Inventory Management Software
1.1 Payment is due upon submission of the order and, unless otherwise indicated on the Order Form, must be made before products or services will be provided. Late payment is subject to interest at the lower of 1.5% per month or the maximum permitted by law from the date due until paid in full. Customer agrees to reimburse Fishbowl Australia / Fishbowl New Zealand for any costs or expenses incurred by Fishbowl Australia / Fishbowl New Zealand in connection with collecting payment from Customer, including reasonable legal fees.
1.2 Customer shall be liable for payment of all taxes, however designated, levied or based on Customer's purchase, license, possession or use of the equipment, services, software or on this Agreement.
1.3 Customer shall have thirty (30) days from the date of purchase during which to return, for any reason, any equipment (subject to a 15% restocking fee) or software for a refund of the fees paid by Customer (if any) using the following procedure only: (a) Customer must first contact Fishbowl Australia / Fishbowl New Zealand to obtain a Return Authorization Number (RMA), (b) Customer must return at Customer's expense all equipment and tangible forms of any software within such 30-day period to Fishbowl Australia / Fishbowl New Zealand at PO Box 5049 Maroochydore BC QLD AUSTRALIA 4558, with the RMA clearly visible on the outside of the package used to return the Software, (c) Customer must destroy and uninstall all versions of the software otherwise in the possession of Customer, and (d) equipment must be returned in its original packaging, all in like-new condition. Equipment and software not returned within the required 30-day period or without an RMA clearly visible on the return package during such period, and equipment not returned with its original packaging and in like new condition, is not eligible for a refund, and will be refused and/or returned to Customer without refund. Returns not in complete compliance with this limited return policy are not eligible for refunds and will be deemed accepted by Customer for all purposes. All purchases of services provided by Fishbowl Australia / Fishbowl New Zealand are non-refundable after the service has been provided or (30) days have passed from the date of purchase. Requests for refund of services not yet provided must be received within (30) days of date of purchase. These services include but are not limited to: on-site training, in-house training, custom reports and custom training of any type.
1.4 For on-site training provided by Fishbowl Australia / Fishbowl New Zealand staff, all normal and reasonable travel expenses will be invoiced separately to the on-site training unless otherwise agreed. These expenses include airfare, accommodation, rental car expenses, food and other incidental travel expenses. Should Customer elect to cancel or alter the travel arrangements for on-site training within one (1) week of the scheduled training date, Customer will pay Fishbowl Australia / Fishbowl New Zealand any costs associated with cancelling or altering such travel arrangements. If Customer requires specific times and dates of travel or otherwise have specific needs that require Fishbowl Australia/Fishbowl New Zealand to incur expenses outside of the typical costs incurred in travel for on-site training, Customer will be liable for these additional expenses.
2.1 if hardware is supplied by Fishbowl Australia / Fishbowl New Zealand, Fishbowl Australia / Fishbowl New Zealand will use reasonable commercial efforts to have the equipment ship in a timely manner in order to have equipment arrive at the Customer's specified location at the date requested by the Customer, if any. Customer understands and agrees, however, that Fishbowl Australia / Fishbowl New Zealand's delivery dates and quantities are otherwise subject to change in Fishbowl Australia / Fishbowl New Zealand's discretion and Fishbowl Australia / Fishbowl New Zealand shall have no liability of any kind to Customer for any costs or damages related to delays in Customer's delivery or failure to give notice of delays of delivery of equipment. Delay in delivery or other failure to deliver any part of Customer's equipment order shall not relieve Customer of its obligation to accept and pay for prior or remaining portions of Customer's order. In order to accommodate potential uncertainty in transport times and other potential delays, Customer grants Fishbowl Australia / Fishbowl New Zealand the right to ship equipment up to seven (7) calendar days earlier than otherwise requested by Customer. If equipment arrives earlier than requested at the location specified by Customer, Customer hereby agrees to accept and pay for such shipments. Fishbowl Australia / Fishbowl New Zealand reserves the right to make shipments in instalments when equipment is available.
2.2 Unless otherwise agreed to in writing and incorporated in the Order Form all sales are prepaid at Fishbowl Australia / Fishbowl New Zealand's or the manufacturer's point of shipment. Fishbowl Australia / Fishbowl New Zealand's title and risk of loss shall pass to Customer upon making delivery of equipments purchased hereunder to the carrier at Fishbowl Australia / Fishbowl New Zealand's or manufacturer's point of shipment. Shipping will be made using carriers selected by Fishbowl Australia / Fishbowl New Zealand or the manufacturer. Customer shall be solely responsible for all shipping costs. Customer shall be responsible for making all claims with carriers, insurers , and others for non-delivery, loss, damage, or delay. Any loss or damage after delivery of the equipment to the carrier shall not relieve Customer of its obligations hereunder.
2.3 The equipment purchased from Fishbowl Australia / Fishbowl New Zealand by Customer is covered by the original manufacturer's written warranty, if any, included with the equipment as delivered to Customer. To obtain service under warranty, Customer must return at its own expense the defective equipment to Fishbowl Australia / Fishbowl New Zealand at PO Box 5049 Maroochydore BC QLD AUSTRALIA 4558, by following the "product return" guidelines as outlined in Section 1.3. THERE ARE NO FISHBOWL AUSTRALIA / FISHBOWL NEW ZEALAND WARRANTIES APPLICABLE TO SUCH EQUIPMENT, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE WHICH ARE HEREBY EXPRESSLY DISCLAIMED.
3.1 Fishbowl Australia / Fishbowl New Zealand will perform its services in a workman-like manner. In the event Fishbowl Australia / Fishbowl New Zealand does not perform its services in such manner, Fishbowl Australia / Fishbowl New Zealand may elect, as Customer's sole remedy, to re-perform such services to meet such standard. Fishbowl Australia / Fishbowl New Zealand does not guarantee any specific service result or time for performance, unless specified otherwise in the Order Form.
4.1 Customer use will not adversely impact the experience of other customers or constitute excess usage of Services. The products are designed to meet the typical needs of small and medium businesses. The usage of the product as determined by Fishbowl Australia / Fishbowl New Zealand in its discretion should not exceed such typical use. The product is not intended to support the sustained demand of large enterprises, power users or other non-typical applications suited to dedicated servers and bandwidth.
4.2 Fishbowl Australia / Fishbowl New Zealand will make commercially reasonable effort to provide additional resources to customers who are using the product(s) consistent with these Guidelines, including moving customers to newer and bigger servers or increasing bandwidth as necessary. However, in order to ensure a consistent and quality experience for all customers, Fishbowl Australia / Fishbowl New Zealand may place safeguards to protect against any customer using excessive bandwidth and/or server resources until Fishbowl Australia / Fishbowl New Zealand can evaluate said customer's needs and adjust pricing, if necessary. No warranty is made that the product will run uninterrupted or error-free.
5.1 Fishbowl Australia / Fishbowl New Zealand's entire liability and Customer's exclusive remedy for damages from any cause whatsoever, and regardless of the form of action, whether liability in contract or in tort, arising under or related to this agreement, shall not exceed an amount equal to the amounts paid by Customer specified in the Order Form. The foregoing limitation of liability shall not apply to claims by Customer or third parties for personal injury or damage to real property or tangible personal property caused solely and directly by the gross negligence or willful misconduct of Fishbowl Australia / Fishbowl New Zealand.
5.2 IN NO EVENT WILL FISHBOWL AUSTRALIA / FISHBOWL NEW ZEALAND BE LIABLE FOR ANY LOST PROFITS, LOST SAVINGS, LOST REVENUES, LOSS OF USE OR DOWNTIME, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE PRODUCT OR SERVICE, HOWEVER CAUSED, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY OR FORM OF ACTION, EVEN IF FISHBOWL AUSTRALIA / FISHBOWL NEW ZEALAND HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. Fishbowl Australia / Fishbowl New Zealand and Customer agree that the limitations specified above and otherwise in this agreement will survive and apply even if any limited remedy provided in this agreement is found to have failed of its essential purpose.
6.1 An order shall be deemed accepted only when Fishbowl Australia / Fishbowl New Zealand provides Customer with a written Fee Estimate and it is returned signed by Customer. Clerical errors or omissions on the Fee Estimate are subject to correction by Fishbowl Australia / Fishbowl New Zealand. For all other purposes of this agreement, purchase date controls the return period for all Customers.
6.2 This agreement, including the Fee Estimate, these general terms and conditions, and any addendums attached hereto (the "Agreement"), constitutes the entire agreement between the parties relating to the subject matter hereof, and supersedes all prior and contemporaneous oral or written representations or communications between the parties. This agreement may not be modified or amended, nor any provision waived, except in writing executed by the appropriate designated officers or other authorized representative of the parties hereto. Any variation in the terms and conditions contained in this agreement (including, but not limited to, the inclusion of Customer's own terms and conditions in any purchase order or other document issued by Customer in response to and/or referencing this agreement) shall not be deemed to be a part of this agreement and shall not be binding upon Fishbowl Australia / Fishbowl New Zealand unless set forth in writing and executed by the appropriate designated officer of Fishbowl Australia / Fishbowl New Zealand. Subject to the limitations expressed herein, this agreement will be binding upon and inure to the benefit of the parties hereto, their successors, legal representatives, and assigns. This Agreement may be assigned by Fishbowl Australia / Fishbowl New Zealand without restriction
6.3 This Agreement may be executed in two counterparts, each of which shall be deemed an original and both of which shall constitute one and the same instrument. A facsimile, telecopy or other reproduction of this Agreement may be executed by one or more parties hereto, and an executed copy of this Agreement may be delivered by one or more parties hereto by facsimile or similar electronic transmission device pursuant to which the signature of or on behalf of such party can be seen, and such execution and delivery shall be considered valid, binding and effective for all purposes.
6.4 If a part of this Agreement is held unenforceable or invalid or prohibited under law, it shall be struck from this Agreement and shall not affect the enforceability of the other parts of this Agreement.
6.5 This agreement shall be construed and enforced in accordance with the laws of the State of Queensland. ANY ACTION OR PROCEEDING BROUGHT BY EITHER PARTY HERETO AGAINST THE OTHER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE BROUGHT IN A STATE OR FEDERAL COURT OF COMPETENT JURISDICTION LOCATED IN THE STATE OF QUEENSLAND AND BOTH PARTIES HEREBY CONSENT TO THE JURISDICTION AND VENUE OF SUCH COURTS FOR THAT PURPOSE.
6.6 In the event either party commences a legal proceeding to enforce this Agreement, the prevailing party in such action shall have the right to recover reasonable legal fees and costs from the other party, to be fixed by the court in the same action.
6.7 Fishbowl Australia / Fishbowl New Zealand shall not be liable for any loss, penalty, damages or be held for breach or failure to perform any aspect of this Agreement when the failure to perform is due in whole or in part to causes outside of Fishbowl Australia / Fishbowl New Zealand 's reasonable control, including, but not limited to, acts of nature, acts or omissions of Customer, judicial action, acts of civil or military authority, war, terrorist activity, sabotage, civil unrest, shortages of energy, raw materials, labour, or equipment, delays in transportation, or acts of God.
6.8 The content of the Products and Services (‘Content’) is not intended to and does not constitute taxation or accounting advice and no accountant-client relationship is formed. The accuracy, completeness, adequacy or currency of the Content is not warranted or guaranteed. Your use of the Content or materials linked from it is at your own risk.
6.9 When you accept the terms and conditions on the free trial form you are automatically added and give consent to receive electronic correspondence from Fishbowl Australia. If you do not wish to receive electronic correspondence, please let us know by email or phone call and we will remove you from the mailing list.
[End of General Terms and Conditions]
For Fishbowl Inventory and/or Fishbowl Mobile Warehouse and/or SalesPoint (Standard Versions and Free Evaluation Versions)
Red Salt Australia Pty Ltd Trading As Fishbowl Australia / Fishbowl New Zealand distributes the below stated software under license from ExpressTech LLC Trading as Fishbowl Inventory, 580 East Technology Ave, Orem Utah, USA 84097. Red Salt Australia Pty Ltd ("Fishbowl Australia / Fishbowl New Zealand") and the Customer identified in the accompanying Order Form ("Licensee") agree as follows with respect to any software identified in the Order Form, in addition to the general terms and conditions accompanying such Order Form:
1.1 Subject to the provisions contained herein, Fishbowl Australia / Fishbowl New Zealand grants to Licensee a non-transferable, non-exclusive license for the use of the copyrighted computer software product(s) specified in Licensee's accompanying Order Form and accompanying written documentation (the "Software") by each Authorized End-User of Licensee. For purposes of this Agreement, "Authorized End-User" means any person who is affiliated with Licensee as (a) a full-time or part-time employee, or (b) a full-time or part-time consultant.
1.2 If Licensee is licensing an Evaluation Version of the Software at no charge, Licensee may use the Software only for a limited evaluation period beginning on the date such Software is first downloaded by Licensee from Fishbowl Australia / Fishbowl New Zealand described in the Software Key accompanying the Evaluation Version (the "Key") and only for the number of concurrent Authorized Users as specified by the Key. Notwithstanding the provisions below, Licensee has no rights to any Software maintenance or upgrades during such evaluation period. Unless Licensee licenses and pays for a Standard Version of the Software, Licensee agrees to discontinue the use of such Evaluation Version promptly upon the expiration of the evaluation period and acknowledges that the Evaluation Version of the Software will automatically become disabled and unusable after such period (Licensee will thereafter have no access to any data entered into the Software).
1.3 If Licensee is licensing the Software for multiple Authorized Users as specified in the Order Form, then Fishbowl Australia / Fishbowl New Zealand grants Licensee the right to install the server portion of the Software on a single server for use concurrently by up to that number of specified Authorized End Users and no more. Prior to installing the server portion of the Software on any other computer, Licensee must first uninstall it from the original computer. Fishbowl Australia / Fishbowl New Zealand also grants Licensee a nontransferable, nonexclusive license to copy the client portion of the Software on an unlimited number of computers owned and controlled by Licensee, so long as the number of Authorized Users concurrently using the Software does not exceed the number specified in the Order Form.
1.4 In addition to the copies expressly permitted under Section 1.2 (if applicable), Licensee may make one (1) copy of the Software for archival and backup purposes. All copies of the Software shall remain subject to all terms of this Agreement, and Licensee shall ensure such copies include the copyright notice and any other proprietary notice set forth in the master media. Licensee shall maintain records of each copy it makes of the Software and the location of such copy. Fishbowl Australia / Fishbowl New Zealand retains all title and ownership rights to the Software, including all copies duplicated by Licensee under this Agreement. Licensee owns only the magnetic or other physical media on which the Software is originally or subsequently recorded or fixed.
1.5 The services and software and the products are protected by copyright, intellectual property laws and other laws that prevent unauthorized access and use. If you are not a Licensee, you are not permitted to access or use the services and software and the products for any purpose whatsoever. If you nevertheless access and use the services and software and the products without authorization, your access and use will be governed by theses terms and conditions and you will be liable to Fishbowl Australia / Fishbowl New Zealand for any breach of the terms and conditions as well as for unauthorized access and payment for use at the rates then applicable.
2.1 For the first year following the date of purchase, and for each annual period thereafter for which Licensee has paid Fishbowl Australia / Fishbowl New Zealand in full the annual Maintenance, Fishbowl Australia / Fishbowl New Zealand will provide Licensee with the following maintenance for the Software: (a) make available to Licensee at no additional charge, through downloading from Fishbowl Australia / Fishbowl New Zealand's Internet website, Software enhancements, upgrades and improvements, when released by Fishbowl Australia / Fishbowl New Zealand, (b)unlimited assistance in the use of the Software via telephone and email where Licensee is a current member of the Fishbowl Australia / Fishbowl New Zealand Ocean Support Program and services are delivered in accordance with the program. Licensee agrees that the determination of the extent of technical support to be provided by Fishbowl Australia / Fishbowl New Zealand rests exclusively with Fishbowl Australia / Fishbowl New Zealand in its discretion and that Fishbowl Australia / Fishbowl New Zealand is not required to correct any particular error or defect in the Software or Licensee's use of the Software. Fishbowl Australia / Fishbowl New Zealand may increase its annual subscription fee for the Ocean Support Program annually based on the renewal date or in line with an increase in software licenses.
2.2 Maintenance and support does not cover hardware, operating system, network or third party software, nor does it cover items resulting from Licensee's unauthorized use, misuse, misapplication or modification of the Software.
2.3 Maintenance and support will be provided only for the latest release version of the Software and any subsequent point releases.
3. Payment, Limited Return Policy
3.1 Unless specified otherwise on the Order Form, when licensing the Standard Version of the Software (not including the Free Evaluation Version), Licensee shall pay the licensing fee identified on the Order Form prior to downloading or otherwise using the Software. When licensing the Evaluation Version of the Software, Licensee shall pay the licensing fee identified on the Order Form prior to using the Standard Version of the Software.
4.1 Licensee shall use the Software under this Agreement only on computers which are either (a) owned or leased by Licensee and (b) controlled by Licensee.
4.2 Licensee agrees to use the Software only as indicated hereunder and may not modify, adapt, translate, rent or sublicense the Software or use it for any commercial timesharing or service bureau purpose.
4.3 The Software is protected by copyright laws. Licensee agrees to not create, or attempt to create, or permit to help others to create, the source code from the Software furnished pursuant to this Agreement. Licensee agrees to not reverse engineer, disassemble, decompile or otherwise reduce the Software to human-perceivable firm, disable any functionality which limits the use of the Software, create derivative works from the Software, or disclose confidential interfaces to the Software.
4.4 Licensee shall advise each Authorized End User that receives a copy of the Software that (a) the user is not permitted to copy the Software, and (b) the Software cannot be transferred.
4.5 The Software and documentation are provided with RESTRICTED RIGHTS.
5.1 Licensee may terminate this Agreement for any reason upon notice to Fishbowl Australia / Fishbowl New Zealand, but except as provided above under Fishbowl Australia / Fishbowl New Zealand's limited return policy, all license and support fees are non-refundable. Fishbowl Australia / Fishbowl New Zealand may in its discretion terminate this Agreement upon notice from Fishbowl Australia / Fishbowl New Zealand if Licensee fails to comply with any provision of this Agreement. All liability for breach of this Agreement shall survive such termination.
5.2 Upon termination, Licensee shall also uninstall and destroy the Software and make sure that it is no longer in use or usable. Sections 1.4, 3, 4.3, 5, 6 and 7 shall survive the termination of this Agreement.
6.1 The media on which the Software is furnished is warranted to be free of defects in workmanship and material under normal use for a period of sixty (60) days from the date of order. The sole responsibility of Fishbowl Australia / Fishbowl New Zealand and Licensee's exclusive remedy under this warranty will be to receive a replacement of the media free from defects in workmanship and materials. To obtain replacement, Licensee must return the defective media with proof of order. Media damaged by accident, abuse or misuse is not covered under this limited warranty.
6.2 Licensee and Licensee alone is responsible for determining which Software meets Licensee's particular needs, for installing the Software, and for the results obtained. Because Licensee may evaluate the Software free for the evaluation period, and may thereafter return the Software in compliance with Fishbowl Australia / Fishbowl New Zealand's limited return policy for an additional 30 days following date of purchase, the Software is licensed "as is" without warranty as to its performance, except for the media warranty provided above. THERE ARE NO OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SOFTWARE AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED. FURTHER, FISHBOWL AUSTRALIA / FISHBOWL NEW ZEALAND DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SOFTWARE OR WRITTEN MATERIALS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FISHBOWL AUSTRALIA / FISHBOWL NEW ZEALAND SHALL CREATE ANY WARRANTY OR IN ANY WAY EXPAND THE LIMITED WARRANTY PROVIDED UNDER THIS SECTION 6.2. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.
6.3 IN NO EVENT SHALL FISHBOWL AUSTRALIA / FISHBOWL NEW ZEALAND BE RESPONSIBLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF REVENUE OR PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA OR OTHER LOSS ARISING OUT OF LICENCEE'S USE OF OR INABILITY TO USE THE SOFTWARE, REGARDLESS OF THE THEORY OR BASIS OF LIABILITY AND EVEN IF FISHBOWL AUSTRALIA / FISHBOWL NEW ZEALAND HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. FISHBOWL AUSTRALIA / FISHBOWL NEW ZEALAND'S LIABILITY ARISING OUT OF THIS AGREEMENT SHALL IN NO EVENT EXCEED THE LICENSE AND OTHER FEES SET FORTH IN THE ORDER FORM.
7.1 The Software contains certain components that are licensed from the following third parties: EXPRESSTECH LLC JASPERREPORTS ITEXT JDOM FIREBIRD DATABASE The Software conforms to all licensing requirements stipulated by the various license holders listed above, with the specific details described in a file named "readme.txt" included in the Software. Source code that is required to be distributed with the Software is provided in the Software in a file named "source."
7.2 The parties agree that this Agreement and the Software may not be assigned, sublicensed or otherwise transferred by Licensee without the prior written consent of Fishbowl Australia / Fishbowl New Zealand.
7.3 Use of the services, software and product are further subject to the terms and conditions of use which were accepted at the time you completed your purchase from Fishbowl Australia / Fishbowl New Zealand.
[END OF ADDENDUM - SEE ORDER FORM AND SALES AGREEMENT IF APPLICABLE]
[END OF ADDENDUM - SEE ORDER FORM AND SALES AGREEMENT IF APPLICABLE]