Effective: May 24, 2018
Welcome and thank you for your interest in Avolution.
By accessing, browsing or otherwise using the Sites, you acknowledge that you have read and understand these Terms and that you agree to be legally bound by these Terms.
We advise you to read these Terms carefully before using any of the Sites. If you do not agree to these Terms, you are not authorised to access and use the Sites and you must discontinue immediately such access and use.
Your Use of Our Sites
“You” or “your” means you. “Avolution,” “we,” “our” or “us” means Avolution Pty Ltd and/or its current and future affiliates and related companies (“Affiliates”).
Ownership of our Sites and Content. All text, graphics, user interfaces, visual interfaces, photographs, videos, trade marks, logos, sounds, artwork and computer code (“Site Content”), including but not limited to the design, structure, selection, coordination, expression, compilation, “look and feel” and arrangement of such Site Content, contained on the Sites is owned, controlled or licensed by or to Avolution, and is protected by trade dress, trade secret, copyright, patent and trade mark laws, and various other intellectual property rights and laws. Avolution or its licensors retain all rights, title and interest in the Sites and such Site Content. Avolution grants you a limited, revocable, non-exclusive, non-sublicensable and non-transferable right to view the Site Content solely for your internal use of the Sites.
Changes to the Sites. While we endeavour to ensure that Site Content is correct, up to date and complete, we are not obliged to identify to you any Site Content that is incorrect, out of date, superseded or incomplete, nor are we obliged to update, correct or complete such content. Avolution may change or discontinue any aspect, service or feature of any of the Sites at any time, or an entire Site itself.
Personal and Non-Commercial Use. The Sites and Site Content are made available for your personal, non-commercial and informational use. You may not, in any form by any means, modify, copy, distribute, disclose, disseminate, transmit, display, “mirror”, perform, reproduce, publish, license, create derivative works from any Site Content without Avolution’s prior express written consent.
You may download, store, and display to view, listen to and print Site Content relating to Avolution Products and Services (such as data sheets, knowledge base articles, and similar Materials) purposely made available by Avolution for downloading from the Sites, provided that you do not make any additional representations or warranties relating to such content; and
(a) you use such content solely for your personal, informational, non-commercial and non-competitive purposes;
(b) you do not modify any Content or use any graphics from any Content separately from the corresponding text;
(c) you do not remove copyright, trade mark, author attribution, other proprietary marks or other intellectual property notices or legends from any accessed, downloaded or printed Site Content, or otherwise act in a way to cause or risk causing infringement, a weakening of, or damage to Avolution, or our brands, intellectual property or business;
(d) you do not, directly, indirectly or by inference, (i) state that we endorse or are related to or responsible for any products or services which are not our own, (ii) misrepresent your association or dealings with Avolution; or (iii) misuse the Site or Site Content in connection with any unlawful or criminal purpose;
(e) you do not use the Site Content in a manner so as to associate or risk associating us with any content which is or might be harmful, infringes any intellectual property rights or other rights of any third party or otherwise does not comply with all applicable Laws;
(f) you do not post, transmit, upload, link to, propagate, disseminate, send or store any viruses, malware, Trojan Horses, worms, malicious script, spyware, time bombs, or any other similar known or future harmful or malicious software, code or elements (“Malicious Components”) to the Sites or any Site Content.
No Site Link. You agree not to establish a link from any web site to any of our Sites or frame one of our Sites on any other web site, without the prior express written consent of Avolution.
Third-Party Sites. The Sites provides links or references to non-Avolution websites, businesses, products and resources (“Third-Party Sites”). When you access such Third-Party Sites, you shall be subject to separate terms and conditions for such sites, products and resources. Avolution is not responsible for and makes no representations, warranties or endorsement whatsoever about any such Third-Party Sites that may be referenced, accessible from, or linked to any of the Sites. Avolution is not a party to or responsible for any transactions you may enter into with any Third-Party Site, even if you learn of such Third-Party Site (or use a link to such sites) from an Avolution Site.
