IMPORTANT - READ CAREFULLY: This agreement (“Agreement”) is a legally binding agreement between you and N3V Games Pty Ltd, Australian Business Number ABN 43 118 743 534, covering your use of our products and services as set out below (“Services”). We will refer to ourselves in this Agreement as “we” or “us”. We are an Australian corporation with our headquarters in Queensland.
You must read this Agreement carefully before accessing or using the Services.
Your use of the Services is conditional on your acceptance of the terms set forth in this Agreement. By using or continuing to use the Services, you agree to be bound by this Agreement.
(a) We will provide the Services to you in accordance with this Agreement.
(b) This Agreement includes these standard terms and the details that are set out on our websites at the website links specified below.
(c) This Agreement covers your use of the following, which are “Services” provided under this Agreement as applicable:
(i) MyTrainz Account;
(ii) Trainz Forum;
(iii) Trainz Software;
(iv) Trainz Plus membership;
(v) Trainz Download Station;
(vi) Trainz Content Creator Program;
(vii) Content Creator Beta Testing Program;
(viii) Trainz Online Multiplayer (currently known as MPS);
(ix) Trainz Downloadable Content; and
(x) Any other Trainz services provided by us that are available online.
2. MyTrainz ACCOUNT
(a) You can create an Account via the website located at mytrainz.com.
(b) There is no fee to create an Account.
(c) You are not required to create an Account. However, certain Services are not available to you unless you create an Account.
(d) Each user must have their own Account.
(e) You must not create accounts for use by third parties, but you may create an Account for a family member where that family member authorises you to do so.
(f) Accounts must not be shared by or between users.
2.2 User Accounts
(a) When an account is created, you must:
(i) provide accurate, current and complete information for the indicated mandatory fields (including a valid email address); and
(ii) maintain and update information to keep your account details accurate, current and complete.
(b) If you supply us with any inaccurate, false or incomplete information (or fail to keep such information current), we have the right to terminate your account and access to the Services.
(c) You must not create accounts with or for the Services through unauthorized means, including but not limited to, by using an automated device, script, bot, spider, crawler, or scraper.
(d) You may close your account by submitting a request to https://support.trainzportal.com
2.3 Usernames and Passwords
(a) To create an account with us, you must select a unique username and password. The password must meet the requirements for password complexity as set out on our website.
(b) You are fully responsible for maintaining the confidentiality of your username and password, and for all activities that are conducted through or under your account.
(c) You must not under any circumstances share your password for the Services with any other person.
(d) You must not share, transfer, sell, rent, lend or otherwise dispose of a username or password for the Services (or attempt to do any of the foregoing). If you do so, your account may be terminated or suspended, and we do not have to give a refund to you in these circumstances.
(e) If we detect any misuse or suspected misuse of your login details (including the concurrent use of your login details or the use of your login details on more than the maximum allowable concurrent sessions), your account may be terminated or suspended, and we do not have to give a refund to you in these circumstances.
(f) You must inform us immediately if you suspect or become aware of a breach of security relating to your account and you must promptly change the password.
2.4 User Profile
(a) If you create an account with us, a user profile is automatically created for you.
(b) Your user profile can be searched and viewed by other users, including from the MyTrainz section of our website. If you visit or post on the Trainz Forum, information about you from your profile can also be viewed by other users.
(c) You can control whether some of the information in your user profile is made available to others from the MyTrainz “My Account” page and from the Trainz Forum “Your Account” page. The privacy settings for MyTrainz and the Trainz Forum are not fully linked, and a change in one profile may not be reflected in the other profile.
(d) You must ensure that your username and all public information in your user profile complies with the Code of Conduct for the Trainz Forum, as set out in clause 4 below.
(e) You do not own your username. At our own discretion we can allocate you a new username or allocate your username to someone else.
(f) You must not use another’s intellectual property in your username or user profile.
(g) You must not use domain names or web URLs in your username or user profile.
