ReMarks End User Licence Agreement

 

This Agreement is made on the date the Licensee downloads or otherwise acquires a copy of ReMarks.

Parties:

REMARKSPDF PTY LIMITED, ABN 65 116 169 059 (“ReMarksPDF Pty Ltd”)

ReMarksPDF Pty Limited

27 Coutts Street

Bulimba QLD 4171

Telephone: +61 7 3399 4010

Facsimile: +61 7 3399 4010

Email: stephen.colbran@remarkspdf.com

                                                                                                           

and

A person or entity wishing to use ReMarks (“Licensee”)

Background:

A.         ReMarksPDF Pty Ltd owns ReMarks.

B.         The Licensee wishes to use ReMarks for the Approved Purposes.

C.         The Licensee has requested and ReMarksPDF Pty Ltd has agreed to provide a licence of ReMarks to the Licensee on the terms and conditions of this Agreement.

Attention

By purchasing a licence or using a Trial version of ReMarks the Licensee is agreeing to be bound by the terms and conditions of the following Licence Agreement and those of the Artifex JBIG2 encoder/decoder (Item E). The Licensee must not use ReMarks unless they agree to these terms and conditions. If you do not agree to the terms and conditions of this Agreement, do not use ReMarks. You must promptly erase any downloaded version of ReMarks.

Operative provisions:

1.         Definitions

1.1       In this Agreement the following terms have the following meanings unless the contrary intention appears:

 

Approved Purposes means the purposes described in Item A of the Schedule;

Date of this Agreement means the date ReMarksPDF is downloaded by the Licensee;

 

Licensee Content means information that the Licensee inputs into ReMarks;

 

Licence Fee means the fees for ReMarks specified in Item C of the Schedule;

 

Licence Term means the term specified in Item D of the Schedule;

 

Prescribed Terms means the terms, conditions and warranties implied by law into contracts for the supply of goods and services;

 

ReMarks means ReMarksPDF (a PDF markup editor)and the ReMarksPDF Blackboard Building Block, ReMarksPDF Moodle Plugin, which ReMarksPDF Pty Ltd has made available to the Licensee, updates, the media on which the Licensee received ReMarks, and also includes any ReMarks Trial version;

 

Trial means where the Licensee has downloaded or received a Trial version of ReMarks. A Trial lasts the period stated in Schedule Item A from the date of this Agreement.

1.2       In this Agreement, unless otherwise indicated:

                             (a)   a reference to this Agreement or another instrument includes any variation or replacement of either of them;

                              

                             (b)   a reference to a convention, statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

                              

                             (c)   the singular includes the plural and vice versa;

                              

                             (d)   a reference to one gender includes all genders;

                              

                             (e)   the words “person” and “you” includes a firm, a body corporate, an unincorporated association or an authority; and

                              

                             (f)   where a word or phrase is grammatically defined in this Agreement, other parts of speech and grammatical forms of that word or phrase have the corresponding meanings.

 

1.3       Headings are inserted for convenience and do not affect the interpretation of this Agreement.

 

2.         Licence

 

2.1     ReMarks is licensed not sold. This Agreement only gives the Licensee some rights to use ReMarks. ReMarksPDF Pty Ltd reserves all other rights. ReMarksPDF Pty Ltd grants the Licensee a non-exclusive, non-transferable, revocable licence to use ReMarks for the Approved Purposes and on the terms and conditions of this Agreement.

2.2        The Licensee agrees that it may not disclose, use or reproduce ReMarks for any purpose other than the Approved Purposes, unless otherwise agreed in writing with ReMarksPDF Pty Ltd.

 

3.         Licence Fees

 

3.1   In consideration of the licence granted by clause 2.1, the Licensee must pay the Licence Fees to ReMarksPDF Pty Ltd via PayPal or other agreed payment method within 30 days of the date of this Agreement.

