Subscriber Data which are lost, altered, intercepted or stored without authorisation during the transmission of any data whatsoever across networks not owned and/or operated by Avolution.
3.8. Subscriber Content.
a. Some areas of the Service allow Subscribers to post content such as data and other content or information (any such materials a Subscriber submits, posts, displays, or otherwise makes available on the Service "Subscriber Content"). Subscriber retains ownership of your Subscriber Content.
b. In connection with your Subscriber Content, Subscriber affirms, represents and warrants that the Subscriber Content and Avolution's use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any intellectual property rights and privacy rights. Avolution takes no responsibility and assumes no liability for any Subscriber Content that Subscriber or any other subscribers, users or third party posts or sends over the Service. Subscriber shall be solely responsible for its Subscriber Content. Avolution retains the right, in its sole discretion, to delete or remove any Subscriber Content at any time and with or without notice.
3.9. Proprietary Rights.
a. Subscriber acknowledges and agrees that the Service and any necessary software used in connection with the Service contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Subscriber further acknowledges and agrees that content or information presented to Subscriber through the Service may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
b. Each party retains all right, title and interest in its data, information and intellectual property rights, and nothing in this Agreement is intended to transfer or diminish such rights. The parties further acknowledge and agree that as between the parties, Avolution owns all right, title, and interest in the Service and Applications and underlying software and proprietary and intellectual property rights therein. The use by Licensee of any of these rights is authorised only for the purposes set forth herein and upon expiration or termination of this Agreement for any reason such authorisation will cease.
3.10. Confidentiality. Except as expressly and unambiguously permitted hereunder, each party shall hold in confidence and not use or disclose any materials or information disclosed by the other party that are marked as confidential or proprietary, or if disclosed verbally, reduced to writing and marked confidential within thirty (30) days after the date of disclosure ("Confidential Information"). Confidential Information will also include the Applications, Software, Documentation and any new product or service information. Each party shall treat the other party's Confidential Information with at least the same degree of care it uses to prevent unauthorised disclosure or use of its own Confidential Information, but in no event less than reasonable care. Confidential Information will not include: (i) any materials or information that the recipient can prove is now, or later becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public; (ii) is known by the receiving party at the time of disclosure as evidenced by its records; (iii) is furnished to the receiving party by a third party, as a matter of right and without restriction on disclosure; (iv) is independently developed by the receiving party without any breach of this Agreement; (v) is the subject of a written permission to disclose provided by the disclosing party; (vi) is disclosed in response to a valid order of a court or other governmental body or any political subdivision thereof "in the jurisdiction in which the confidential information is required to be disclosed; provided, however, that the receiving party shall first have given notice to the disclosing party and shall have made a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for which the order was issued; or (vii) is otherwise necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary. Access to the Confidential Information is limited to employees and agents of the receiving party who have a legitimate "need to know" the information for their performance of this Agreement, who have been advised of the confidential nature thereof and who have agreed in writing, as a condition of employment, engagement or otherwise, to protect the Confidential Information with terms no less than are imposed by this Agreement. Notwithstanding the above, Avolution may use aggregate information to measure general Service usage patterns and characteristics of its user base, and may include such aggregate information about its audience in promotional materials or reports to third parties. This aggregate information will not reference names, phone numbers, email addresses, or other personally identifiable information, and it is not traceable to a specific recipient or user email address.
3.11. Storage Limits. Subscriber acknowledges and agrees that Avolution is not required to set the amount of storage used; however, Avolution retains the right, in its sole discretion, to create limits or change limits at any time and with or without notice.
3.12. Service Rules.
a. Subscriber agrees not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated "scraping"; (ii) using any automated system, including without limitation "robots," "spiders," "offline readers," etc., to access the Service in a manner that sends more request messages to Avolution servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Avolution grants the operators of public search engines revocable permission to use spiders to copy materials from www.Avolution.com for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials)]; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorised by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
b. Avolution may, without prior notice, change the Service; stop providing the Service or features of the Service, to subscribers or to users generally; or create/change usage limits for the Service. Avolution may permanently or temporarily terminate or suspend Subscriber access to the Service without notice and liability for any reason, including if in Avolution's sole determination Subscriber violates any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, Subscriber continues to be bound by this Agreement.