3. THE SERVICES
(a) Some Services can be accessed via the websites located at trainzsimulator.com or mytrainz.com. Some Services can be accessed using an App on a mobile device or on desktop, or using a supported gaming console (such as, for example, an Xbox).
(b) To use the Services, you need a computer, mobile device or supported gaming console with an up-to-date operating system and a fast internet connection, and a web browser if you are using a computer.
(c) You are responsible for all third-party costs associated with accessing the Services, including for example the fees charged by internet service providers or telecommunications carriers.
(e) We will provide the Services in a professional manner with due care and skill and in accordance with good industry practice.
(f) In providing the Services, we will comply with all relevant Laws.
(a) We implement industry standard security technologies and take reasonable measures consistent with commercially available security practices to secure the Services from unauthorized access and to protect the integrity and confidentiality of the content on the Services.
(b) However, any transmission of data over the internet is inherently risky. You acknowledge and agree that we are not responsible for the computer, console or mobile device and associated software that is used by you to access the Services, and for transmission of data over the internet.
(c) You are responsible for taking precautions to ensure that your computer, console or mobile device and associated software, and any network that you use, is up-to-date and secure.
(d) We make no representation and give no warranty regarding your access to the Services. Due to the nature of the internet and software programs, during your use of the Services, you may experience errors, outages, poor network performance and other issues that detract from use of the Services. While we take steps to maintain the Services, we do not warrant that the Services will be constantly available or warrant that you will have uninterrupted and error-free access to the Services.
(e) Due to regulatory or technical restrictions, you may not be able to access the Services from every location in the world. You should verify access prior to accepting this Agreement. We are not responsible for your inability to access the Service from a particular location.
3.3 Responsible Use of the Services
(a) You must use the Services in a responsible and reasonable manner. You must not use the Services in a way that is against the Law or that harms us, the Services or other users of the Services.
(b) You must not use the Services for any illegal, improper or unauthorized purpose. You agree to comply with all Laws applicable to your use of the Services.
(c) You must not attempt to restrict another user from using or enjoying the Services.
(d) You must not encourage or facilitate another person to violation this Agreement or to use the Services in an illegal or improper manner.
(e) Without limiting the foregoing, you must not:
(i) Attempt to gain access to, alter or disrupt any account, software, hardware (including, without limitation, the Services) or network relating to the Services without authorization;
(ii) Use the Services to create, store, reproduce, distribute or share pornographic or adult material;
(iii) Use the Services to create, store, reproduce, distribute or share defamatory material;
(iv) Use the Services to create, store, reproduce, distribute or share illegal material;
(v) Use automatic scripts or programs (including web crawlers) to access or attempt to gain access to the Services;
(vi) Attempt to access the Services other than through our designated websites or as otherwise permitted by us;
(vii) Remove or alter any copyright, trademark, logo or other proprietary notice or label appearing on or in the Services;
(viii) Reverse engineer, decompile or disassemble the Services, or otherwise attempt to derive the source code or trade secrets of the Services except as, and then only to the extent, expressly permitted by applicable Law;
(ix) Create any derivative works or adaptations of the Services;
(x) Rent, lease, lend-for-profit or provide commercial hosting of the Services, or otherwise provide or make available the Services to any other person for their use;
(xi) Resell the Services to any person;
(xii) Create a white label system using the Services;
(xiii) Change, modify adapt or alter the Services or change, modify or alter another website so as to falsely imply that it is associated with us or the Services;
(xiv) Frame any website provided via the Services; or
(xv) Use the Services other than as expressly permitted by this Agreement, or in any manner that we reasonably determine to be unreasonable, inappropriate or excessive.
(a) We may change, modify or remove some or all of the features of the Services.
(b) We may make available enhancements or updates to the Services but are under no obligation to do so.
(c) Where we choose to make available to you any patches, updates, add-ons or hot-fixes to the Services, this Agreement also applies to such changes unless they are accompanied by separate terms agreed to by you.
