THIS END USER LICENCE AGREEMENT ("AGREEMENT") IS BETWEEN OUTBYTE COMPUTING PTY LTD (SYDNEY) AND ITS AFFILIATES HEREINAFTER "OUTBYTE") AND THE END USER ("YOU").
TO INSTALL AND USE SOFTWARE AND SERVICES BY OUTBYTE YOU MUST ACCEPT THE TERMS OF THE END USER LICENCE AGREEMENT BELOW.
PLEASE READ THIS AGREEMENT CAREFULLY. BY DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING ALL OR ANY PORTION OF OUTBYTE SOFTWARE OR SERVICES YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THIS AGREEMENT, DO NOT USE OUTBYTE SOFTWARE OR SERVICES. OUTBYTE RECOMMENDS THAT YOU KEEP A COPY OF THIS AGREEMENT FOR YOUR RECORDS.
SECTION 16 OF THIS AGREEMENT CONTAINS A BINDING ARBITRATION AND CLASS ACTION WAIVER. PLEASE READ IT CAREFULLY AS IT AFFECTS HOW DISPUTES ARE RESOLVED.
In consideration of the payment by you of the applicable fee (unless the Product is free of charge) in respect of the Product (the «Fee») Outbyte grants to you a non-exclusive and non-transferable Licence to install and use the Product for your own personal or internal business purposes subject to the terms of this Agreement; make one copy of the Product for backup and disaster recovery purposes only; and use the Product strictly in accordance with the provisions of this Agreement. Outbyte reserves all rights not expressly granted to you in this Agreement.
The Product licensed to you may be used by a single person personally on one computer. Only you can use this copy of the Product. In order for someone else to use a copy of the Product they must obtain their own individual and separate Licence.
You must not modify or alter the Product or merge all or any part of the Product with any other software without Outbyte’s written permission. If the Product is modiﬁed or altered:
The Product as modiﬁed or altered remains the property of Outbyte in all respects, whether modiﬁed by you, Outbyte or a third party and whether or not authorised pursuant to this Agreement. You must assign to Outbyte all intellectual property rights arising out of any modiﬁcations to the Product.
This Agreement applies to the Product as modiﬁed or altered.
Other than as required by law, you may not reverse engineer, reverse assemble or reverse compile or directly or indirectly allow or cause a third party to reverse engineer, reverse assemble or reverse compile the whole or any party of the Product.
You are responsible for the use, supervision, management and control of the Product. You must use reasonable endeavours to ensure that the Product is protected at all times from misuse, damage, destruction or any form of unauthorised use. You must keep accurate records of use, copying, modiﬁcation and disclosure of the Product.
Outbyte may in its sole discretion notify you from time to time of any update or new release of the Product. Where an update or new release is provided by Outbyte:
OUTBYTE WARRANTS THAT IT HAS AUTHORITY TO GRANT THE RIGHTS GRANTED IN THIS AGREEMENT.
OUTBYTE WILL NOT BE LIABLE UNDER THIS CLAUSE TO THE EXTENT THAT A DEFECT IS CAUSED BY YOUR USE OF THE PRODUCT OTHER THAN IN ACCORDANCE WITH THIS AGREEMENT, INCLUDING THE FAILURE BY YOU OR A THIRD PARTY TO MAINTAIN THE OPERATING ENVIRONMENT DESIGNATED IN THE DOCUMENTATION OR TO OTHERWISE USE THE PRODUCT IN ACCORDANCE WITH ANY SPECIFICATIONS ISSUED BY OUTBYTE.
YOU ACKNOWLEDGE THAT THE PRODUCT IS DISTRIBUTED AS IS AND OUTBYTE IN NO WAY GUARANTEES THAT IT WILL OPERATE UNINTERRUPTED OR BE ERROR FREE. YOU ACKNOWLEDGE THAT THE EXISTENCE OF ANY ERRORS DOES NOT CONSTITUTE A BREACH OF THIS AGREEMENT.
