END USER LICENSE AGREEMENT
This End User Licence Agreement (hereinafter referred to as "EULA") is a contract between Users of TMPortal (hereinafter referred to as “you” or “your”) and TMPortal (hereinafter referred to as the “Company”, “We”, “Us” or “Our”).
This EULA applies to the named “ TMPortal”, the software in it including any patches or updates, etc. (hereinafter together referred to as the “TMPortal Software/Software”).
This Software is licensed, not sold. Company reserves all rights not expressly granted to you. This is a legal agreement between you and us. Please review this End User License Agreement ("Agreement") carefully before downloading, installing, accessing or utilizing the Software and please inquire about anything you do not understand.
If you are not eighteen (18) years of age, have your parents review this Agreement. By downloading, installing, copying and/or otherwise using the TMPortal Software, you are signifying your acknowledgement, acceptance and agreeing to this Agreement.
BY OPENING THE TMPortal SOFTWARE , INSTALLING, AND/OR USING THE TMPortal SOFTWARE AND ANY OTHER MATERIALS INCLUDED WITH THE TMPortal SOFTWARE , AND ANY UPDATES AND UPGRADES THERETO, YOU HEREBY ACCEPT THE TERMS OF THIS AGREEMENT WITH US. THE AGREEMENT APPLIES TO ALL USERS OF THE TMPortal SOFTWARE, INCLUDING USERS WHO ARE ALSO CONTRIBUTORS OF CONTENT, INFORMATION, AND OTHER MATERIALS OR SOFTWARE.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO INSTALL OR DOWNLOAD, COPY OR OTHERWISE USE THE TMPortal SOFTWARE , AND COMPANY SHALL NOT GRANT TO YOU THE LICENSE TO INSTALL AND USE THE TMPortal SOFTWARE YOUR REMEDY FOR DISSATISFACTION WITH THE TMPortal SOFTWARE OR ANY PRODUCTS, CONTENT, OR OTHER INFORMATION MADE AVAILABLE BY OR THROUGH US, IS TO STOP USING THE TMPortal SOFTWARE . YOUR AGREEMENT WITH US REGARDING COMPLIANCE WITH THE AGREEMENT BECOMES EFFECTIVE IMMEDIATELY UPON COMMENCEMENT OF YOUR USE OF THE TMPortal SOFTWARE .
1. ABOUT US:
We are Timemark Pty Ltd, a company incorporated under the laws of Australia with registered office at Suite 304, 491 Kent St. Sydney, NSW 2000, Australia.
2. USER'S ACKNOWLEDGMENT AND ACCEPTANCE OF TERMS:
The TMPortal Software is offered subject to your compliance with all of the terms and conditions contained herein and all other operating rules, policies and procedures. In addition, some software offered through or in connection with the webpage designing software (TMPortal) may be subject to additional terms and conditions promulgated by us from time to time. Any material modifications to the Agreement will also be brought to your attention by posting it on our website http://tmportal.net and/or on your registered email id with us. Such material modifications will be effective immediately, and will apply to disputes arising under the Agreement from the date of posting forward. Your continued use of the TMPortal Software after a modification has been made to the Agreement constitutes your acceptance of such modification.
3. LIMITED USE LICENSE:
3.1 Subject to your compliance with the terms and conditions of the Agreement, Company hereby grants you a non-exclusive, non-transferable, limited right and license to install and use one copy of the TMPortal Software per website and solely and exclusively for your personal and commercial use.
3.2 This Agreement shall also apply to any patches or updates you may obtain for the Software. IN ACCORDANCE WITH AND NOT INTENDING TO LIMIT ANY OF THE PROVISIONS OR PROTECTIONS SET FORTH HEREIN, DUPLICATION, COPYING OR ANY FORM OF REPRODUCTION OF THE TMPortal SOFTWARE OR RELATED INFORMATION, MATERIALS OR OTHER CONTENTS TO ANY OTHER SERVER OR LOCATION FOR THE PURPOSES OF DUPLICATION, COPYING OR ANY OTHER FORM OF REPRODUCTION IS EXPRESSLY AND EXPLICITLY PROHIBITED.