3.2       Where the Licensee is using a Trial version of ReMarks no Licence Fee is payable for the period of the Trial.

3.3       A Trial lasts the period stated in Schedule Item A from the date of this Agreement..

 

4.         Rights of Use

 

4.1       The Licensee may:

                        

(a) use ReMarks for the Approved Purposes;

                 

(b) reproduce ReMarks as required for normal internal back-up procedures, providing all readme files and notices are retained; and

     

(c) modify ReMarks only by adding Licensee Content to the extent required for the

 customisation of ReMarks for use by the Licensee’s own students.

 

4.2       The Licensee must not, and must not allow or cause any other person to:

                         

(a) print, copy, publish, or reproduce ReMarks by any means or in any form other than in accordance with clause 4.1;

                           

                         

(b) give, lease, assign, license, sub-license, transfer, distribute, disclose, disseminate, sell, or publish ReMarks in any form to any other person or attempt to do any of these acts without the written authority of ReMarksPDF Pty Ltd; or

              

                         

(c) work around any technical limitations in ReMarks;

                           

                         

(d) reverse engineer, decompile or disassemble ReMarks except and only to the extent allowed by applicable law;

                           

(e) use Remarks with commercial software hosting services;

 

(g) separate components of ReMarks; or

 

(h) alter, change, remove or obscure any notices or other indications (including copyright or patent notices) as to ownership of ReMarks or third party components used in ReMarks.

 

4.3       ReMarks and any updates or documentation provided by ReMarksPDF Pty Ltd to the Licensee remain the property of ReMarksPDF Pty Ltd and must be either deleted, destroyed or returned to ReMarksPDF Pty Ltd by the Licensee at the earlier of either the expiration of the Licence Term or termination of this Agreement.

4.4        The Licensee must immediately notify ReMarksPDF Pty Ltd if the Licensee becomes aware of any breach of this Agreement and shall give ReMarksPDF Pty Ltd all necessary assistance in connection with any proceedings ReMarksPDF Pty Ltd may institute relating to such breach.

 

5.         Property

 

5.1       The Licensee agrees that the licence granted by clause 2.1 does not make the Licensee the owner of ReMarks nor does it cause any transfer or assignment of any proprietary rights in ReMarks to the Licensee. Ownership of ReMarks and all proprietary rights in ReMarks remains with ReMarksPDF Pty Ltd or the person or organisations from whom ReMarksPDF Pty Ltd obtained ReMarks or any part of ReMarks.

5.2        The Licensee agrees that any modifications made to ReMarks by the Licensee under clause 4.1(c) do not entitle the Licensee to ownership in any part of ReMarks. However, the Licensee will retain ownership of all Licensee Content.

 

6            Warranties and Limitation of Liability

 

6.1       ReMarksPDF Pty Ltd warrants that as at the date of the Agreement, it has the rights, power and authority to enter into this Agreement and to grant to the Licensee the rights to use ReMarks in accordance with the terms of this Agreement.

6.2       If liability of one party to the other party for breach of a Prescribed Term is capable of exclusion it is hereby excluded.

6.3       If liability of one party to the other party for breach of a Prescribed Term is capable of limitation it is hereby limited to the resupply of ReMarks.

6.4       Except as provided by Prescribed Terms (if any), which are not capable of exclusion or limitation, or as expressly set out in this Agreement:

                         

(a)    ReMarksPDF Pty Ltd makes no warranties in relation to ReMarks, including warranties as to performance or fitness for purpose; and

                           

                         

(b)    The Licensee will not under any circumstances have any cause of action against or right to claim or recover from ReMarksPDF Pty Ltd for or in respect of any loss, damage or injury (including without limitation any loss of profit, indirect or consequential loss, damage or injury) arising from the supply of or use of ReMarks or any breach of the terms or conditions of this Agreement.

                           

(c)    The Licensee is entirely responsible for determining the suitability of ReMarks for their purposes and for the use they make of ReMarks.

