Do not download, open, install, copy or use the Software covered by this Licence until you have read and agreed to the terms and conditions of this Licence.
By registering your details and by downloading, opening, installing, copying or otherwise using any part of the Software you agree to be bound by the terms and conditions of this Licence.
NSW DPI gives no warranty regarding the Software’s accuracy, completeness, currency or suitability for any particular purpose.
This end-user licence agreement is a legal agreement between you (the ‘User’) and the NSW Department of Primary Industries for and on behalf of the State of New South Wales (ABN 51 734 124 190) located at 161 Kite Street, Orange NSW 2800 (‘NSW DPI’) regarding your use of the software covered by this Licence (“the Software”).
If you do not agree with the terms of this agreement you must not download, open, install, copy or use the Software in any way, nor must you Register as a user of the Software.
By Registering or by downloading, opening, installing, copying or otherwise using any part of the Software you agree to be bound by the terms of this agreement.
1. Meaning of words
1.1. Business Day means any day other than a Saturday, Sunday or public holiday in New South Wales.
1.2. ‘Licence’ means this licence agreement between the User and NSW DPI comprising the terms and conditions that the User accepts by Registering or when downloading, opening, installing, copying or using the Software.
1.3. ‘ NSW DPI website’ means the website at www.dpi.nsw.gov.au
1.4. ‘Registration’ means the process to register as a user of the Software by providing the User’s personal details and information on the proposed use of the Software on the NSW DPI website.
1.5. ‘Software’ means the product you are downloading, installing or copying from the NSW DPI website. The Software includes all related programs, data and printed or electronic documentation.
1.6. ‘User’ means you the user as licensee.
1.7. Unless the context requires otherwise, in this Licence:
- words in the singular include the plural and vice versa;
- headings are for convenience only and do not affect the interpretation of this Agreement;
- the meaning of general words is not limited by specific examples introduced by “including” or “for example” or similar expressions;
- references to persons include bodies corporate, government agencies and vice versa;
- references to the parties include references to respective directors, officers, employees, agents of the parties;
- nothing in this Licence is to be interpreted against a party solely on the ground that the party put forward this Licence or any part of it; and
- where an expression is defined, any other grammatical form of that expression has a corresponding meaning.
2. The Licence
2.1. NSW DPI grants the User a non-transferable and non-exclusive right to use the Software only in accordance with the terms of this Licence. NSW DPI reserves the right to refuse to licence the Software to any person without giving any reasons.
2.2. A person entering this agreement on behalf of a corporation or other entity must do so only if properly authorised by the corporation or other entity. In Registering, you warrant that you are authorised to enter the agreement on behalf of the corporation or other entity and the NSW DPI may rely on that warranty.
2.3. This Licence binds employees, consultants and any other person who use the software on behalf of the User. The User must ensure that all persons using the Software on its behalf understand and abide by the terms of the Licence.
2.4. The Licence contains the complete understanding between the parties with respect to the Software. No provision shall be deemed waived or modified except in writing.
3. Registration
3.1. Before downloading, opening, installing, copying or using the Software the User must provide and ensure the accuracy and completeness of the User’s Registration.
3.2. The User agrees that NSW DPI may collect and retain all Registration data for its record-keeping purposes and for further development of the Software.
4. Intellectual property rights
4.1. The Software is protected by intellectual property laws and international intellectual property treaties. All copyright in the Software (or any part of it, whether or not incorporated into any other software), related patents and other intellectual property rights in respect of or in connection with the Software are and remain under the ownership and control of NSW DPI. (The Software was developed originally by the Cooperative Research Centre for Greenhouse Accounting.)
4.2. This agreement grants the User a licence to use the Software, and the Software is not sold to the User. The User must not remove or alter any logo, copyright or other proprietary notices, symbols or labels in the Software.
4.3. The User must not without written permission use the name, any trademark or logo of NSW DPI or any derivative thereof or claim any sponsorship, endorsement, approval or affiliation or other association with NSW DPI by virtue of this Licence.
5. Consideration
5.1. Use of the Software is provided free of charge in consideration of the User using it in accordance with the terms of this Licence only.
6. User rights to use the Software
6.1. This Licence is for non-commercial use including research and education, and in evaluation of the Software for NSW DPI. If the User wishes to use the Software for commercial purposes, the User must apply in writing to NSW DPI for a commercial Licence.
6.2. The Software may be used only by the User. The User must not rent, lease, copy, distribute, sell, licence, transfer or otherwise make the Software available for use by a third party. The User should refer other persons who wish to use the Software to the NSW DPI website.
6.3. The User must not decompile, reverse engineer, disassemble, translate, tamper with the Software or make any attempt to discover the source code of the Software.
6.4. The User must not modify, network or create derivative works based upon the Software or its associated documentation (including “TimberCam – a carbon accounting model for wood and wood products,” User’s guide version 1.15.4 September 2004, by F Ximenes and I Davies) in whole or in part, nor permit any other party to do so. If the User wishes to use the Software in other products, the User must apply in writing to NSW DPI to agree terms for that use.
6.5. The User may make copies of the Software only as reasonably required for backup purposes provided that all copies are kept in safe keeping with a notice specifying NSW DPI’s ownership of intellectual property rights.