(d) We will provide you at least 2 months’ prior notice if we intend to discontinue material functionality of the Services. This notice will not be required if the 2 months’ notice period (i) would pose a security or intellectual property issue to us or the Services, or (ii) would cause us to violate any Law. If this change is detrimental to you, you may cancel the Service effective at the end of the 2 months’ notice period and you will receive a pro rata refund of any prepaid unused membership period.
(a) We periodically conduct maintenance in respect of the Services. During a maintenance period, some or all of the Services may be unavailable, or some features may not work as expected. We will endeavour to give you reasonable notice of any scheduled maintenance by posting a relevant notice on our website.
(b) We have the right to interrupt the Services from time to time, as and when we deem appropriate, to perform maintenance relating to the Services.
3.6 Links and Advertising
(a) The Services may contain hyperlinks and other pointers to websites operated by others. These linked websites are not under our control and we are not responsible for the content on them. We provide these hyperlinks to you as a convenience only, and the inclusion of any link does not imply any endorsement of the linked website by us. You visit such websites at your own risk.
(b) The Services may contain third party advertisements (including banner ads and full-page advertisements) which contain embedded hyperlinks or which include referral buttons to websites operated by others. All such advertising (including referral buttons and embedded hyperlinks) is paid for by the relevant third-party advertisers. These are not recommendations or endorsements by us.
(c) In some instances, the advertisement may contain representations or offers by the advertiser which you can accept by linking to the advertiser’s website and executing the relevant transaction. Such offers are not made by us, and the advertiser is solely responsible to you for the delivery of any goods or services you so acquire.
4. TRAINZ FORUM
(a) This clause 4 applies if you use the Trainz Forum.
(b) At the present time, the Trainz Forum is available at forums.auran.com.
(c) You are not required to use the Trainz Forum.
(d) The Trainz Forum is part of the Services. The other provisions of this Agreement relating to the Services also apply to your use of the Trainz Forum.
(e) You must have an Account to post on the Trainz Forum.
(f) You must comply with the Code of Conduct located at trainzsimulator.com/code-of-conduct
(g) A breach of the Code of Conduct is a breach of this Agreement.
(h) The Trainz Forums are public forums. Others can see what you post.
(i) Ideas expressed on the Trainz Forums are a public publication. Once published, the ideas can be used by others, including by us, and you will not be entitled to any payment in respect of ideas that you post or developments by others that result from the ideas posted.
(j) We do not pre-screen the content on the Trainz Forums. We may remove content that violates this Agreement (including the Code of Conduct). See the Code of Conduct for further details.
(k) You indemnify us for any Loss that we may incur as a result of any content posted by you on the Trainz Forum or arising from or relating to any breach by you of the Code of Conduct.
(l) We are not the publisher of any content posted by you on the Trainz Forum.
(m) We have no obligation to monitor the Trainz Forum but we may do so.
(n) You agree to the provisions of our Takedown Policy in respect of your Trainz Forum posts and comments.
5. TRAINZ SOFTWARE EULA
(a) This clause 5 applies if you have purchased the right to use Trainz Software (“the Software”) and only applies to the version of the Trainz Software that you have purchased.
(b) This clause 5 does not apply:
(i) if you have previously purchased a boxed product or disk version of the Trainz software, in which case the EULA included with the product applies; or
(ii) to Software used via a Trainz Plus Membership, in which case clause 6 applies.
5.2 The Software
(a) The Software includes:
(i) Driver, Surveyor, Test Track, Content Manager and any other modules or add-on packs that we choose to make available to you from time to time (“Trainz Modules”); and
(ii) Editors (including but not limited to the Surveyor module) and software exporters and utilities that allow you to create your own assets or modify our existing or third party assets for use within the Trainz Modules;
(iii) All documentation relating to Trainz and the Trainz Modules that are included in either electronic or paper form; and
(iv) All other associated media (including artwork, sound files, music and video) included with Trainz or the Trainz Modules or made available to you by us.