Compliance with Laws. You agree that you will comply with all applicable Laws that relate to the use of the Sites, including those of the jurisdictions from which you access a Site, and any other applicable jurisdiction which may be involved in the access, transmission, storage, transfer, disclosure or use of the Sites. For purposes of these Terms, “Laws” mean any and all national, federal, economic union, state, provincial, regional, territorial, municipal and local laws, statutes, regulations and rules of or by any legitimate government, authority, department or agency thereof, including those Laws relating to privacy, data, anti-bribery, anti-corruption, use, export and re-export controls, sanctions, end-user and destination restrictions.
Our Products and Services
Avolution and/or its licensors own and retain all right, title and interest in ABACUS® Software, ABACUS® Cloud Services, other Avolution products and services, and associated documentation and related materials, including intellectual property rights in all of the foregoing (“Products and Services”). Nothing in these Terms grants any express or implied right, title or interest to you to or in the Products and Services. The use of such Products and Services is governed by the terms and conditions of Avolution’s End User Agreement (EUA) or your particular customer agreement with Avolution, if applicable (collectively, “Customer Agreement”). In the event of any conflict, terms and conditions of your Customer Agreement will prevail over terms and conditions of these Terms. Avolution’s obligations, if any, with regard to its Products and Services are governed solely by the Customer Agreements pursuant to which they are provided, and nothing on the Sites should be construed to alter such agreements.
All evaluation, demo and beta Products and Services are provided “AS IS,” “AS AVAILABLE” for evaluation and internal uses only (“Evaluation Products”) and may not be used for commercial, development or production purposes, unless otherwise expressly agreed to by Avolution. Evaluation Products, paid or free, accessed or requested via the Sites are still subject to the terms and conditions of the EUA.
Your Information and Content
If we do grant you access to an otherwise restricted area of the Sites, your login details are personal to you, and you must keep them confidential and not permit or enable another person to use them. All actions (including unauthorised actions) conducted using your login details shall be deemed to be conducted by you, and you shall therefore be responsible for those actions.
License to User Content. We do not claim any ownership rights in any User Content. However, by submitting any User Content to any of the Sites, and without limiting any rights you have in your Personal Data, you automatically grant to Avolution a worldwide, royalty-free, sub-licensable, transferable, perpetual, irrevocable license to use, publish, reproduce, modify, adapt, edit, translate, share, disclose, delete, create derivative works from, incorporate into other works, distribute, sub-license and otherwise exploit such User Content (in whole or in part) in any form, media or technology now known or hereafter developed for the full term of any copyright that may exist in such User Content. You represent and warrant to Avolution that you have the right, title, and/or authority to grant such licence to Avolution.
Avolution will treat any User Content submitted by you to the Sites as non-confidential and non-proprietary, except as required under applicable Laws or pursuant to a separate written agreement with you.
We may, in our sole discretion, (i) reject or remove any portion of User Content you provide or submit, (ii) restrict, suspend or terminate your access to any or all of the Sites or Communities or (iii) cease to provide and maintain the Sites, at any time, for any or no reason, with or without prior notice, and without liability. You also acknowledge that other users of certain of the Communities may access, view, store, share publicly and reproduce your User Content for such user’s personal use or otherwise in connection with use of the Site. You agree to not post, modify, distribute, or reproduce in any way copyrighted or other proprietary materials without obtaining the prior express written consent of the copyright owner of such materials.
Moral Rights. If it is determined that you retain moral rights (including rights of attribution or integrity) in the User Content, you hereby declare that you (i) do not require that any Personal Data is used in connection with the User Content, or any derivative works of or upgrades or updates thereto; (ii) have no objection to the publication, use, modification, deletion and exploitation of the User Content by Avolution or its licensees, successors and assigns; (iii) forever waive and agree not to claim or assert any entitlement to any and all moral rights of an author in any of the User Content; and (iv) forever release Avolution and Affiliates and their respective licensees, successors and assigns, from any claims that you could otherwise assert against Avolution by virtue of any such moral rights.