4. RESTRICTIONS AND RESPONSIBILITIES
a. This is a contract for Services and the Application software will be installed, accessed and maintained only by or for Avolution and no license is granted thereto. Subscriber agrees that it will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any Application, software, documentation or data related to the Services ("Software"); modify, translate, or create derivative works based on the Services or any Software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software; use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. Subscriber represents, covenants, and warrants that Subscriber will use the Services only in compliance with this Agreement and all applicable laws (including but not limited to policies and laws related to spamming, privacy (including but not limited to any European privacy laws), intellectual property, consumer and child protection, obscenity or defamation). Subscriber hereby agrees to indemnify and hold harmless Avolution against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys' fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Subscriber's use of Services. Although Avolution has no obligation to monitor the content provided by Subscriber or Subscriber's use of the Services, Avolution may do so and may remove any such content or prohibit any use of the Services it believes may be (or are alleged to be) in violation of the foregoing.
b. Subscriber shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, web services, long distance and local telephone service (collectively, "Equipment"). Subscriber shall be responsible for ensuring that such Equipment and services are compatible with the Services (and, to the extent applicable, the Software) and complies with all configurations and specifications set forth in Avolution's published policies then in effect. Subscriber shall also be responsible for maintaining the security of the Equipment, Subscriber account, ancillary services, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Subscriber account, Services or the Equipment with or without Subscriber's knowledge or consent.
5. FEES, BILLING AND RENEWAL
a. Unless otherwise indicated by Avolution for the relevant Service, Fees for the subscription or use of a Service are payable and remitted to Avolution, as further described in this paragraph immediately below. Avolution charges and collects Fees in advance for use of the Service. During any Term, Avolution will automatically renew and bill Subscriber's credit card or issue an invoice (a) every month for monthly service, (b) every quarter for quarterly service, (c) each year on the subsequent anniversary for annual service, or (d) as otherwise mutually agreed upon.
b. Payments made by the Subscriber under this Agreement exclude any taxes or duties payable in respect of the goods or services supplied in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Avolution, the Subscriber must pay to Avolution the amount of such taxes or duties in addition to the Service Fees under this Agreement. Notwithstanding the foregoing, the Subscriber may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In such event, Subscriber shall have the right to provide to Avolution with any such exemption information and Avolution will use reasonable efforts to provide such invoicing documents as may enable the Subscriber to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
6. NON-PAYMENT AND SUSPENSION
All payments for Fees shall be due according to the terms in Section 5 (Fees, Billing and Renewal) and as provided on the relevant Service, and shall be deemed delinquent if not received by the due date. In addition to any other rights granted to Avolution herein, Avolution reserves the right to suspend or terminate this Agreement and Subscriber's access to the Service if Subscriber's account becomes delinquent. Delinquent invoices are subject to interest charges of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Subscriber will continue to be charged for User seats during any period of suspension. If Subscriber or Avolution initiates termination of this Agreement, Subscriber will be obligated to pay the balance due on account computed in accordance with this Section and the Fees, Billing and Renewal Section above. Subscriber agrees that Avolution may charge such unpaid Fees and charges to Subscriber's credit card or otherwise bill Subscriber for such unpaid Fees and charges. Subscriber agrees and acknowledges that Avolution has no obligation to retain Subscriber Data and that such Subscriber Data may be irretrievably deleted if Subscriber's account becomes delinquent.
7. TERM, REDUCTION IN USERS and TERMINATION
a. This Agreement commences on the Effective Date. Unless earlier terminated under Sections 6 or 7, this Agreement will automatically renew at the end of the initial Term specified in the Quotation (the "Initial Term") and any Renewal Term for successive renewal terms equal in duration to the Initial Term, or one year, if the Initial Term is equal to or greater than one year (each a "Renewal Term") at Avolution's then current rates, unless a different rate is specified for subsequent terms in the Quotation. Either party may terminate this Agreement or reduce the number of Users, effective only upon the expiration of the then current Term, by notifying the other party in writing at least five (5) business days prior to the date of the invoice for the following Term. In the case of free trials, Avolution may terminate this Agreement without advanced notice. In the event this Agreement is terminated (other than by reason of Subscriber's breach), Avolution will make available to Subscriber a file of the Subscriber Data within 30 days of termination if Subscriber so requests at the time of termination. Subscriber agrees and acknowledges that Avolution has no obligation to retain the Subscriber Data, and may delete such Subscriber Data, more than 30 days after termination.
b. Any breach or delinquency of Subscriber's payment obligations or unauthorised use of the Service will be deemed a material breach of this Agreement. Avolution, in its sole discretion, may terminate Subscriber's password, account or use of the Service and this Agreement if Subscriber breaches or otherwise fails to comply with this Agreement. In addition, Avolution may terminate a free account at any time in its sole discretion. Subscriber agrees and acknowledges that Avolution has no obligation to retain the Subscriber Data, and may delete such Subscriber Data, if Subscriber has materially breached this Agreement, including, but not limited to, failure to pay outstanding Fees, and such breach has not been cured within 30 days of payment delinquency or notice of such breach.