7. Publication
7.1. Where the Software or use of the Software contributes to or informs any published article, paper, section or chapter, including electronic publication, the Software and the NSW DPI must be acknowledged in the publication.
8. User remedies
8.1. To the extent permitted by law, all terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating in any way to the Software are excluded. The User agrees that it has relied on its own skill and judgement in deciding to use the Software and that no representation has been made regarding any benefit to be obtained from the use of the Software.
8.2. To the extent permitted by law, any liability of NSW DPI in relation to the Software and media on which it is provided, under any term, condition, warranty, undertaking, inducement or representation that by law cannot be excluded or that is not otherwise excluded by this agreement is limited at the option of NSW DPI to the replacement, repair or resupply of the Software or media or the cost of the Software or media.
8.3. To the extent permitted by law, all liability of NSW DPI is excluded in respect of any indirect or consequential damage, expense or loss suffered or incurred by the User in relation to the supply or non-supply of the Software or media on which it is provided, including without limitation liability for business interruption, lost profits or goodwill or lost or corrupted data.
9. Limitation of NSW DPI’s representations
9.1. NSW DPI makes no warranty or representation, either express or implied, with respect to the Software including:
9.1.1. its quality, performance or fitness for the User’s or any other purpose;
9.1.2. that any functions contained in the Software will meet the Users requirements or that its operations will be error free;
9.1.3. regarding the results of any use of the Software in whole or in part;
9.1.4. its accuracy, reliability or content of any data, information service or goods obtained through any use of the Software in whole or in part;
9.1.5. that use of the Software will not infringe the intellectual property rights of a third party; or,
9.1.6. its future support and development.
9.2 The User accepts responsibility for the selection of Software in whole or in part to achieve the Users intended results, and for the installation, use and results obtained from the Software.
9.3 The User must indemnify and keep indemnified NSW DPI from and against any cost, expense, loss, damage, claim, action, proceeding or other liability (whether in contract, tort or otherwise), incurred by, or made against, NSW DPI arising directly or indirectly from:
9.3.1. any breach of this Licence by the User; or
9.3.2. any unlawful or negligent act or omission by the User in connection with this Licence.
9.4 The User’s liability to indemnify NSW DPI under this clause does not exclude or reduce the liability of, or benefit to, a party that may arise by operation of the common law, statute or the other terms of this Licence.
10. Term of the Licence
10.1. This Licence to use the Software exists from the date of acceptance of these terms and conditions until terminated.
10.2. The User may terminate the Licence at any time by destroying all copies of the Software and its documentation.
10.3. NSW DPI may terminate this Licence at any time by written notice to the User in accordance with clause 13 (Notices).
10.4. The Licence to use the Software terminates immediately, without notice to the User, if the User breaches any term of this Licence.
10.5. When this Licence terminates or if the Software is obtained other than from NSW DPI, all User rights to the Software cease and the User must destroy or return to the NSW DPI the original and all copies of the software and documentation and cease and desist from any further use of the Software.
10.6. Intellectual property protections, disclaimers of warranty and limitation of damages will survive termination. The failure or delay of NSW DPI to exercise any of its rights upon any breach of this Licence shall not be deemed to be a waiver of those rights or of the breach. If any provision of this Licence is held to be invalid, the remainder of the Licence will remain in full force and effect.
11. Updates
11.1. From time to time NSW DPI may have available an updated version of the Software. The terms and conditions of this Licence apply to that updated Software. Nothing in this Licence will be deemed to impose any obligation on NSW DPI to create and make available such updated Software.
12. Resolving disputes
12.1. If there is a dispute arising from or in connection with this Licence, the User agrees to first negotiate in good faith with a NSW DPI senior manager to resolve it. If the dispute is not resolved by negotiation within 30 Business Days the dispute may be referred to the Australian Commercial Dispute Centre Limited (‘ACDC’) for resolution by mediation and if necessary by arbitration in accordance with the Conciliation Rules of the ACDC.
13. Notices
13.1. Unless otherwise stated in this Licence, all consents, instructions, directions, statements, requests or other communication to be given under this Licence (“Notices”) must be in writing and emailed, hand-delivered, posted or faxed:
13.1.1. for the User, to the contact details specified in the Registration or as otherwise notified in writing; and
13.1.2. for NSW DPI, to The Deputy Director-General, Science & Research, NSW Department of Primary Industries, 161 Kite Street, Orange NSW 2800, fabianox@sf.nsw.gov.au or as otherwise notified in writing.
13.2. Any Notice is deemed to be received by the receiving party as follows:
13.2.1 if hand delivered, the day on which it is left at the relevant address;
13.2.2 if sent by regular post within Australia, four (4) Business Days after the day on which it is posted;
13.2.3 if sent by facsimile, the day of transmission, or the date and time the sender received a delivery confirmation report;
13.2.4.if sent by email, on entering the information system of the recipient party, provided that notices under subclauses 13.2.1, 13.2.3 and 13.2.4 are delivered or sent before 5.00pm on a Business Day (otherwise they will be deemed to be received on the next Business Day).
14. The governing law
14.1. This Licence is governed by the laws of the state of New South Wales. The User submits to the exclusive jurisdiction of the courts of the state of New South Wales and agrees that any lawsuit must be heard in those courts.