 

(d)     No oral or written information or advice given by ReMarksPDF Pty Ltd, its dealers, distributors, agents or employees shall create or extend any existing warranties, and the Licensee must not rely on any such information or advice unless in writing and signed by an authorized representative of ReMarksPDF Pty Ltd.

 

6.5       The Licensee agrees to indemnify ReMarksPDF Pty Ltd from and against liability and all loss and damage of any kind whatsoever caused directly or indirectly by any claim or action against ReMarksPDF Pty Ltd arising directly or indirectly out of the Licensee’s use of ReMarks or any breach by the Licensee of the terms and conditions of this Agreement.

6.6        The Licensee acknowledges that ReMarksPDF Pty Ltd will deliver ReMarks, together with any associated documentation, and that ReMarksPDF Pty Ltd assumes no responsibility for providing any technical support or training in respect of the Licensee’s implementation of ReMarks. Technical support or training (beyond the provision of Flash training films) may be the subject of a separate agreement between ReMarksPDF Pty Ltd and the Licensee.

 

7.         Term and Termination

 

7.1     The licence granted by clause 2.1 commences on the date of this Agreement and continues for the Licence Term.

7.2     ReMarksPDF Pty Ltd may terminate this Agreement immediately by giving written notice of termination to the Licensee.

7.3       Termination, completion or expiry of this Agreement for any reason shall not extinguish or otherwise affect:

                         (a)           any rights of either party against the other which:

 

(i)         accrued prior to the time of the termination; or

              

(ii)         otherwise relate to or may arise at any future time from any breach or non-observance of obligations under this Agreement which arose prior to the time of the termination, completion or expiry; or

                           

                          (b)          the provisions of this Agreement which by their nature survive termination (including clauses 4.2, 5, 6, 7 and 8).

 

8.         Confidentiality

The Licensee undertakes to keep secret and protect the confidential nature of all information and documentation provided to it, learnt by it or to which it has or has had access, arising out of or in connection with any aspect of the negotiation or performance of this Agreement including, without limitation, the source code and object code for ReMarks (“Confidential Information”). To this end the Licensee must not use, disclose or in any way communicate to any other person the details of any Confidential Information without the prior written consent of ReMarksPDF Pty Ltd.

9.         Internet based services

ReMarksPDF Pty Ltd may provide Internet-based services with ReMarks. ReMarksPDF Pty Ltd may change or cancel such services at any time.  The following services [9(a) and 9(b)] connect to ReMarksPDF Pty Ltd or service provider computer systems over the Internet. In some cases the Licensee will not receive a separate notice when they connect. The Licensee may decide not to use these services. By using these services a Licensee consents to the transmission of this information:

(a)  Computer information – Internet protocols, which send to the appropriate systems computer information, such as the Licensee’s Internet protocol address, the type of operating system, browser and name and version of the software the Licensee is using, and the language code of the device where the Licensee installed ReMarks. ReMarksPDF Pty Ltd may use this information to make the Internet-based service available to the Licensee.

(b)  Web content features – Features in which ReMarks can retrieve related contents from ReMarksPDF Pty Ltd and provide it to the Licensee. To provide the content, these features send to ReMarksPDF Pty Ltd the type of operating system, name and version of ReMarks the Licensee is using, type of browser and language code of the device where the Licensee installed ReMarks. Examples of these features include clip art, auto comments, auto sounds, templates, online training, online assistance and help. The Licensee may choose not to use these web content features.

 

The Licensee must not use this service in any way that could harm it or impair anyone else’s use of the service. The Licensee must not use the service to try to gain unauthorized access to the service, data, accounts or network by any means.

 

10.       Information

 

Where registration information is collected as part of the installation process or otherwise, the Licensee consents to receiving information by mail or email concerning updates, new releases or other ReMarks related information. The Licensee may notify ReMarksPDF Pty Ltd that they no longer wish to receive ReMarks related information, upon receipt of which ReMarksPDF Pty Ltd will remove the name of the Licensee from the distribution list.