c. Sections 2 (Definitions), 3 (Terms of Service for Avolution Applications), 4 (Restrictions and Responsibilities), 5 (Fees, Billing and Renewal) (surviving until all Fees and charges are paid and Subscriber responsibilities fulfilled), 6 (Non-Payment and Suspension) (surviving until all Fees and charges are paid), 7 (Term, Reduction in Users and Termination), 8 (Assignment, Successors and Assigns), 11.b. (Indemnification), 12 (Disclaimer of Warranties), 13 (Exclusion of Damages and Limitation of Liability), and 16 (General Provisions), shall survive expiration or termination of this Agreement.
8. ASSIGNMENT, SUCCESSORS AND ASSIGNS
a. Subscriber shall not transfer or assign this Agreement or any rights or obligations hereunder without the prior written consent of Avolution, and any attempted assignment or transfer in violation of the foregoing will be void. This Agreement will be for the benefit of the permitted successors and assigns, and will be binding on heirs, legal representatives and permitted assignees.
b. Avolution may assign its rights in this agreement to any third party as it determines in its absolute discretion.
9. PUBLICITY RIGHTS
Subscriber grants Avolution the right to include the Subscriber as a customer in Avolution's promotional material. Subscriber can opt to have their name excluded from such use by Avolution except as agreed to in writing on a case-by-case basis by providing a sufficiently detailed email request regarding the same to firstname.lastname@example.org; the subject line in such email should be entitled "Non-use of Subscriber Name."
10. REPRESENTATIONS & WARRANTIES
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Avolution represents and warrants that it will use commercially reasonable efforts to provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and substantially in accordance with the online Avolution help documentation under normal use and circumstances. Subscriber represents and warrants that Subscriber has not provided any false information to gain access to the Service and that billing information is correct.
a. By Avolution. Avolution shall defend, indemnify and hold Subscriber harmless from all settlements agreed to by Avolution and all costs and direct damages finally awarded to a third party to the extent they arise out of a claim that the Service as delivered to Subscriber infringes a third party's registered Australian patent or copyright. Subscriber will be entitled to indemnification only (i) if Subscriber notifies Avolution in writing within ten (10) days of the date Subscriber first becomes aware of a claim; (ii) Avolution has sole control of the settlement, compromise, negotiation and defence of any such action; and (iii) Subscriber gives Avolution all reasonably available information and assistance, at Avolution's expense. Avolution may, at its option, obtain the right to continued use of the Service, substitute other equivalent service, or modify the Service so it is no longer infringing, or, if none of the foregoing remedies are commercially feasible in Avolution's sole discretion, terminate Subscriber's right to the allegedly infringing Service and refund to Subscriber a pro rata portion of the amount which Subscriber has paid for such Service. The foregoing indemnity will not apply to any infringement claim arising from (a) modification of the Service by parties other than Avolution, (b) combination of the Service with hardware and/or other software and/or ancillary services, if such claim would have been avoided by not so combining the Service, or (c) use of the Service other than in accordance with Avolution instructions and documentation. THE FOREGOING STATES AVOLUTION'S SOLE OBLIGATION AND SUBSCRIBER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS OF ANY KIND.
b. By Subscriber. Subscriber shall defend, indemnify and hold Avolution harmless from all third party claims and settlements agreed to by Subscriber and all costs and direct damages awarded to a third party to the extent they arise out of Subscriber's infringement of any third party rights, or breach of any provision of this Agreement, or making representations or warranties regarding the Service to other third parties. Avolution agrees that (i) it shall provide written notice promptly after it first becomes aware of a claim; (ii) Subscriber shall have sole control of the settlement, compromise, negotiation and defence of any such action; and (iii) it shall give Subscriber all reasonably available information and assistance, at Subscriber's expense. Avolution shall have the right to participate in the defence or settlement with counsel of its own choosing at Avolution's expense, provided however that the same shall be at Subscriber's expense if Subscriber fails to put on an adequate defence of Avolution.