(a) Your permission to use the Software is subject to this Agreement including this clause 5.
(b) The Software is licensed to you, not sold.
(c) We grant to you a personal, non-transferable and non-exclusive license to install and use the Software in accordance with the licensing rules of the storefront where you acquired the Software.
(d) You have no right to use the Software, in whole or in part, for any purpose other than as specified in this Agreement. The rights granted to you in this Agreement are your only rights in relation to the Software.
(e) This Agreement does not grant you any right to enhancements or updates to the Software although we may make available such enhancements or updates to the Software as we see fit.
(f) Except for purposes expressly permitted by law, you must not reverse engineer, decompile or disassemble the Software or any of the files that are used by the Software.
(g) You must not use the Software for an illegal purpose.
(h) You are responsible for the supervision, management and control of the use of the Software.
(i) The Software includes various Trainz Modules but is licensed as a single product. Trainz Modules may not be separated for use on more than one computer.
(j) You must not rent, lease or lend-for-profit the Software unless you have obtained our prior written consent.
(k) Certain Trainz Modules and accompanying editors and exporters allow you to create your own assets for use by the Software by either:
creating a completely new work; or
modifying an existing asset provided by us or a third party, or derived or adapted from such existing asset.
(l) In the case of (i) above, you can distribute (for free or for payment) such new works as you see fit with no requirement to seek our approval or consent. However, you must not do so if we, acting reasonably, determine that the work is not a completely new work or that the work is a derivative or adaptation of another’s work (see (n) below), in which case (o) applies.
(m) In the case of (ii) above, you can only distribute (for free or for payment) those modified works that we reasonably consider to be substantially different to the original work on which your work is based or from which your work is derived.
(n) If the work that you create using the Software is considered by us to be a work that is derived from, adapted from or modified from an existing work of us or a third party, and is not substantially different to the original work, then you must not distribute (for free or for payment or otherwise) your work but you may use it for your own personal use within the Software. Our guidelines for content creation standards are available here: https://online.ts2009.com/mediaWiki/index.php/Art_Recommendations.
(o) In the event of a dispute over the application of (k) to (n) above, our decision is final.
6. TRAINZ PLUS MEMBERSHIP
6.1 Features of a Membership
(a) A Trainz Plus Membership provides you with the right to use defined Trainz Software and exclusive Trainz Plus functionality and content, as specified on https://info.trainzsimulator.com/trainz-plus
(b) Functionality and content provided as part of a Trainz Plus Membership will change over time.
(a) We have different Membership types. The features for each Membership are set out on our website and are subject to change. You can select the Membership type when you subscribe via our website.
(b) Memberships are for the specified period.
(c) The membership period commences on the date set that you subscribe (“Effective Date”).
(d) A different membership fee and associated billing period (“Membership Fee”) applies to each type of Membership. Details about our pricing, membership periods and membership types are available on our website at info.trainzsimulator.com/trainz-plus.
(e) You must have an Account before you purchase a Membership.
(f) You are not required to purchase a Membership but you do not receive the benefits of a Trainz Plus Membership if you do not purchase a Membership.
(g) You only receive the benefits of a Membership if you pay us the Membership Fee.
(h) Unless otherwise stated, the Membership Fee is either an annual prepaid fee or a monthly prepaid fee and the Membership Fee is payable in advance by credit card or Paypal.
(i) Membership Fees are non-refundable. Unless otherwise stated in this Agreement, if you cancel your Membership during the term, no part of the Membership Fee is refundable.
(j) We may use a payment gateway or payment service provider. We are not responsible for the operation or security of these third-party payment products. Please read the terms for any payment gateway prior to completing any transactions with us.
6.3 Renewal and Cancellation
(a) Your Membership will automatically renew at the end of the applicable membership period for one-year or one month periods (depending on the period of the Membership that you select), unless you cancel your Membership before the end of the then-current membership period in the “My Memberships” section of our website.
(b) The cancellation will take effect the day after the last day of the current membership period. You will not receive a refund or credit for any partial membership periods if you cancel early unless we are at fault.