3.3 This license does not give you any title or ownership in the software, and should not be construed as a sale or transfer of any intellectual property rights to the TMPortal Software. All rights not specifically granted under this Agreement are hereby reserved by the Company and, as applicable, by its licensors.
3.4 When users come to the TMPortal website, they can see some General Information pages and must register to see the rest of the details and the pages. After registering you can download the TMPortal software, access Plugin Store with templates and components, read FAQ, KB Articles, access Forum, create support Tickets, suppliers can upload their plugins, etc.
3.5 We give you the personal right (known as a 'licence') to download TMPortal software, install on your system or your web provider’s system and use it as a platform for your new websites. We don’t provide web hosting services of our own.
3.6 This licence is for your personal use only (i.e. not for other people). We can terminate this licence in certain circumstances, which are explained further below. This licence is 'non-exclusive', meaning that we can grant similar licences to other people as well. It is also 'non-transferable', meaning it cannot be given to anyone else.
4. NO RIGHT TO OWNERSHIP:
4.1 YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN THE TMPortal SOFTWARE, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL SUCH RIGHTS ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF THE COMPANY.
4.2 Except as expressly licensed to you herein, all right, title, and interest in and to the software and any and all associated copyrights, trademarks and intellectual properties therein and/or related thereto and all copies thereof (including, but not limited to, any patches, updates, copies, derivative works, titles, computer code, themes, objects, characters, character names, stories, dialogs, catch phrases, locations, concepts, artwork, images, animation, sounds, musical compositions, audio-visual effects, text, methods of operation, moral rights, "applets" incorporated into the Software, and any related documentation) are owned by Company or Company’s licensors.
4.3 The TMPortal Software is protected by the copyright laws of Australia. All rights are reserved. The TMPortal Software contains certain licensed materials, and Company and/or Company’s licensors may protect their rights in the event of any violation of this Agreement.
5. PATCHES, UPDATES AND CHANGES:
From time to time, we may need to deploy or provide patches, updates, additional content or other modifications to the Software (for example to enhance or to add new features or to resolve software bugs). From time to time, we may also at our discretion remove or suspend access to particular features, content or other parts of the TMPortal Software. Any material modifications to the TMPortal Software will be brought to your attention by posting it on www.tmportal.net and/or on your registered email with us. Such material modifications will be effective immediately, and will apply to disputes arising under the Agreement from the date of posting forward. Your continued use of the Software after a modification has been made to the Agreement constitutes your acceptance of such modification.
6. INTELLECTUAL PROPERTY RIGHTS:
6.1 The TMPortal Software, including the graphics, TMPortal Software , user interface, audio and other content, containing proprietary information and material that is protected by copyright and other laws including but not limited to intellectual property. You agree that we own or license all of this proprietary information and material and that you may not use or exploit any of it without our permission. The Service and all content and other materials that are part of the Service, including, but not limited to, the TMPortal Software effects, our logo and all designs, text, graphics, logos, icons, images, photographs, audio clips, digital downloads, data compilations, software and the selection and arrangement thereof (collectively, the “Materials”) are our property or that of our licensors and are protected by laws of Australia and/or international copyright laws.
6.2 TMPortal, the TMPortal Software logo, all TMPortal Software names, and any other product or service names or slogans contained within the Service are trademarks of TMPortal or its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of TMPortal or the applicable trademark holder. You may not use any meta tags or any other “hidden text” utilizing “TMPortal Software” or any other name, trademark or product or service name of TMPortal without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Service are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, and supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us.
7. NO SALE OR ASSIGNMENT:
Company does not recognize the transfer of the TMPortal Software . Therefore, you may not give, purchase, sell, bargain, barter, market, trade, offer for sale, , license, assign or otherwise divest your rights, responsibilities or obligations under the Agreement, either in whole or in part, without the prior written consent of the Company. Any attempt to do so shall be void and of no effect.
