Software EULA

Effective from 01 September 2024

This agreement supersedes all previous versions of Watercom Software Licence Agreements.

This End User Licence Agreement (“EULA”) is a legal agreement between you (“Licensee”) and Kustom Engineering Pty Ltd trading as Watercom (“Company”), the author of all Watercom Software (“Software”), which may include associated media, printed materials, and online or electronic documentation.

If you are agreeing to this EULA not as an individual but on behalf of a company, government body, organisation or other legal entity (“Entity”) then Licensee means the Entity, and you are binding the Entity to this EULA and you agree that you have the authority to do so.

By installing, copying, uploading, or otherwise using the Software, the Licensee agrees to be bound by the terms and conditions set forth in this EULA. If the Licensee does not agree to the terms and conditions set forth in this EULA, then the Licensee may not download, install, upload, copy, or use the Software.

If the Licensee installs the version of the Software covered by this EULA, and also continues to use previous versions of the Software (“Older Software”), the Licensee acknowledges and agrees that use of both the Software and the Older Software will be governed by this EULA, and the version of the EULA that was applicable to the Older Software will no longer apply.

The Company reserves the right to modify the terms of this EULA from time to time and any such modifications will take effect once notified to the Licensee. Notification may include or consist of publishing the modified Agreement on the Company’s website at: www.watercom.com.au and/or notifying the Licensee by e-mail to the latest email address provided by the Licensee to the Company. Other than this, no amendment or modification to this Agreement is valid unless it is in writing and signed by Company or its authorised representative.

1. Definitions

1. “Licensor” refers to the Company, Kustom Engineering Pty Ltd trading as Watercom at A01, Level 11, 66 Clarence St, Sydney NSW 2000, Australia. Postal address: PO Box 199, Port Kembla NSW 2505. Electronic Mail: info@watercom.com.au.
2. “Dongle” means a USB device that may be required to enable the Licence Parameters to function with the Software.
3. “Region” means the nominated location where a Licensed version of the Software can be accessed. Licence Regions include Oceania, Asia, North America, South America, Europe or Africa.
4. “Licensee” means you, the individual or Entity that downloads, copies, uploads, installs or uses the Software.
5. “Software” means the Watercom Software, the deliverables provided pursuant to this EULA.
6. “Older Software” means previous versions of the Software.
7. “Commercial Version” means a Licence that is issued to a Licensee that is authorised to utilise the Software for commercial purposes.

2. Licence Distribution and Installation

1. Subject to the terms of this EULA, the Licensor hereby grants to the Licensee a non-exclusive licence to possess and to use a copy of the Software.
2. The Software is being distributed by USB Memory Drive, Electronic Mail or from a site on the Internet specified by the Licensor.
3. The Licensee is not allowed to distribute the Software or any part thereof, including the provision of terminal services, training services or sub-leasing services without the authorisation in writing by the Licensor.
4. The Licensee may install copies of the Software on a single specific computer or concurrently on different registered computers depending on the type of the licence as described in Clause 3, solely for the Licensee’s use within the Licensee’s business.
5. Unless otherwise specified, all Licences issued by the Licensor to the Licensee are Commercial Versions.