6.4 Trainz Plus Benefits
(a) You will receive the Trainz Plus Membership benefits while you maintain a Membership.
6.5 Changes to Membership Fee
(a) We may change the Membership Fee that applies to your Membership from time to time and will communicate any price changes to you in advance and, if applicable, how to accept those changes.
(b) Price changes will take effect at the start of the next membership period following the date of the price change.
(c) You agree to accept the new fee by continuing to use your Membership after the Membership Fee change takes effect. If you do not agree with a fee change, you have the right to reject the change by terminating your Membership prior to the fee change taking effect.
7. TRAINZ DOWNLOAD STATION
(a) By uploading Content to the Trainz Download Station, or otherwise using the Trainz Download Station, you consent to and become bound by the provisions of this clause 7 as well as the other applicable terms of this Agreement.
(b) For all Content that you upload in the future or have uploaded in the past to the Trainz Download Station, you grant to us a transferable, worldwide, non-exclusive license to that Content so that we can use, display and redistribute the Content to third parties:
(i) by making the Content available for download from the Trainz Download Station for free or for payment; and/or
(ii) by including the Content on a CDROM or DVDROM (or other storage medium) that is made publicly available for sale or that is given away.
(c) If you submit Content to the Trainz Download Station, we may, in our absolute discretion, choose to include the Content in a product that we distribute (for free or for payment). If we include your content in a product, we may place your name in the credits for the relevant product, but you will not receive any payment.
(d) This is not a sale, transfer or any other conveyance of your Intellectual Property Rights held in your Content.
(e) We do not pay you to use your Content that you upload to the Trainz Download Station.
(f) We may remove any or all of your Content from the Trainz Download Station at any time and for any reason.
(g) Content on the Trainz Download Station cannot be directly deleted or altered by users. However, we can perform removals on your behalf if you request to delete the Content and we consider it appropriate to do so.
(h) We are not legally required to back-up, store, maintain or provide you with a back-up copy of any Content that you upload to the Trainz Download Station.
(i) You warrant to us and to other users of the Software and the Services that the Content that you upload or have uploaded in the past to the Trainz Download Station:
(i) is your original work, and has not been copied in whole or substantially for any other work;
(ii) is protected by your Intellectual Property Rights;
(iii) does not infringe any Intellectual Property Rights or moral rights of any person;
(iv) does not contain any 3D meshes, textures or other computer files created or distributed by us that have not been substantially modified;
(v) is free from computer viruses, harmful code, backdoors, trapdoors, lockups, and ransomware;
(vi) does not contain any material that is contract to Law, defamatory, obscene, offensive, hateful or inflammatory; and
(vii) is appropriate for download and use by other users of the Software and the Services, including minors.
(j) You agree to the provisions of our Takedown Policy in respect of the Content that you upload or have uploaded in the past to the Trainz Download Station.
(k) If you download content created by others from the Trainz Download Station, we make no warranties regarding that content. We are not responsible for that content, and it is provided “as is”. It is user generated content, not content developed or tested by us. If you become aware of any problem or issues with such content, please let us know.
8. TRAINZ CONTENT CREATOR PROGRAM
(a) You may apply to be a Registered Content Creator and become a part of the Trainz Content Creator Program (“TCCP”).
(b) You have no obligation to be a Registered Content Creator.
(c) You must have an Account to be a Registered Content Creator.
(d) If you are accepted by us to be a Registered Content Creator, then this clause 8 applies as well as the other applicable terms of this Agreement.
(e) If you have been accepted by us to be a Registered Content Creator, you can withdraw from the TCCP at any time by giving us notice.
(f) We can cancel your involvement in the TCCP at any time.
(g) If you are part of the TCCP, we may provide you with Protected Material. You must not make the Protected Material available to any other person unless we consent in writing to your doing so.
(h) If you cease to be part of the TCCP or if we request, you must return the Protected Material to us and cease use of it.