Disclaimers of Warranty and Liability
DISCLAIMER OF WARRANTY. ALL STATEMENTS, REPRESENTATIONS, INFORMATION, SERVICES OR MATERIALS ON OR ACCESSIBLE FROM THE SITES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH NO WARRANTIES OR GUARANTIES WHATSOEVER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, AVOLUTION, ITS AFFILIATES AND ITS LICENSORS DO NOT MAKE, AND HEREBY DISCLAIM, ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AVAILABILITY, SUITABILITY, COMPLETENESS, ACCURACY, QUALITY, ERROR-FREE, SECURITY AND UNINTERRUPTED OPERATION. AVOLUTION, ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT, GUARANTEE OR WARRANT THAT (i) THE USE OF THE SITES, SITE CONTENT, MATERIALS AND RELATED SERVICES WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK OR (iii) THE SITES OR THE SITE CONTENT WILL BE FREE OF MALICIOUS COMPONENTS. YOU UNDERSTAND AND AGREE THAT IF YOU DOWNLOAD, USE OR OTHERWISE OBTAIN SITE CONTENT OR SERVICES FROM THE SITES, YOU DO SO AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES THAT MAY RESULT, INCLUDING LOSS OF DATA OR DAMAGE TO YOUR EQUIPMENT AND/OR NETWORK.
DISCLAIMER OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, AVOLUTION, ITS AFFILIATES, ITS LICENSORS AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND WHATSOEVER, RELATED TO OR ARISING FROM THE SITES, SITE CONTENT OR ANY THIRD-PARTY SITES, EVEN IF AVOLUTION KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE. THIS DISCLAIMER OF LIABILITY APPLIES TO ALL CAUSES OF ACTION, WHETHER BASED ON CONTRACT, WARRANTY, TORT, OR ANY OTHER LEGAL THEORIES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IF APPLICABLE LAWS DO NOT ALLOW ALL OR ANY PART OF THE ABOVE DISCLAIMER OF LIABILITY TO APPLY TO YOU, THE LIMITATIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
Avolution reserves the right to do any of the following, at any time, without notice: (i) to modify, suspend or terminate operation of or access to any of the Sites, or any portions of the Sites, for any reason; (ii) to modify or change the Sites, any portion of the Sites and any applicable policies or terms; and (iii) to interrupt the operation of the Sites, or any portion of the Sites, as necessary to perform routine or non-routine maintenance, error correction, or other changes.
You agree to indemnify, defend and hold harmless Avolution, its Affiliates, and their respective shareholders, directors, officers, employees, agents, representatives, predecessors and successors-in-interest (“Indemnified Parties”) from and against any and all claims made or threatened against such Indemnified Parties by any third party, and all related losses, expenses, damages, costs and liabilities, including reasonable attorneys’ fees and expenses incurred (“Damages”), if such Damages arise out of or relate to your obligation or representation in these Terms, use of the Sites, or your fraud, fault, negligence, or wilful misconduct.
Copyright and Trade Marks
Trade Marks. Avolution®, ABACUS® and the other trade marks, service marks, trade names, trade dress, logos, phrases, icons, graphics or designs, registered or unregistered, displayed on the pages of our Sites (collectively, “Marks”) are valuable assets that Avolution needs to protect. The Marks are the property of Avolution or other third parties. The display of any of the Marks on the Sites does not imply that you have been granted any licence or consent to use such Marks.
The Marks may be used only with the prior express written consent of Avolution or the relevant third-party Mark owner, and then in strict compliance with any applicable trademark guidelines. You agree that you will not (i) interfere with Avolution’s or the other third-party owner’s rights in the Marks, including challenging Avolution’s use, registration of, or application to register such Marks, alone or in combination with other words, anywhere in the world and (ii) harm, misuse, or bring into disrepute any Mark.