3. Licence Types and Uses

1. Licence Types. The Licensee may acquire one or more copies of the following Licences:
   1. USB Standalone Licence allows Software to operate and is controlled by a USB dongle and soft lock licensing files that is licensed for a person physically using the computer that the USB dongle is attached to. The USB dongle can be physically moved among activated computers to access the licence. Any new computer can be activated with Active Maintenance. Use of any Remote Desktop Client or similar software, Virtual Private Network (VPN) or USB over Information Processing (IP) solutions to share the use of the Software to another device is prohibited.
   2. USB Network Licence allows Software to be controlled by a central USB dongle and operate on activated computers with encrypted licensing files that is licensed for a person physically using the computer. The Software can be installed and activated on computers with Active Maintenance. Use of any Remote Desktop Client or similar software to share the use of the Software to another device is prohibited.
      1. USB Network Local Licence is only for use in a single nominated Region, up to the authorised number of concurrent users. If a Region has not been nominated by the Licensor or the Licensee, then it will be nominated as the Region for which the Licensee’s registered company address is situated within.
      2. USB Network Global Licence can be used in any Region globally without restriction, up to the authorised number of concurrent users.
   3. Subscription Standalone Licence allows Software to operate on a single specified computer only and is controlled by a cloud-based software lock that is licensed for the Licensee physically using the primary work-computer that the software lock has been activated on. The Licensee of Standalone Subscription Licence may also activate an additional non-concurrent Licence (if purchased) in Licensee’s work from home computer only for use by the same user as the primary work-computer. Use of any Remote Desktop Client or similar software, or VPN solutions to share the use of the Software to another device is prohibited. Annual Subscriptions of Software can be transferred to a new computer up to twice per subscription service period for free. Additional Licence transfers will incur an additional charge. 30-day Subscriptions are not transferrable under any condition.
   4. Subscription Network Licence can be used in any Region globally without restriction, up to the authorised number of concurrent users on any of the authorised devices. Use of any Remote Desktop Client or similar software, or VPN solutions to share the use of the Software to another unauthorised device is prohibited.
   5. Subscription Standalone Offline Licence allows Software to operate on a single specified offline computer only and is controlled by a 2-step generated offline software lock that is licensed for the Licensee physically using the computer that the software lock has been activated on. Use of any Remote Desktop Client or similar software, or VPN solutions to share the use of the Software to another device is prohibited. Offline Standalone Subscription Licenses of Software cannot be transferred to a new computer.
   6. Perpetual Standalone (Softlock) Licence allows Software to operate on a single specified computer only and is controlled by a cloud-based software lock that is licensed for the Licensee physically using the computer that the software lock has been activated on. Use of any Remote Desktop Client or VPN solutions to share the use of the Software to another device is prohibited. Licence with Active Maintenance of Software can be transferred to a new computer up to twice per maintenance period for free. Additional Licence transfers will incur an additional charge.
   7. Perpetual Network (Softlock) Licence allows Software to operate on multiple registered computers and is controlled by a cloud-based software lock that is licensed for the Licensee physically using the computers that the software lock has been activated on. Use of any Remote Desktop Client or VPN solutions to share the use of the Software to other unregistered device is prohibited. Licence with Active Maintenance of Software can be transferred to a new computer up to once per device per maintenance period for free. Additional Licence transfers will incur an additional charge.
   8. Training Licence allows Software to operate on a single specified computer only and may be controlled by a cloud-based software lock, offline software lock or USB dongle that is licensed for the Licensee physically using the primary computer that the software lock has been activated on. Training Licence is strictly limited to training purposes only. No commercial use is allowed. Any model created or saved with a Training version of Software cannot be opened in a Commercial Version of the Software. Use of any Remote Desktop Client or similar software, or VPN solutions to share the use of the Software to another device is prohibited. Training Licences are not transferrable under any condition.
   9. Demo Licence allows the Licensee to test the functionality of the Software. The Demo version of the Software is strictly limited to 30 days for non-commercial evaluation purposes only. Any model created or saved with a Demo version of Software cannot be opened in a Commercial version of the Software. The functionality available in any Demo version of the Software is at the sole discretion of the Licensor. The Licensee may not use a Demo version or any part or output of the Demo version to provide outsourcing, terminal services, or training services. Demo Licences are not transferrable under any condition.
   10. Viewer Licence allows the Licensee to open Software model files, inspect data and results (if they have been previously saved), draw hydrographs, long sections etc. This allows the Licensee to thoroughly review work carried out by others. The Viewer Licence does not allow the Licensee to run designs, or simulations, or save any changes to Software model files.
2. Licensor Monitoring. Licensee consents to the Licensor monitoring and keeping records of Licensee’s download and use of the Software, through its Licence Management System and model files generated by the Software.
3. Software Version. Only the current version of the Software is available for download from the Licensor’s Website. Superseded versions of the Software will not be supplied to the Licensee except and only to the extent that is expressly requested by applicable law notwithstanding the limitation and with the authorisation of the Licensor.

4. Beta Versions of Software
Any Beta version of the Software is subject to the following special terms:

1. the Licensor may, at its absolute discretion, terminate the Licensee’s licence to use at any time;
2. no Software Support services are available to the Licensee in connection with a Beta version of the Software;
3. the functionality available in any Beta version of the Software is at the sole discretion of the Licensor;
4. the Beta version of the Software may only be used by the Licensee for non-commercial evaluation purposes;
5. the Licensee may not use a Beta version or any part or output of the Beta version to provide outsourcing, terminal services, or training services;
6. the Licensee must not make any publication or public comment in relation to a Beta version without the prior written approval of the Licensor; and
7. the Licensee accepts the risk that the Beta Software’s performance may contain ‘bugs’ and may cause data loss.