(i) You may provide us with Content that you have created to be part of the TCCP.
(j) For all Content that you provide to us as part of the TCCP or have provided to us in the past as part of the TCCP, you grant to us a transferable, irrevocable, worldwide, non-exclusive license to that Content to use, reproduce or cause to be reproduced, distribute, have distributed, publicly display, perform, market, promote, sell, license, and otherwise exploit that Content, including (without limitation) to:
(i) Incorporate the Content into the Software and the Services (including all versions, platforms and formats);
(ii) Use the Content for marketing and promotional purposes;
(iii) Market, promote and distribute the Content via our online stores and marketplaces or any other distribution channel or technology; and
(iv) Modify, create derivative works of, adapt, and change the Content, including for stylistic, compatibility, localisation, market suitability, and performance purposes as determined by us to be necessary or desirable.
(k) You warrant to us and to other users of the Software and the Services that the Content that you upload or have uploaded in the past to as part of the TCCP:
(i) is your original work, and has not been copied in whole or substantially for any other work;
(ii) is protected by your Intellectual Property Rights;
(iii) does not infringe any Intellectual Property Rights or moral rights of any person;
(iv) does not contain any 3D meshes, textures or other computer files created or distributed by us that have not been substantially modified;
(v) is fit for sale, and as far as you are aware, is not defective in any material respect;
(vi) is free from computer viruses, harmful code, backdoors, trapdoors, lockups, and ransomware;
(vii) does not contain any material that is contract to Law, defamatory, obscene, offensive, hateful or inflammatory; and
(viii) is appropriate for download and use by other users of the Software and the Services, including minors.
(l) You warrant to us and to other users of the Software and the Services that you have not granted any other person rights that are inconsistent with the rights granted by you to us in this Agreement.
(m) You agree to the provisions of our Takedown Policy in respect of the Content that you provide to us as part of the TCCP or have provided to us in the past as part of the TCCP.
(n) We will pay you a share of revenue relating to our distribution of your Content licensed to us under this clause 8. The calculation of the share of revenue is set out in the TCCP Agreement.
(o) We have no obligation to advertise, distribute, sell, market, promote, use or exploit the Content.
(p) We may not accept an item of Content into or may withdraw an item of Content from the TCCP program at any time and for any reason in our absolute discretion.
(q) The decision to decline or remove any specific item of Content does not affect the treatment of other Content items under this Agreement.
(r) We will not be liable to you or any other person if Content is not available for any period of time or at all.
(s) You must use the TCCP upload system to upload and manage Content.
(t) We are not responsible if your Content does not successfully upload or reach us.
(u) You must follow our instructions and directions regarding participation in the TCCP.
(v) Once uploaded, we undertake to review the Content with respect to quality, performance and overall suitability. Content will then be marked “Approved” or “Failed” and you will be advised. Any defects or suggested improvements will be noted via the notification system for that submitted Content and passed to you for rectification.
(w) You are encouraged to provide updates to existing items of Content. We are under no obligation to use, distribute, promote or exploit these updates. Each update is treated as Content hereunder.
(x) Content that has been approved for the TCCP cannot be removed by you unless we consent. Removal will not prevent existing users from continuing to use Content obtained prior to the removal and will not remove content from any existing or soon-to-be released Software in which the Content is included.
(y) Attempts to deliberately skew the usage or download statistics for Content can be blocked. Where you are found to be participating in or encouraging this behaviour, you may be removed from the TCCP and will not be entitled to any further payments of revenue shares.
(z) We will take reasonable steps to ensure that Content cannot be downloaded or used by an unauthorised user, however we will not be liable for any losses incurred if this occurs.
(aa) We do not guarantee any revenue or volume of sales in respect of the TCCP. Any examples or past sales figures that we provide are for illustration only.
9. TRAINZ CONTENT CREATOR BETA TESTING PROGRAM
(a) You may apply to be a Beta Tester to test Content created by others.
(b) You have no obligation to be a Beta Tester.
