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TAGA Engineering Software Limited (“TAGA”) end-user license terms

IMPORTANT – BEFORE INSTALLING OR USING THE TAGA SOFTWARE, CAREFULLY READ THE FOLLOWING LEGAL TERMS (“TERMS”). BY SELECTING THE ACCEPT OPTION, OR BY INSTALLING, COPYING OR USING THE SOFTWARE OR SOFTWARE-BASED SERVICE YOU (EITHER AN INDIVIDUAL OR AN ENTITY) AGREE THAT YOU HAVE READ THESE TERMS, UNDERSTAND THEM AND AGREE TO BE LEGALLY BOUND BY THEM. IF YOU DO NOT AGREE TO ALL OF THE TERMS, DO NOT INSTALL, USE OR COPY THE SOFTWARE.

These Terms cover any and all TAGA programs and software based services and web applications licensed by or made available to you, including support tools, web portals directly supporting your use of the Software, related documentation and any updates and upgrades to any of above (together the “Software”). These Terms also apply to such programs that are made available to you under the purchased license or related service agreement where these Terms are specifically appended. You acknowledge and accept that the Software is subject to specific limitations such as purpose of use and certain technical requirements including but not limited to operating system, storage space, geographical location or network connectivity.

Commercial license

Subject to the payment of applicable license fees and subject to the following terms and conditions, you have been granted a non-exclusive, non-transferable right to use the specified Software for a specified time period as separately agreed between yourself and TAGA. TAGA and its licensors reserve any and all rights not expressly granted to you.

You may:

1. install and use the Software only on as many units (typically handheld devices, personal computers, servers or other hardware, jointly referred to as “Device”) as stated in the Software, TAGA License Certificate, applicable invoice, product packaging or agreement where these Terms have been appended. If the Software and/or its services are shared through a network you must have a licence for the total number of users whom the Software provides services to. In such cases you may install the Software on as many units as needed;
2. create copies of the Software for installation and backup purposes only; and
3. extend the number of licenses by purchasing more licenses.

Free license and evaluation license

This applies when you use, download or install a trial or beta version of the Software or you are granted a license by TAGA or its distributor expressly for evaluation purposes. Such licenses are always granted on non-exclusive and non-transferable basis. Software (as well as related services) licensed under these schemes are more prone to changes than those licensed under commercial licenses and may have enhanced usage analysis. You acknowledge that because the license is non-chargeable; (i) TAGA have no obligation to provide support or maintenance services, and (ii) TAGA may at any time terminate your license to the Software, the availability thereof, any of its features, limit or readjust the quota available to you or convert free features to chargeable. Even if you purchase added features to such Software, the above applies to the whole. The above changes or a prolonged period of inactivity may also lead to deletion of or limiting the access to your content managed via the Software. Where such changes affect your use of the Software, you shall be separately notified. This type of license is granted on a time-limited basis and is granted for the sole purpose of evaluating the Software and only for a specified trial period, which will begin on the date that the Software is first downloaded by or delivered to you. After the specified time period you must either buy the Software license from TAGA or its distributor, or destroy and stop using the Software.

License limitations

You may not:

1. install and use the Software against these Terms, the TAGA License Certificate or other related documentation;
2. distribute copies of the Software to a third party, electronically transfer the Software to a computer belonging to a third party, or permit a third party to copy the Software, except and to the extent where such activity is expressly stated in related documentation;
3. modify, adapt, translate, rent, lease, resell, distribute or create derivative works based upon the Software and/or related files (including but not limited to databases, descriptions or any other content) or any part thereof;
4. decompile, reverse engineer, disassemble, or otherwise reduce the Software and/or related files (including but not limited to databases, descriptions or communications between applications) to any human-perceivable form (except to the limited extent permitted under mandatory copyright legislation) as the Software contains or may contain trade secrets of TAGA;
5. use the documentation for any purpose except to support your use of the Software;
6. disclose the license authorisation code provided for the application installation (including but not limited to subscription key) to any third party;
7. use the Software or any portion thereof to implement any product or service to operate on or in connection with the Software for any other purpose than for which the Software is provided.