12. DISCLAIMER OF WARRANTIES
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY SET FORTH HEREIN, AVOLUTION AND ITS THIRD PARTY SUPPLIERS/LICENSORS PROVIDE THE SERVICE (INCLUDING AND SOFTWARE APPLICATION AND MAINTENANCE) AS IS AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES AND GUARANTEES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR ANY PURPOSE. WITHOUT LIMITING THE FOREGOING, AVOLUTION AND ITS THIRD PARTY SUPPLIERS/LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE (1) AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT THEREIN OR GENERATED THEREWITH, (2) AVOLUTION AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET SUBSCRIBER'S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY SUBSCRIBER THROUGH THE SERVICE WILL MEET SUBSCRIBER'S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE (OR ANY SERVER(S) THAT MAKE THE SERVICE AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AVOLUTION AND ITS THIRD PARTY SUPPLIERS/LICENSORS MAKE NO REPRESENTATIONS OR WARRNTIES WHATSOEVER WITH RESPECT TO, AND ASSUME NO LIABILITY FOR, ANY SERVICE PROVIDED ON AN EVALUATION BASIS. IN ADDITION, AVOLUTION AND ITS THIRD PARTY LICENSORS/SUPPLIERS SHALL NOT BE LIABLE FOR DELAYS, INTERUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF AVOLUTION.
13. EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY
IN NO EVENT WILL AVOLUTION'S AGGREGATE LIABILITY UNDER ANY CLAIMS ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID BY SUBSCRIBER TO AVOLUTION DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE INITIAL EVENT RESULTING IN SUCH CLAIMS. AVOLUTION WILL NOT BE LIABLE FOR LOST PROFITS OR FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION, EVEN IF AVOLUTION IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE CUMULATIVE FOR ALL CLAIMS HOWSOEVER ARISING UNDER ALL AGREEMENTS, AND SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF THE REMEDIES PROVIDED IN THIS AGREEMENT SHALL FAIL OF THEIR ESSENTIAL PURPOSE.
14. PHYSICAL LOCATION
The Service is controlled and operated from its facilities in Sydney, Australia. Avolution makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable Australian and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by Australia, or are a foreign person or entity blocked or denied by the Australian government.
15. ACA NOTICE
Avolution respects artist and content owner rights, and therefore it is Avolution’s policy to respond to alleged infringement notices that comply with the Australian Copyright Act of 1968 (“ACA”). If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Avolution’s copyright agent as set forth in the ACA. For your complaint to be valid under the ACA, you must provide the following information in writing:
- An electronic or physical signature of a person authorised to act on behalf of the copyright owner;
- Identification of the copyrighted work that you claim has been infringed;
- Identification of the material that is claimed to be infringing and where it is located on the Service;
- Information reasonably sufficient to permit Company to contact you, such as your address, telephone number, and, e-mail address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorised by the copyright owner, its agent, or law; and
- A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorised to act on behalf of the owner.
The above information must be submitted to the following ACA Agent:
Attn: ACA Notice
Avolution Pty Ltd
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES. Please note that this procedure is exclusively for notifying Avolution and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Avolution's rights and obligations under the ACA, but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the ACA and other applicable laws. In accordance with the ACA and other applicable law, Avolution has adopted a policy of terminating, in appropriate circumstances, Users or Subscribers who are deemed to be repeat infringers. Avolution may also at its sole discretion limit access to the Service and/or terminate the accounts of any Subscribers or Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
16. GENERAL PROVISIONS
This Agreement is governed by the laws of New South Wales (NSW), Australia and the parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of NSW, Australia. This Agreement, including all Quotations provided by and entered with Avolution in connection herewith, constitutes the entire agreement between the parties with regard to its subject matter, supersedes all prior or contemporaneous agreements, commitments, representations, writings, and discussions between the parties, whether oral or written, shall apply in lieu of the terms or conditions in any Subscriber purchase order or other order documentation (all such terms or conditions shall be null and void), and there are no other agreements, representations, warranties, or commitments which may be relied upon by either party. Neither party shall be liable hereunder by reason of failure or delay in the performance of its obligations hereunder (except for the non-payment of money) on account of strikes, shortages, riots, insurrection, war, acts of terrorism, fires, flood, storm, explosions, earthquakes, acts of God, governmental action, labour conditions, or any other cause which is beyond the reasonable control of the party. If a court of competent jurisdiction finds any provision hereof invalid or unenforceable, that provision will either be amended to achieve as nearly as possible the intent of the parties, or if amendment is not possible the offending provision shall be deemed struck, and the remainder of this Agreement will remain in full force and effect. The captions and headings in this Agreement are for convenience only and shall not effect the construction and interpretation of any provision of this Agreement. Where this Agreement is executed in hard copy and not entered into by on-line acceptance, this Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. In the event of a conflict with the provisions of this Agreement, the provisions in any Quotation shall govern.