8. LICENSE CONDITIONS:
8.1 You agree to only use the TMPortal Software, or any part of it, in a manner that is consistent with this Agreement, and you shall not:
(a) make the TMPortal Software available for download from a network, multi-user arrangement, remote access arrangement, including where it could be downloaded by multiple users;
(b) sell, rent, lease, license, distribute or otherwise transfer this TMPortal Software or any copies;
(c) reverse engineer, derive source code, modify, decompile, disassemble, copy, or create derivative works of the TMPortal Software, in whole or in part (except as the applicable law expressly permits, in which case all and any modifications, adaptations, copies, improvements, etc. shall belong to, vest in and be the exclusive property of the Company and/or its licensors on creation, in any event);
(d) remove, disable or circumvent any security protections, proprietary notices or labels contained on or within the TMPortal Software;
(e) export or re-export the TMPortal Software or any copy or adaptation in violation of any applicable laws or regulations;
(f) create data or executable programs which mimic data or functionality in the TMPortal Software unless provided for in Section 7.1 (I) below; or
(g) use the part of the TMPortal Software which allows you to construct new variations to create new levels which:
(I) can be used otherwise in connection with the software;
(II) to modify any executable file;
(III) to product any libellous, defamatory or other illegal material or material that is scandalous or invades the rights of privacy or publicity of a third party;
(IV) to use the trademarks, copyright or intellectual property rights of any third party;
(V) are then commercially exploited by you (through pay-per-play or timesharing services or otherwise). For the avoidance of doubt you are solely liable and responsible for any claims by a third party resulting from such use.
8.2 Furthermore, you agree that you shall abide by the safety information, maintenance instructions or other relevant notices contained in the manual or other documentation accompanying the TMPortal Software.
9. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY:
9.1 TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, YOU EXPRESSLY AGREE THAT THE USE OF THE TMPortal SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO THE SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL MATERIALS AND TMPortal SOFTWARE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE TMPortal SOFTWARE , EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT (A) THE TMPortal SOFTWARE WILL MEET YOUR REQUIREMENTS, (B) THE TMPortal SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE TMPortal SOFTWARE WILL BE INTERAOPERABLE OR COMPATABILE WITH OTHER SOFTWARE, OR (D) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE TMPortal SOFTWARE WILL BE EFFECTIVE, ACCURATE OR RELIABLE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY OR ITS AUTHORIZED REPRESENTATIVE(S) SHALL CREATE A WARRANTY. AT SOME POINT IN THE FUTURE THE TMPortal SOFTWARE MAY GO OUT OF DATE, AND THE COMPANY MAKES NO COMMITMENT TO UPDATE SUCH TMPortal SOFTWARE .
9.2 THE DISCLAIMERS OF LIABILITY CONTAINED IN THIS SECTION SHALL APPLY TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF THE TMPortal SOFTWARE , WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. THE USE OF THE TMPortal SOFTWARE OR THE DOWNLOADING OR OTHER ACQUISITION OF ANY MATERIALS THROUGH OR IN CONNECTION WITH THE TMPortal SOFTWARE IS DONE AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES.
9.3 COMPANY MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE INFORMATION CONTAINED IN THE TMPortal SOFTWARE, INFORMATION AND/OR RELATED GRAPHICS PUBLISHED AS PART OF THE TMPortal SOFTWARE FOR ANY PURPOSE. THE TMPortal SOFTWARE, INFORMATION AND RELATED GRAPHICS PUBLISHED AS PART OF THE TMPortal SOFTWARE MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. You understand and agree that temporary interruptions of the TMPortal SOFTWARE may occur as normal events. You further understand and agree that we have no control over third party networks you may access in the course of the use of the TMPortal SOFTWARE , and therefore, delays and disruption of other network transmissions are completely beyond Company's control.