YOU FURTHER ACKNOWLEDGE THAT GOOD DATA PROCESSING PROCEDURES DICTATE THAT ANY PRODUCT BE THOROUGHLY TESTED WITH NON-CRITICAL DATA BEFORE RELYING ON IT. YOU ASSUME THE ENTIRE RISK OF USING THE PRODUCT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
YOU ACKNOWLEDGE THAT YOU HAVE EXERCISED YOUR INDEPENDENT JUDGEMENT IN LICENSING THE PRODUCT AND HAVE NOT RELIED ON ANY REPRESENTATION MADE BY OUTBYTE WHICH HAS NOT BEEN STATED EXPRESSLY IN THIS AGREEMENT OR UPON ANY DESCRIPTIONS OR ILLUSTRATIONS OR SPECIFICATIONS CONTAINED IN ANY DOCUMENT INCLUDING PUBLICITY MATERIAL PRODUCED BY OUTBYTE.
OUTBYTE SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES MADE IN REGARDS TO THE AMOUNT OF PERFORMANCE, STABILITY, PRIVACY OR SECURITY IMPROVEMENT PROVIDED BY THE PRODUCT. A SIGNIFICANT AMOUNT OF EFFORT WAS INVESTED IN CREATING THE PRODUCT THAT WILL BENEFIT THE CUSTOMER HOWEVER THE ULTIMATE BENEFIT ON EACH COMPUTER VARIES. FURTHER, OUTBYTE MAKES NO CLAIM OF PARTICULAR DEFECT, UNDERPERFORMANCE OR DEFICIENCY IN RESPECT TO YOUR COMPUTER SYSTEM AND ANY SUCH CLAIM IS THAT OF A POTENTIAL IMPROVEMENT THAT MAY NOT BE REALIZED ON A PARTICULAR COMPUTER.
BY USING THE PRODUCT, YOU WARRANT THAT YOU UNDERSTAND AND AGREE THAT THE PRODUCT IS NOT DESIGNED OR LICENSED FOR MISSION CRITICAL USE, INCLUDING WITHOUT LIMITATION NUCLEAR FACILITIES, AIRCRAFT COMMUNICATION OR NAVIGATION SYSTEMS, AIR TRAFFIC CONTROL, WEAPONS OR LIFE SUPPORT SYSTEMS, OR ANY SUCH ENVIRONMENT WHERE A DEFECT OR FAILURE IN THE PRODUCT MAY RESULT IN INJUR, INJURY TO PERSONS OR PHYSICAL DAMAGE.
THE PRODUCT IS A SYSTEM UTILITY AND AS SUCH CAN INTRODUCE IRREVERSIBLE CHANGES TO THE SYSTEM ON WHICH IT IS RUN. IT IS NOT ALWAYS POSSIBLE TO PREDICT THE SITUATIONS IN WHICH THE PRODUCT IS RUN AND THE OUTCOME OF ITS OPERATION AND THEREFORE YOU AGREE TO PERFORM A COMPLETE SYSTEM BACKUP INCLUDING PERSONAL DATA PRIOR TO USING THE PRODUCT. YOU ALSO AGREE TO ASSUME ALL RESPONSIBILITY FOR CORRECTING OR REVERSING CHANGES MADE BY THE PRODUCT IF REQUIRED.
OTHER THAN IMPLIED BY LAW, THE WARRANTIES IN THIS CLAUSE REPRESENT ALL OF THE WARRANTIES GIVEN BY OUTBYTE AND NO TERM OR WARRANTY WILL BE IMPLIED.
The problems detected and displayed by the Product are the result of the operation of algorithms developed based on the knowledge of computer experts. While the Product is often effective at identifying and repairing issues negatively affecting system performance, stability, privacy, security and other areas, there are numerous factors negatively affecting any particular computer system that the Product may not be able to identify or repair. As such you acknowledge and agree that computer performance and other areas may not improve until all problems affecting these areas are addressed. Sometimes these may be hardware issues that may not be addressed by a software solution at all.