(c) You must have an Account to be a Beta Tester.
(d) If you are accepted by us to be a Beta Tester, then this clause 9 applies as well as the other applicable terms of this Agreement.
(e) If you have been accepted by us to be a Beta Tester, you can withdraw from the Beta Testing Program at any time by giving us notice.
(f) We have no obligation to have you conduct any tests and can cancel your involvement in the Beta Testing Program at any time.
(g) As part of the Beta Testing Program, you will be asked to test Content. If so:
(i) You must comply with any testing instructions.
(ii) You must treat the creator of the Content with respect and provide constructive professional comments, and not personal, offensive, abusive or hateful comments.
(iii) You will need the specified version of the Software which you must obtain at your own cost.
(iv) You must not disclose the Content to anyone else unless we agree or unless the Content is publicly released.
(v) You have a non-exclusive non-transferrable right to use the Content during the period of the testing.
(vi) We ask that you provide your testing report to us in a timely manner.
(h) We will not pay you to be part of the Beta Testing Program or to be a Beta Tester.
(i) You do not pay us for the Content provided to you for Beta Testing.
(j) Other people may also be Beta Testers.
(k) You acknowledge that the Content may not be suitable for public release, may have errors and may not work appropriately. You accept all risks when conducting testing as part of the Beta Testing Program.
(l) If you download Content created by others as part of the Beta Testing Program, we make no warranties regarding that Content. We are not responsible for that Content, and it is provided “as is” for testing. It is user generated content, not content developed or tested by us.
(m) You have no right to continue to use the Content when the testing period for that Content has ended.
10. INTELLECTUAL PROPERTY
(a) The Services are our intellectual property.
(b) Intellectual Property Rights in User Generated Content remains with the owner of that User Generated Content, unless explicitly agreed otherwise.
(c) Copyright and other intellectual property laws protect the Services.
(d) We will not knowingly or intentionally infringe any Intellectual Property Rights when providing the Services.
(e) We do not indemnify you for any Loss arising from or relating to your use of the Software or the Services, including any claim of infringement of Intellectual Property Rights, unless we are required by Law to do so.
(f) You are responsible for ensuring that you do not, in using the Services, infringe or violate any other person’s Intellectual Property Rights, misappropriate confidential information, or breach any Laws.
(g) From time to time, you may send us or post on the Trainz Forum suggestions, materials, information, ideas or concepts relating to the Services (“Ideas”). You hereby grant us a royalty-free, perpetual, irrevocable, non-exclusive right (including any moral rights) to use such Ideas as we see fit, without payment of a fee. Without limiting the foregoing, no Idea will be subject to any confidentiality obligation.
(h) You have no right to use our trademarks or brands unless explicitly provided for in a separate trademark licence agreement.
(i) TRAINZ is our trademark.
(j) You acknowledge that we own all rights, including Intellectual Property Rights in the Software and the Services, other than Content created by pursuant to clauses 6 and 7 above.
11. PRIVACY AND SECURITY
12. FORCE MAJEURE
(a) Subject to the requirement to give notice under this clause, if the performance by any party (Affected Party) of all or any of its obligations under this Agreement is prevented or delayed (in whole or in part) due to any Force Majeure Event, this Agreement will continue and remain in effect but the Affected Party will not be in breach of this Agreement for that reason only, and the Affected Party will be granted a reasonable extension of time to complete performance of its affected obligations.
(b) The Affected Party must promptly after becoming aware of a Force Majeure Event, give written notice to the other party of the nature of the Force Majeure Event and the way and the extent to which its obligations are prevented or delayed and notify the other party of any material change in these matters and use its reasonable endeavours to limit the effects of the Force Majeure Event, and promptly carry out its obligations as soon as, and to the extent that, it is able to do so.
(a) If we suspect that you have breached any term of this Agreement, we have the right to (without limitation) to:
(i) Suspend your access to the Services; or
(ii) Terminate your access to the Services.