5. Rights and Limitations

1. Limitations. The Licensee must not reverse engineer, decompile, or disassemble the Software or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding the limitation and with the authorisation of the Licensor.
2. Software Updates. The Licensor shall provide updates and maintenance of the Software on an as-needed basis to the Licensee with Active Maintenance or a Subscription Licence. Licencees which do not have Active Maintenance will not be eligible for Software Updates.
3. Separation of Components. Software is licensed as a single product. Its components may not be separated.

6. Intellectual Property.

1. All rights, title, interest, and copyrights in and to the Software and any part thereof, including but not limited to all images, photographs, animations, video, audio, music, text, data, computer code, algorithms, and information, are owned by the Licensor.
2. The Software is protected by all applicable copyright laws and international treaties.
3. The Licensee is required to treat the Software like any other copyrighted material, except as otherwise provided for in this EULA.

7. Software Support. The Licensor will provide Software Support during normal business hours of the Licensor (Australian Eastern Standard Time) either by Support Portal or Electronic Mail or Telephone to Licensees with Active Maintenance or a Subscription Licence. Software Support to Licensees without Active Maintenance or a Subscription Licence shall be at the discretion of the Licensor.

The Licensor’s Software Support services do not include the rectification of any bugs or defects of the Software. The support services also do not include the rectification of defects or problems caused or contributed to by:

1. default or negligence of the Licensee;
2. improper or unauthorised use of the Software;
3. any modifications or alterations of the Software other than as approved by the Licensor;
4. any failure by the Licensee to download and install Upgrades supplied by the Licensor;
5. any failure by the Licensee to comply with the documentation and guidelines; and
6. any fault, defect, omission or error in any data, software or equipment not supplied by the Licensor.

Software support does not include modelling assistance, training or consultancy services. The Licensee agrees on request of the Licensor, to promptly provide any information available to assist the Licensor in identifying a technical error (such as any error diagnostic messages).

8. Terms of Agreement

1. This EULA is to be read in conjunction with the Watercom Terms & Conditions (watercom.com.au/terms) and Privacy Policy (watercom.com.au/privacy).
2. This EULA is effective until it is Terminated by the Licensor due to non-compliance with any of the terms and conditions set forth in this EULA.
3. The Licensor may terminate this EULA immediately upon written notice, including electronic mail, to the Licensee, with or without cause.

9. Integration. Both parties agree that this EULA is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this EULA.

10. Jurisdiction. This EULA shall be deemed to have been made in, and shall be construed pursuant to International Law, without regard to conflicts of the law’s provisions thereof. Any legal action or proceeding relating to this EULA shall be brought exclusively in the courts located in Sydney, New South Wales, Australia, and each party consents to the jurisdiction thereof. The Licensor in any action to enforce this EULA shall be entitled to recover all costs and expenses including, without limitation, attorneys’ fees. This EULA is made within the exclusive jurisdiction of Australia, and its jurisdiction shall supersede any other jurisdiction of either party’s election.

11. Non-Transferable. The Software and this EULA are not assignable or transferable by the Licensee without the prior written consent of the Licensor; any attempt to do so shall be void. Any notice, report, approval, or consent required or permitted hereunder shall be in writing and will be deemed to have been duly given if delivered personally or mailed by first-class, registered, or certified mail, postage prepaid or electronically to the respective addresses of the parties as set forth herein (or such other address as a party may designate by twenty (20) business days’ notice).

12. Severability. No failure to exercise, and no delay in exercising, on the part of either party, any privilege, any power, or any rights hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder. If any provision of this EULA shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this EULA shall otherwise remain in full force and effect and enforceable.

13. Warranty Disclaimer. The Licensor, and author of the Software, hereby expressly disclaims any warranty for the Software. The Software and any related documentation are provided “as is” without warranty of any kind, either expressed or implied, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, error-free operation of the Software, or non-infringement. The Licensee accepts all risk arising out of use or performance of the Software.

14. Limited Liability. The Licensor shall not be liable to the Licensee, or any other person or entity claiming through the Licensee any loss of profits, income, savings, or any other consequential, incidental, special, punitive, direct, or indirect damage, whether arising in contract, tort, warranty, or otherwise, even if the Licensor has been advised of the possibility of such damages. These limitations shall apply regardless of the essential purpose of any limited remedy. Under no circumstances shall the Licensor’s aggregate liability to the Licensee, or any other person or entity claiming through the Licensee, exceed the Subscription Fee of the current period or Perpetual Licence Fee (excluding any Maintenance) actually paid by the Licensee to the Licensor for the Software.

15. Entire Agreement. This Agreement constitutes the entire agreement between the Licensor and the Licensee and supersedes all prior understandings of the Licensor and the Licensee, including any prior representation, statement, condition, or warranty.

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