The Product may detect issues naturally occurring during routine use of the operating system. Some issues may not pose privacy or security risk or have a signiﬁcant impact on the system performance and operation while other issues may consistently reappear and end up being repeatedly detected by the Product.
The Product may label certain issues as high risk / high severity / high impact or similar. This is done for your convenience and is based on the expert knowledge to date. The label may not accurately predict or describe the impact an issue may have on your computer system. Computer systems are inherently very complex and even a fresh install of an operating system may contain broken registry shortcuts, abandoned ﬁles and other items that may be ﬂagged by the Product. In some rare cases, the Product may identify and mark for deletion certain ﬁles, folders, registry entries, settings and other items that may be critical for the operation of your computer. You acknowledge that it is your responsibility to review the scan results presented to you by the Product and decide if you want to proceed with repair. Outbyte therefore is not responsible for any damages to your computer or operating system, or loss of personal data or settings.
Certain software or services may be included, bundled, installed by or referenced by the Product, Outbyte websites, documentation or e-mail correspondence («Third Party Products»). Outbyte acts solely as a distributor or an advertising channel for Third party Products. Such Third Party Products may be subject to different licence terms. Outbyte makes no representations or warranties regarding Third Party Products. By accepting this Agreement you also agree that Outbyte is not responsible for any consequence of you installing and using Third Party Products. You will look solely to the Third Party Product providers for all such claims.
Outbyte may offer you live support (also referred to as technical support, live assistance and so on) over the phone by showing live support phone numbers on the web site, in the Product and in e-mail correspondence. When calling in to our live support you may be offered one time, yearly or other support packages for an additional fee. These offers may come from Outbyte or one of the third parties Outbyte contracts in order to offer live support to its customers. By calling in to our live support you agree that you will read the appropriate terms and conditions before you accept any offer or pay for any support package offered to you.
Problem diagnosis and assistance over the phone may require a technician logging in to your computer and you agree that by using live support, you are authorising Outbyte (and third parties it contracts to offer live support) to access and control your computer, to conﬁgure your computer and devices, to delete ﬁles and folders deemed harmful or unnecessary, alter registry entries, install or remove device drivers or other packages, modify browser and Internet settings, use third party software for the purposes of diagnosis, repair and assistance, and make other changes required to offer you assistance, and you agree that you will not hold Outbyte liable for any harm or damage this may cause. Outbyte does not guarantee against the loss of data and you are solely responsible for backing up and safely storing all information, ﬁles and settings on your computer and devices. Technicians may use their expert knowledge or software in order to diagnose and repair your computer, but they may not be able to ﬁnd or repair all issues that may affect the operation of your computer and you therefore acknowledge that the results may vary and are not guaranteed.
You also acknowledge and agree that while Outbyte makes reasonable effort to limit access by technicians to your personal data, by nature of providing the live support services, technicians may come across personal or private information on your computer. You agree that you will not hold Outbyte liable for technicians gaining knowledge of that information or potentially transmitting any information to Outbyte servers.
Subscribers are entitled to an unlimited number of telephone support requests during the Live Support subscription period unless they purchased a one-time only ﬁx. Support sessions are limited to technical support questions only. Outbyte reserves the right to terminate your Live Support subscription immediately if Outbyte determines, in its sole discretion, that you are abusing the Live Support services. Only personal use of the Live Support is allowed and the licence to use Live Support is non-transferrable.
You may not, without the prior written approval of Outbyte, disclose Conﬁdential Information (as deﬁned below). You will not be in breach of this Agreement in circumstances where you are legally compelled to disclose Conﬁdential Information.
You must take all reasonable steps to ensure that you, your employees and agents, and any sub-contractors engaged for the purposes of this Agreement, do not disclose Conﬁdential Information.