9.4 YOU ACKNOWLEDGE AND AGREE THAT YOUR EXCLUSIVE REMEDY FOR ANY DISPUTE WITH COMPANY IS TO STOP USING THE TMPortal SOFTWARE. IN NO CASE SHALL ANY LIABILITY OF THE COMPANY TO YOU EXCEED THE AMOUNT THAT YOU HAVE PAID TO COMPANY OR ITS AFFILIATES AND/OR DESIGNEES FOR THE APPLICABLE TMPortal SOFTWARE GIVING RISE TO ANY SUCH LIABILITY. IN NO EVENT SHALL COMPANY OR ITS AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE TMPortal SOFTWARE, INCLUDING DAMAGES TO PROPERTY, LOSS OF GOODWILL, DEVICE FAILURE OR MALFUNCTION AND, TO THE EXTENT PERMITTED BY LAW, DAMAGES FOR PERSONAL INJURIES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE LIABILITY OF COMPANY AND THE COMPANY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
9.5 We warrant that: (i) we have the right to enter this EULA and to grant you the licence to use the TMPortal Software set out in this EULA; (ii) we will use reasonable skill and care to give you access to the TMPortal Software; and (iii) we will use reasonable endeavours to comply with applicable laws in the performance of our obligations under this EULA. Please also note that we provide the TMPortal SOFTWARE for personal and commercial use, on an 'as is' basis.
Upon a request by Company, you agree to defend, indemnify, and hold Company and its affiliates harmless from all liabilities, claims, losses, costs and expenses, including attorney's fees, that arise from (a) your use of, or activities in connection with the TMPortal Software ; (b) any violation of the Agreement by you; or (c) any allegation that any content that you make available via the TMPortal Software infringes or otherwise violates the copyright, trademark, trade secret, privacy or other intellectual property or other rights of any third party. Company reserves the right, at its own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with Company in asserting any available defences.
11. INTERNATIONAL USE:
Although the TMPortal Software may be accessible worldwide, we make no representation that the TMPortal Software or related materials are appropriate or available for use in locations outside Australia, and accessing them from territories where the content is illegal is prohibited. Those who choose to access the TMPortal Software from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Any offer and/or information made in connection with the TMPortal Software is void where prohibited.
12. TERMINATION AND SURVIVABILITY OF TERMS:
12.1 If you breach a term of this EULA, then we may cancel or suspend your access to the TMPortal Software .
12.3 You retain full discretion to end or terminate your account, if applicable, and discontinue use of the TMPortal Software at any time, pursuant to the terms of this Agreement.
12.4 Without prejudice to any other rights of Company/TMPortal Software, this Agreement shall terminate automatically if you fail to comply with its terms and conditions.
12.5 To access, correct, cancel, or update your account information, login to your account and go to the account setting. In some cases, in order to cancel your account, you may have to email TMPortal’s customer service at firstname.lastname@example.org. Remember, that even after you cancel your account, copies of some information from your account may remain viewable in some circumstances – where, for example, you have shared information on the TMPortal Software Services or with a third-party application or website. We may also retain backup information related to your account on our servers for some time after cancelation for fraud detection or to comply with applicable law or our internal security policies. Because of the nature of caching technology, your account may not be instantly inaccessible to others, and we may not be able to remove your content or there may be a delay in the removal of the content from elsewhere on the Internet, for example, from search engines.
Because Company would be irreparably damaged if the terms of this Agreement were not specifically enforced, you agree that Company shall be entitled, without bond or other security or proof of damages, to take such action as may be required, including seeking an injunction and other equitable remedies, in addition to any other remedies available to it under the applicable law.
14. GENERAL TERMS and CONDITIONS:
14.1 You agree that all the information provided by you with the registration and at all other times will be true;
14.2 You must make sure that the posting and use of your contents on or through the Service does not violate, misappropriate or infringe on the right of any third party;
14.3 You shall be responsible for keeping your password secret and secure;
14.4 Using the functionality may require you to login to your account on the third party service and you do so at your risk. The Service does not control any of these third party web services or any other content. You expressly acknowledge and agree that we, in no way shall be responsible or liable for any such third party services or features;
14.4 We prohibit crawling, scraping, caching or otherwise accessing any content on the Service via automated means;
14.5 You shall agree to any advertising revenue, display advertisements and promotions which some of the Service may be supported by.