Misuse or unauthorised use of any of the Marks is strictly prohibited and Avolution shall aggressively enforce its intellectual property rights to the fullest extent of the law. Any questions concerning the use of these Marks should be referred to Avolution at firstname.lastname@example.org.
Copyright. All Site Content included in or made available through any of the Sites is owned by Avolution or the party that has provided the content to us and is protected by international and national copyright conventions and laws. Avolution also owns copyright in the selection, coordination, arrangement, compilation and enhancement of such content, as well as in the Site Content original to it.
Except as expressly provided in these Terms, you may not copy, modify, publish, transmit, distribute, participate in the transfer or sale, “mirror,” create derivative works, or in any way exploit, any of the Sites or Site Content, in whole or in part to any other computer, server, web site or other medium. If you are interested in obtaining a licence to any Site Content for other usages not addressed in these Terms, please contact email@example.com.
Copyright Infringement. Avolution respects the intellectual property rights of others, and we require our users to do the same. If you believe that your copyrighted work or other rights have been copied or accessed on the Sites in a way that constitutes copyright infringement, please contact firstname.lastname@example.org with written notice with the following information:
- An electronic or physical signature of the owner or the person authorised to act on behalf of the owner of the copyright or other interest;
- A description of the copyrighted work or other work that you claim has been infringed;
- A description of where the material that you claim is infringing is located on our Sites, such as the URL where it is posted;
- Your address, telephone number and email address;
- A written statement by you that you have a good faith belief that the disputed use is not authorised by the copyright owner, its agent or the law; and
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorised to act on the copyright owner’s behalf.
If the disputed materials were posted by a third party identifiable through reasonable efforts, we will try to provide notice to the third party of the charge. If the third party responds, we will provide you with a copy so that you may take any other steps you may consider appropriate.
Of Age. You represent and warrant that you (i) are at least 18 years old, (ii) have not been previously suspended from using any of the Sites or Products and Services and (iii) have full power and authority to accept and be bound by these Terms.
Governing Law. These Terms shall be governed by the laws of the State of New South Wales, Australia, without regard to any conflict of laws rules or principles.
Governing Jurisdiction. If there is any dispute relating to these Terms, you and Avolution agree to exclusive personal jurisdiction and venue in the state and federal courts of New South Wales, Australia and you consent to personal jurisdiction in such courts. This choice of jurisdiction does not prevent either party from seeking injunctive relief in any appropriate worldwide jurisdiction with respect to violation of a party’s intellectual property rights.
Severability. If any provision of the Terms is determined to be unenforceable, the remainder of such provision and the rest of the Terms shall continue in full force, to the extent they are enforceable, and any such unenforceable provision shall be deemed revised in order to provide the party adversely affected by such determination with the benefit of its expectation, to the maximum extent legally permitted.
No Waiver. If you or others violate these Terms and we take no immediate action, or even elect to not enforce all or any part of any Term in a given circumstance, this in no way limits, prejudices or waives our rights, such as our right to take action in the future or in similar situations.
Non-Disparagement. You agree that you will not (i) disparage, speak ill, write, broadcast in, on or via any medium, or (ii) permit any of the same by your employees, directors, shareholders, licensors, contractors and representatives (“Personnel”), in any manner that which might possibly have any adverse impact upon Avolution, its Affiliates, or their respective licensors, businesses, Products and Services or Personnel (“Disparagement”). You will promptly diligently take all commercially reasonable steps to prevent, erase, undo and/or remediate any Disparagement by you or your Personnel. For purposes of these Terms, Disparagement shall include any oral, written, digital, online or other form of comments, reviews, feedback, references or communication in any form or kind now known or available in the future.
Electronic Communications. When you visit the Sites, submit an electronic information request or form, post comments or other input to a Community or Site, and/or send e-mails to Avolution, you are communicating with Avolution electronically. We may respond to you by e-mail and/or by posting communications on the Sites. You agree that all such notices, disclosures and other communications that Avolution provides to you electronically satisfy any legal requirement that such communications be in writing.
Thank you for Visiting.