You may disclose Conﬁdential Information:
This clause will survive the termination of this Agreement.
When you purchase the Product you are purchasing a subscription to the product for a ﬁxed term. Unless this Agreement is terminated, Outbyte will automatically renew the subscription at the end of each subscription term for another period (Renewal Term) by directly charging your account the then current renewal price. If we are unable to charge your account, your subscription and therefore your ability to use the Product may terminate without further notice to you. All notices regarding your subscription will be sent to your last email of record. To cancel your subscription without your account being charged for the next Renewal Term, you must do so before the end of the subscription term. To cancel your subscription or ask for a refund, contact Outbyte via the company website.
13.1 You acknowledge that the Product is the subject of intellectual property rights including copyright (the «Rights»). You shall not during or any time after the termination of this Agreement permit any act (including without limitation copying the Product except as permitted in this Agreement) which infringes those Rights. For the avoidance of doubt the Licence granted to you under this Agreement does not give you any right to use any trademarks of Outbyte associated with the Product. You will fully indemnify Outbyte against all liability, cost and expenses (including legal costs) which may be incurred by Outbyte as a result of your breach of the provisions of this clause.
13.2 Outbyte Software may include a JSON serializer from Newtonsoft.Json, which is subject to the following terms: Copyright (c) 2007 James Newton-King Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions: The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software. THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE. The term "Software" in section 13.2 refers solely to Newtonsoft.Json and is not to be confused with the same term used throughout the rest of this document.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, OUTBYTE’S TOTAL LIABILITY TO YOU IN RESPECT OF ALL CLAIMS ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE PRODUCT INCLUDING CLAIMS UNDER ANY INDEMNITY OR FOR NEGLIGENCE SHALL BE STRICTLY LIMITED TO THE FEE PAID UNDER THIS LICENCE.
OUTBYTE SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL LOSS OR DAMAGE INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION, LOST PROFITS OR FOR PUNITIVE OR EXEMPLARY DAMAGES EVEN IF OUTBYTE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IF ANY CONDITION OR WARRANTY IS IMPLIED INTO THIS AGREEMENT BY LAW AND CANNOT BE EXCLUDED, THE LIABILITY OF OUTBYTE FOR BREACH OF THE CONDITION OR WARRANTY IS LIMITED TO THE REPAIR OR REPLACEMENT OF THE GOODS IN THE CASE OF GOODS AND TO THE SUPPLYING OF THE SERVICES AGAIN IN THE CASE OF SERVICES.
You agree to defend Outbyte, its afﬁliates and its and/or their respective successors and assigns, as well as their respective ofﬁcers, directors, employees, agents, licensors, representatives, operational service providers and suppliers against any and all claims, demand and/or actions and indemnify and hold Outbyte, its afﬁliates and its and/or their respective successors and assigns, as well as their respective ofﬁcers, directors, employees, agents, representatives, suppliers, licensors and contractors harmless from and against any and all losses, damages, costs and expenses (including reasonable attorneys’ fees), resulting from your breach or violation of this Agreement, infringement, misappropriation or your violation of the rights of any other party, your violation or non-compliance with any law or regulation, or your alteration or export of the Product. Outbyte reserves the right to assume, at its expense, the exclusive defense and control of any claims or actions and all negotiations for settlement or compromise, and you agree to fully cooperate with Outbyte upon its request.
This Section 16 shall apply to the maximum extent permitted by applicable law. If the laws of your jurisdiction prohibit the application of some or all of the provisions of this Section, such provisions will not apply to you. Hereby you agree to have any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Product (collectively, «Disputes») settled by binding individual arbitration before the American Arbitration Association («AAA») under the Federal Arbitration Act («FAA»), and not to sue in court in front of a judge or jury. The arbitrator’s decision will be ﬁnal except for a limited right of appeal under the FAA.