 

11.       General

11.1     This Agreement constitutes the entire agreement of the parties about its subject matter at the date of this Agreement and any previous agreements, understandings and negotiations on that subject matter cease to have any effect.

11.2     No amendment of any part of this Agreement will be valid or have effect unless made by written instrument and signed by both parties.

11.3     If the whole or any part of any clause of this Agreement is illegal or unenforceable, it will be severed from this Agreement and will not affect the continued operation of the remaining provisions of this Agreement.

11.4     The Licensee must not assign any of its rights or interests under this Agreement without the prior written consent of ReMarksPDF Pty Ltd.

11.5     This Agreement shall be governed and construed in accordance with the laws of the State of Queensland, Australia, and the parties agree to submit to the non-exclusive jurisdiction of the courts of that State.

 

12.       Inquiries

12.1     All questions concerning this Agreement shall be directed to www.remarkspdf.com.

 

Schedule

Item A         Approved Purposes

The Approved Purposes are the implementation by the Licensee of ReMarks solely for its own enrolled students. ReMarks is not to be used at other campuses or by associated entities without the written permission of ReMarksPDF Pty Ltd. The Approved Purposes also includes a 60 day Trial of ReMarks.

Item B         ReMarks

ReMarks designed by Professor Stephen Colbran.

ReMarks is part of the ReMarks Feedback Management System.

Item C        Licence Fee

 

Where the Licensee is involved in a Trial of ReMarks no licence fee is payable for the period of the Trial upon delivery of ReMarks to the Licensee  – see clause 3.3.

 

The Annual Site licensee fee, applicable in all other cases, and available Support Services and Training Services is set out in a quote obtainable from ReMarksPDF Pty Ltd.

 

Item D         Licence Term

 

A Trial licence of ReMarks expires after 60 days.

 

The Licence Term, in all other cases, runs for 365 days from the purchase of a licence for the use of ReMarks.

 

Item E          Artifex Software Inc. – Jbig2 Decoder

Product means ReMarksPDF.

Software means JBig2 encoder/decoder – A library of C procedures that implements graphics capabilities as JBIG2 decoder.

End user means the person or entity who licenses the use of ReMarksPDF from ReMarksPDF Pty Ltd.

1.  Only a personal, nontransferable and nonexclusive right to use the Product is granted to an end user.

2.  Artifex Software Inc. retains all title to the Software as incorporated in the Product, and all copies thereof, and no title to the Software, or any intellectual property in the Software, is transferred to such end user.

3.  The end user may not copy: (i) the Product, except for one (1) copy solely for backup or archival purposes and only as necessary to use the Product; or (ii) any Documentation accompanying the Product.  All such copies are the proprietary information of Distributor and its licensors and suppliers and are subject to their copyrights.

4.  The end user agrees not to reverse engineer, decompile or otherwise attempt to derive source code from the Product.

5.  Artifex Software Inc. is an intended third party beneficiary of the end user sublicense and is entitled to enforce it in its own name directly against the end user.

6.  Artifex Software Inc. will not be liable to the end user for any general, special, direct, indirect, consequential, incidental or other damages arising out of the license of the Product even if it has been advised of the possibility of such damages.

7.  Upon termination of the license, the end user will destroy or return to Distributor all copies of the Product.

8.  For United States Government users, the Software and associated Documentation are deemed to be “commercial computer software” and “commercial computer documentation,” respectively, pursuant to DFAR § 227.7202 and FAR § 12.212(b), as applicable.  Use, duplication or disclosure of the Software licensed by this Agreement and any derivative works, as defined by the Copyright Act of 1976 as amended, developed under this Agreement, and any associated Documentation or derivative works thereof, are subject to the restricted rights set forth in the DFAR and FAR, above.

9.  Artifex Software Inc. makes no warranties, express, implied or statutory, regarding the Product and the Software, including without limitation the implied warranties of merchantability and fitness for a particular purpose, or their equivalent under the laws of any jurisdiction.  (This section of the End User License Agreement shall appear in conspicuous, bold capital letters.)