Title

Title, ownership rights, and intellectual property rights in the Software shall remain with TAGA. The Software is protected by copyright laws and international copyright and other intellectual property treaties.

Open source licenses

You acknowledge that certain components of the Software may be covered by so-called “open source” software licenses (“OSS Licenses”), which means any software licenses approved as open source licenses by the Open Source Initiative or any substantially similar licenses, including without any limitation any license that, as a condition of distribution of the software licensed under such license, requires that the distributor make the software available in source code format (“Open Source Components”). In respect of the Open Source Components, the following stipulations shall apply; i) to the extent expressly required by the OSS licenses, the terms of relevant OSS licenses (including in particular the scope of license as well as disclaimers of warranties and liabilities) shall apply to the respective Open Source Component(s) in lieu of these Terms and ii) to the extent the applicable terms of OSS Licenses prohibit any of the restrictions in these Terms such restrictions will not apply to respective Open Source Components. Such OSS Licenses relating to respective Open Source Components are located at the installation directory of the Software or in such other place as indicated in the Software, when so required by the terms of OSS Licenses.

Limited warranty and disclaimers

Disclaimer of Warranty on Software. THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT ANY WARRANTY. TAGA, ITS LICENSORS AND DISTRIBUTORS DO NOT GUARANTEE THE SOFTWARE OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. TAGA AND ITS LICENSORS AND DISTRIBUTORS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF TITLE, AVAILABILITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. YOU ASSUME THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE AND RELATED DOCUMENTATION.

Complete Statement of Warranty. The limited warranty on media provided in the paragraph above is the only warranty that is made by TAGA. No oral or written information or instructions given by TAGA, its dealers, distributors, agents, or employees shall create a warranty or in any way increase the scope of the foregoing limited warranty and you may not rely on any such information or instructions. Some jurisdictions do not allow the limitation or exclusion of express or implied warranties, so the above exclusion may not apply to you, and you may have other rights, which may vary from jurisdiction to jurisdiction.

Limitation of liability

Limitation of Liability for Certain Categories of Damages. IN NO EVENT AND UNDER NO LEGAL THEORY, INCLUDING BUT NOT LIMITED TO TORT OR CONTRACT, SHALL TAGA, ITS EMPLOYEES, ITS LICENSORS, ITS DISTRIBUTORS OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOST OR DAMAGED DATA, FILES, DEVICE OR APPLICATION FAILURE OR MALFUNCTION OR OTHER COMMERCIAL OR ECONOMIC LOSS, ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE OR RELATED DOCUMENTATION, EVEN IF TAGA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Limitation of Aggregate Liability. TAGA’S, ITS LICENSORS’ OR ITS DISTRIBUTORS’ MAXIMUM AGGREGATE LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY YOU FOR THE SOFTWARE. IN CASE OF DAMAGE RESULTING FROM A FAILURE OF THE SOFTWARE LEADING TO LOSS, CORRUPTION, UNAUTHORISED DISCLOSURE OR EXTENDED UNAVAILABILITY OF THE CONTENT, THE LIABILITY SHALL BE EXPRESSLY LIMITED TO THE AMOUNT PAID FOR YOUR LICENSE TO THE SOFTWARE FOR SIX MONTHS IMMEDIATELY PRECEDING SUCH FAILURE.

Unalienable Consumer Rights, Beneficiaries to Terms. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages so the above limitation or exclusion may not apply to you or may apply to you only in part. Nothing contained in these Terms shall prejudice the statutory rights of any party dealing as a consumer. TAGA is acting also on behalf of its employees, distributors, licensors, suppliers and affiliates to disclaim, exclude and restrict obligations, warranties, and liability as provided in these Terms, but in no other respects and for no other purpose.