Exception. Each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
Class Action Waiver. You agree that combining individual proceedings without the consent of all parties, class action lawsuits, class-wide arbitrations, private attorney-general actions, and any other proceeding where someone acts in a representative capacity, against Outbyte and any of Outbyte’s subsidiaries, related companies, afﬁliates, agents, employees, predecessors in interest, successors and assigns under this Agreement or any prior agreements between us, shall not be allowed.
Arbitration Procedures. If you have a Dispute, you agree to send your claim to Outbyte customer support ﬁrst and give us 30 days to try and resolve it. If the Dispute is not resolved after 30 days, you may start arbitration. Any Dispute must be ﬁled for arbitration within 1 year from the date when the event giving rise to the Dispute occurred. The AAA will conduct any arbitration under its Consumer Arbitration Rules. To start arbitration, submit the form available at aka.ms/arbitration to the AAA; mail a copy to Outbyte. In a Dispute involving USD10,000 or less, any hearing will be by telephone unless the arbitrator ﬁnds good cause to hold an in-person hearing instead. The arbitrator may award declaratory or injunctive relief only to you individually to satisfy your individual claim.
Right to Opt Out. If you do not wish to be bound by this Arbitration and Class Action Waiver provision, you must notify Outbyte in writing within 30 days of the date of your product order via email to Outbyte customer support or by mail at the address in this Agreement. Your written notiﬁcation must include your name, address and your Outbyte software order number, and must contain a clear statement that you do not wish to resolve Disputes with Outbyte through arbitration. Your decision to opt out of this arbitration provision will have no adverse effect on your relationship with Outbyte or the delivery of products or services to you by Outbyte. If you do not provide Outbyte with an Opt-out Notice within the 30 day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth under Exception in this clause.
Severability. If any part or all of this arbitration provision or class action waiver is found to be unenforceable as to all or some parts of a Dispute, the remaining parts of this provision will still apply and the remaining parts of the Dispute will proceed in arbitration.
THIS PROVISION SHALL SURVIVE TERMINATION OF THE END USER LICENCE AGREEMENT.
A party may terminate this Agreement immediately by written notice if:
Upon termination of this Agreement you must immediately cease using the Product and destroy all copies of the Product.
You may not assign this Licence without the written consent of the other party (such consent not to be unreasonably withheld or delayed).
Any express statement of a right of Outbyte under this Agreement is without prejudice to any other rights of Outbyte expressly stated in this Agreement or existing at law.
The obligations of the parties under this Agreement are suspended during the continuance of any Force Majeure Event to the extent that those obligations are affected by the Force Majeure Event.
You submit to the jurisdiction of the courts exercising jurisdiction at the place of incorporation of Outbyte or its afﬁliates, provided however, that Outbyte retains the right to pursue any litigation arising from your use of the Product in your national courts.
All notices must be in writing and addressed includes the case of notices to Outbyte to its registered ofﬁce.
Each party must take all steps as may be reasonably required by the other party to give effect to the terms of this Agreement and transactions contemplated by this Agreement.
This Agreement contains the entire agreement between the parties with respect to its subject matter.
Each party acknowledges that in entering into this Agreement it has not relied on any representation or warranties about its subject matter except as provided in this Agreement.
No delay, neglect or forbearance on the part of any party in enforcing against any other party any obligation under this Agreement will operate as a waiver or in any way prejudice any right under this Agreement.
If any provision of this Agreement is held to be invalid, illegal or unenforceable, this Agreement will continue otherwise in full force and effect apart from such provision which will be taken to be deleted.
Any variation of this Agreement must be in writing signed by each party.
In this Agreement, unless the context otherwise requires:
«Conﬁdential Information» means the conﬁdential information which relates to the subject matter of this Agreement and includes information relating to:
«Force Majeure Event» means any event not within the control of a party whose obligations are affected;
In this Agreement, unless the context otherwise requires: