TERMS OF USE

TERMS OF USE FOR THE DAIKIN CALCULATOR SOFTWARE

between Daikin Australia Pty Limited (ABN 62 000 172 967) (referred to in these Terms of Use as Daikin, we, our or us) and You, the user of the Software.

The Terms of Use set out below (the Agreement) governs your use of our calculator software (the Software), and form a binding agreement between Daikin and you in relation to your use of the Software.

By using the Software, you agree that the then current version of this Agreement applies to your use of the Software. If you do not agree it, you should not use the Software. If you have any questions, please contact us at 02 9725 8888.

We may, from time to time, update or amend this Agreement in its sole discretion. Any amendments will be emailed to you and will take effect 7 days after such posting.

1. The Software

1.1 Subject to clause 1.2, we will make the Software available to you on the terms and conditions set out in this Agreement. You must use the Software only in accordance with this Agreement.

1.2 Notwithstanding anything in this Agreement, certain legislation including the Competition and Consumer Act 2010 (Cth), may imply warranties, conditions or guarantees or impose obligations or remedies which cannot be excluded, restricted or modified except to a limited extent. To the extent that such legislation applies, this Agreement must be read subject to those statutory provisions and nothing in this Agreement is intended to alter or restrict the operation of such provisions.

2. Acknowledgement

2.1 You acknowledge that your use of this Software and any resulting data is as a reference guide only and such data should not be relied upon, or represented to customers, as being completely accurate. The results will also depend on the accuracy of the input data. Various other factors may also affect the ultimate performance of the Daikin equipment, such as environmental factors and actual use, which may not be reflected in the Software results.

3. Intellectual Property

3.1 You may use the Software, including Content, only in the manner permitted by this Agreement. You must not do anything which breaches or otherwise interferes with our intellectual property rights or any of our other third party licensors.

3.2 Nothing in this Agreement constitutes a transfer of any intellectual property rights. All intellectual property rights (including, without limitation, copyright, trademarks, patents, design rights and all other forms of intellectual property rights existing in the world) in the Software, including all Content, are owned by or licensed to us.

3.3 You must not distribute, reproduce, publish, alter, modify or create derivative works from any Content without our prior written permission and you must not exploit any Content for commercial benefit.

Content means all Company content contained on the Software (including without limitation all software, text, graphics, videos, sounds, scripts, photos, audio-visual material, icons, photographs, databases, trade marks and other information and materials).

4. Software Access and Availability

4.1 We reserve the right to modify, discontinue or disable the Software or any part of the Software (on a permanent or temporary basis) at any time. We will, where reasonably practicable and possible, endeavour to provide you with prior notice of such modifications, discontinuations or disabling by posting such notice on the Software.

4.2 If you materially breach the terms of this Agreement, we may (at our option, and without limiting the remedies available to us in any way) bar you from accessing the Software on a permanent or temporary basis. If this occurs, you must not access or use the Software during the period of your suspension.

5. Software Use

5.1 You must not use the Software to:

(a) upload or send any content that is, or may be reasonably considered likely to be, material that:

(i) is false or misleading, abusive, harassing, threatening, defamatory, offensive, humiliating, vulgar, obscene, pornographic, racist, discriminatory or invasive of another's privacy;

(ii) infringes the intellectual property rights of another party;

(iii) is not owned by you;

(iv) might encourage any criminal activity;

(v) contravenes any applicable laws, regulations, codes or standards;

(vi) disturbs or damages the Software or its Content;

(vii) damages us or our reputation; or

(viii) otherwise breaches this Agreement;

5.2 You must not violate the security of, or otherwise hack into, the Software.

Hack means any unauthorised access, malicious damage and/or interference and includes, without limitation, spamming, propagating viruses, worms or other types of malicious programs, deliberate attempts to overload a computer system, broadcast attacks or any other method designed to damage or interfere with the operation of a computer system or Software.

5.3 Without limiting clauses 5.1 and 5.2 above, you must comply with all applicable laws, regulations, codes or standards when using the Software.

6. Privacy

6.1 Any personal information collected by us through the Software will be handled in accordance with our Privacy Policy, the terms of which are available at https://www.daikin.com.au/privacy-policy.

7. Liability

7.1 To the fullest extent permitted by law but subject always to clauses 1.2 and 12.2:

(a) the Software and all Content is provided to you "as is" and on an "as available" basis, without any representation or endorsement and without warranty or guarantee of any kind and we exclude all representations, warranties, guarantees, terms and conditions, whether express or implied (and including, without limitation, those implied by statute, custom, law or otherwise) except as expressly set out in this Agreement;

(b) we do not guarantee continuous, uninterrupted or secure access to the Software. As a result, you may at times experience disruption or other difficulties in using the Software;

(c) we exclude all liability for any damages or loss of any kind (including without limitation indirect, consequential, special, punitive or exemplary damages or any loss of business, interest, goodwill, revenue, profit or loss or corruption of data) arising in connection with your access to, or use of, or inability to use or access the Software or otherwise in connection with:

(i) your use of, or reliance on, the Software (or in any of the Content) however caused (including, without limitation, damage or loss arising in contract, tort (including, without limitation, negligence) statute or otherwise);

(ii) any disruption or other difficulties in accessing or using the Software; or

(iii) the accuracy, timeliness, quality, utility or completeness of the information contained on, or produced by, the Software (or in any of the Content).

7.2 If the statutory provisions outlined in clause 1.2 apply, notwithstanding any other provision of this Agreement, to the extent that we are entitled to do so, we limit our liability in respect of any claim under those provisions to (at our option):

(a) in the case of services, the supply of the services again or the payment of the cost of having services supplied again; and

(b) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of such goods, the payment of the cost of replacing the goods or acquiring equivalent goods, or the payment of the cost of having the goods repaired.

7.3 You agree to fully compensate and hold harmless us and our officers, employees and agents from and against reasonable liability, loss, damage, costs and expense (including, without limitation, reasonable legal expenses) and penalties suffered or incurred by any of us arising out of:

(a) your material breach of this Agreement (noting that for the purposes of this clause, any breach of clause 3 or 5 will be deemed material); or

(b) any fraudulent or unlawful behaviour by or on behalf of you.

8. General

8.1 We may provide you with notices in connection with this Agreement by email or mail if you have provided contact details for that purpose.

8.2 This Agreement and any other documents referred to in this Agreement is the entire agreement of the parties about the subject matter of this Agreement and supersedes all other representations, arrangements, understandings or agreements and all other communications.

8.3 If a provision of this Agreement is invalid or unenforceable in a jurisdiction:

(a) it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability; and

(b) that fact does not affect the validity or enforceability of that provision in another jurisdiction or the remaining provisions.

8.4 This Agreement is governed by the laws of New South Wales, Australia, and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales and waive, without limitation, any claim or objection based on absence of jurisdiction or inconvenient forum.

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