Limitation of Liability under German and Austrian Laws. In respect of licenses purchased by consumers residing in Germany or Austria, the following limitations of liabilities shall apply in lieu of sections 1 and 2 above: Concerning claims for damages, claims for compensation of expenses and other liability claims, whether arising in contract, tort, breach of statutory duty or otherwise under this license the following applies: TAGA, its licensors, its distributors or its suppliers shall be liable without restriction for i) damage caused intentionally or through gross negligence, ii) for claims according to the German/Austrian Product Liability Act and iii) in the case of violating life, body or health. In case of simple negligence, the following applies: TAGA, its licensors, its distributors or its suppliers shall only be liable insofar as it has breached an essential contractual obligation (cardinal contractual obligation). This liability shall be restricted to the contractually typical and foreseeable damage in the case of material and pecuniary damages.

Indemnity. You shall indemnify, defend and hold harmless TAGA, its licensors, distributors, suppliers (collectively the “Indemnitees”) against (i) any and all costs, charges, claims, damages, liabilities incurred and/or proceedings taken against any of the Indemnitees, including without limitation outside legal counsel and consultants fees, resulting from illegal conduct and/or violation of rights of third parties, and/or (ii) any damage that you may cause through your use of the Software.

Security and Access to Content. You are informed that while efforts are taken to make access to and transfer of content secure against third party intrusion, TAGA provides no guarantees against intrusions due to unlawful interception of data transfers, security breaches on data repositories, incorrect or incomplete implementations of security measures on user Devices or browsers. You are responsible for managing your content, including the access permissions to the content. When you are sharing your content, anyone receiving your copy of the sharing link may access the files you have shared. TAGA or its distributors shall not be held liable for unauthorised access by third parties to the content you share or store through your use of the Software.

Privacy

Personal Data. To provide you with the services related to the Software and for customer relationship purposes, TAGA may need to collect and process personal data that relates to your use of the Software and other related services. Such collected personal data typically consists of i) data you actively send to us (e.g. contact / registration information, information disclosed to solve a support issue) and/or ii) data automatically collected by the Software or triggered by your use of particular features (e.g. license/ Device/ software information, phone number, information on your user account activity, geographic location of your Device).

Technical Data and Security Data. For TAGA to provide you with the services related to the Software and to further develop them; the Software has to collect data relating to software applications, your Device, and use of the above. Such data is typically collected in the form of object security data, analysis data, statistics, file metadata, location data and other similar data. This type of data is aggregated or otherwise made anonymous whenever feasibly possible.

Transfers. TAGA may further disclose or transfer any of the above data to its affiliates, sub-contractors, distributors and operator partners. Such parties may be located in the EEA or outside the EEA. Any transfer of data is done in a secure manner. TAGA may also process and disclose data where it is necessary to do so to pursue legitimate interests in accordance to applicable laws.

More Information. The collected data varies per Software. You can find more detailed information on personal data processing and contact information in relevant TAGA privacy policies. TAGA privacy policies can be found in the privacy-section of the TAGA website.

General

Suitability. The Software is subject to certain functional restrictions as informed by TAGA (or by TAGA’s distributor from whom you have acquired this license) from time to time. You hereby acknowledge and confirm that you have checked its suitability for your own requirements before registering for the Software.

Changes. TAGA are constantly improving its services. TAGA reserve the right to modify features or functionality of the Software. TAGA do such things to provide you with better products or services, to adjust the Software to changes in the market or regulations, to take into account any subsequent technical constraints or for other similar, valid reasons. Hence, TAGA need to upgrade and make changes to the Software from time to time. Such changes may include adding new features or dropping existing features. You should use the latest version of the Software for optimised security and usability. TAGA reserve the right to end the maintenance and support for certain versions or for certain operation systems of the Software in accordance to its product life cycle practices. As TAGA Software may reliant on updates, this may lead to Software becoming inoperable. Use of Software, for which the maintenance is discontinued, is not recommended and such use is entirely at your own responsibility. As the Software is likely to evolve and change during your subscription, TAGA may need to revise these Terms in connection of update and the revised Terms shall automatically apply to the corresponding versions of the Software distributed with the revised Terms. If any part of these Terms is found void and unenforceable, it will not affect the validity of rest of the Terms, which shall remain valid and enforceable.