Each party hereto acknowledges that by reason of its relationship with the other party hereunder, it may have access to confidential information and materials concerning the other party’s business, technology, and/or products that is confidential to the other party (“Confidential Information”). Each party’s Confidential Information is of substantial value to the party, which value could be impaired if such information was disclosed to third parties or used in violation of this Agreement. Written or other tangible Confidential Information must at the time of disclosure be identified and labelled as Confidential Information belonging to the disclosing party. When disclosed orally or visually, Confidential Information must be identified as confidential at the time of the disclosure, with subsequent confirmation in writing within fifteen (15) days after disclosure. Each party agrees that it will not use in any way for its own account or the account of any third party, such Confidential Information, except as authorized under this Agreement, and will protect Confidential Information at least to the same extent as it protects its own Confidential Information and to the same extent that a reasonable person would protect such Confidential Information. Neither party may use the other party’s Confidential Information except to perform its duties or exercise its rights under this Agreement. The Confidential Information restrictions will not apply to Confidential Information that is (i) already known to the receiving party at the time of access hereunder, (ii) becomes publicly available through no wrongful act of the receiving party, (iii) independently developed by the receiving party without benefit of the disclosing party’s Confidential Information, (iv) has been rightfully received from a third party not under obligation of confidentiality or (v) is required to be disclosed by law, provided the party compelled to disclose the Confidential Information provides the party owning the Confidential Information with prior written notice of disclosure adequate for the owning party to take reasonable action to prevent such disclosure, where reasonably possible. Unless otherwise agreed to by both parties, upon termination of this Agreement or an applicable Addendum, each party will return the other party’s Confidential Information.
16. GOVERNING LAWS AND JURISDICTION:
16.1 These Terms and any action related thereto will be governed by the laws of Australia.
16.2 Users agree to submit to the exclusive jurisdiction of the courts in Sydney, Australia in relation to proceedings arising out of this agreement.
17. DISPUTE RESOLUTION:
17.1 In case of any dispute with us in the most expedient and cost-effective manner, you and we agree that any and all disputes arising in connection with the Terms shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to, all claims arising out of or relating to any aspect of the Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of the Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THE TERMS, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
17.2 The venue for arbitration shall be Australia Courts of Law, and the language used for arbitration shall be English.
17.3 The award of the arbitration shall be binding on both, you and us.
All Personal Information provided to us is subject to our Privacy Statement.
19. AGREEMENT BINDING ON SUCCESSORS:
This EULA shall be binding upon and shall inure to the benefit of the parties hereto, their heirs, administrators, successors and assigns.
20. FORCE MAJEURE:
Company shall be under no liability to you in respect of anything that, if not for this provision, would or might constitute a breach of these Terms, where this arises out of circumstances beyond Company’s control, including but not limited to:
(a) Acts of god;
(b) Natural disasters;
(f) Shortage of supplies, equipment, and materials;
(g) Strikes and lockouts;
(h) Civil unrest;
(i) Computer hacking; or
(j) Malicious damage.
If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision and such invalid provision shall be deemed to be severed from the Agreement.
22. CHANGES TO THIS EULA:
We may amend this EULA as and when we consider it appropriate or necessary for legal reasons or to reflect changes in the TMPortal Software . If so, then we will make the revised EULA available http://tmportal.net .
Company may assign this Agreement, in whole or in part, at any time. Notwithstanding, you may not assign, transfer or sublicense any or all of your rights or obligations under the Agreement without Company's express prior written consent.
24. ENTIRE AGREEMENT:
This Agreement represents the complete agreement between you and us concerning the TMPortal Software and supersedes all prior agreements and representations, warranties or understandings between you and us (whether negligently or innocently made but excluding those made fraudulently), regarding the same subject matter.
25. CONTACT US:
If you have any questions concerning this agreement, you may contact us at email@example.com.