Additional Terms. The Software may contain web applications or web portals (‘sites’). The use of such sites may be subject to additional terms. You agree to review such sites for additional terms of use and only use such sites accordingly. Such sites may also be those of TAGA’s distributor or of other third parties. TAGA have no liability whatsoever on any third party sites.

Availability. You are informed and hereby accept that all or part of the Software may be temporarily unavailable / non-operational for repairs, upgrades, maintenance or for reasons beyond TAGA’s reasonable control (force majeure). TAGA, its licensors or its distributors shall not be held liable for the consequences of such interruptions and shall undertake to restore the availability / operation of the Software as rapidly as reasonably possible, depending on the technical constraints encountered.

Termination. Without prejudice to any other rights of termination or expiration in these Terms or under contract or law; your license to the Software will end immediately without notice if you are in breach of any of these Terms or use the Software’s functions for purposes other than those indicated in official documentation. Where TAGA observes that you are using the Software i) in breach of these Terms, ii) other applicable terms or iii) its intended purpose; TAGA reserve the right (i) not to renew your license, and/or (ii) terminate the license. In case of termination of the agreement between TAGA and TAGA’s distributor providing you with the Software, TAGA or its distributor shall have the option to notify you on premature termination of your license. You shall not be entitled to a refund, damages or other compensation from TAGA because of such termination. The Terms on restrictions on use shall survive any termination.

Export Restrictions. You acknowledge and agree that the Software may be subject to restrictions and controls imposed by national laws and regulations, including but not limited to European Union export regulations or the United States Export Administration Act (collectively “Export Rules”). You agree and certify that neither the Software nor any direct product thereof is being or will be acquired, shipped, transferred, or re-exported, directly or indirectly, into any country for which such export is prohibited under the Export Rules and the regulations thereunder, nor will it be used for any purpose prohibited by the same. By using the Software, you are acknowledging and agreeing to the foregoing, and you are representing and warranting that you will comply with the Export Rules when either exporting or re-exporting or importing the Software or any underlying information technology. Further, you represent and warrant that you are not a national of any US embargoed country, or a party listed in the U.S. Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals.

U.S. Government License Rights. If this license is acquired for or on behalf of the United States of America, its agencies and/or instrumentalities (“U.S. Government”), you acknowledge that the Software and the documentation are “commercial computer software” and respectively “commercial computer software documentation” as those terms are defined for purposes of the Federal Acquisition Regulations (FARs) in the case of procurement by civilian agencies (48 C.F.R. 2.101) and the Department of Defense Federal Acquisition Regulation Supplement (DFARS) in the case of procurement by units of the Department of Defense (48 C.F.R. 252.227-7014(a)(1) and (5)). Consistent with 48 C.F.R. 12.212 of FARs and 48 C.F.R. 227.7202 of DFARS and other applicable regulations, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Software and documentation by or for the U.S. Government shall be governed solely by these Terms and shall be prohibited except to the extent expressly permitted by these Terms.

Governing Law. These Terms shall be governed under the laws of New Zealand without regard to conflict of laws rules and principles and without regard to the United Nations Convention of Contracts for the International Sale of Goods. The courts of New Zealand shall have the exclusive jurisdiction and venue to adjudicate any dispute arising out of these Terms. In respect of licenses purchased by consumers residing outside New Zealand these Terms may be governed by the mandatory local laws of such jurisdictions. Where TAGA should elect not to insist upon enforcing its rights in line with these Terms, this shall not be interpreted as a waiver of TAGA’s right to enforce the same in the future.