(b) We reserve the right to take any such action without prior notice.
(c) If your access to the Services are suspended or terminated due to your fault, breach or misconduct, you will not be entitled to damages, or any refund or reimbursement of Membership Fees or other amounts previously paid by or charged to you.
(a) Either party may terminate this Agreement with immediate effect by giving written notice to the other party at any time if:
(i) the other party experiences an Insolvency Event; or
(ii) the other party breaches any material provision of this Agreement which is incapable of being remedied, or where the breach is capable of being remedied, fails to remedy the breach within 14 days after receiving written notice from the terminating party requiring it to do so.
(b) You may terminate this Agreement on written notice to us for any reason, at any time and without cause. However, as set out above, you may not be entitled to a refund of prepaid fees.
(c) We may terminate this Agreement immediately by written notice to you if there is a change in Law that materially or permanently prevents us from providing the Services to you.
(d) Upon termination of this Agreement, your right to access the Services ceases. For example, without limitation, your Account will be closed and any benefits for a TRAINZ Plus Membership will cease.
15. WARRANTIES, INDEMNITY AND LIMITATIONS
(a) Each party warrants that it:
(i) has the authority to enter into and perform its obligations under this Agreement and that this Agreement has been duly executed and is a legal, valid and binding Agreement; and
(ii) will always comply with applicable Laws.
(b) You warrant and represent that:
(i) You will comply with this Agreement; and
(ii) You will not infringe any person’s Intellectual Property Rights while using the Services.
(a) You hereby defend, hold harmless and indemnify us and our Personnel (the Indemnified Parties) from and against any Loss suffered or incurred by the Indemnified Parties arising out of or in connection with any material breach by you of any provision of this Agreement including any warranty in this Agreement, or that the Indemnified Parties may suffer or incur arising out of or relating to:
(i) your use or misuse of the Services;
(ii) in respect of any claim made or legal or regulatory action brought against the Indemnified Parties arising out of or relating to your conduct that is a misuse of the Services or breach of this Agreement;
(iii) use, storage, copying or distribution of your Content via the Trainz Download Station or the Trainz Content Creator Program; or
(iv) allowing others to use your Content that is made available on the Trainz Download Station or as part of the Trainz Content Creator Program
(a) Without limiting any other term of this Agreement, we are not responsible for:
(i) Internet, electronic, hardware, software, network or other computer-related failures, malfunctions or errors;
(ii) Any disruptions, damages, losses, failures or errors that are caused by events or occurrences that are beyond our control; or
(iii) Typographical, processing, mechanical or human errors.
(b) Subject to the express provisions of this Agreement, we provide the Services strictly on an “as-is” and “as available” basis, and to the maximum extent permitted by law, we exclude all implied and statutory warranties, terms, conditions or undertakings that the Services will be:
(i) Available at any particular time;
(ii) Secure or error-free;
(iii) Fit for any particular purpose; or
(iv) Will meet any standard or specification.
(c) If we are found to be liable to you (including in contract, tort (including negligence) or otherwise), our liability is limited in all circumstances to one of the following options, as selected by us:
(i) Resupply of the Services;
(ii) Supply of similar Services;
(iii) Refunding the amount you paid for the Services;
(iv) Refunding one month’s Membership Fees;
(v) Fixing the Services (if appropriate); or
(vi) Paying someone else to fix the Services (if appropriate).
(d) Notwithstanding sub-clause (c) above, to the fullest extent permitted by applicable Law, our total cumulative liability to you in connection with this Agreement, whether in contract or tort (including negligence) or otherwise, will not exceed AUD $100.
(e) To the fullest extent permitted by applicable law, we hereby expressly disclaim all implied or statutory warranties, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, non-infringement, title, reliability, accuracy, completeness and quiet enjoyment.
(f) Notwithstanding any other clause of this Agreement, to the extent permitted by law, we exclude all liability, including in tort (including negligence), contract and otherwise, for any loss of or damage to data, loss of profits, loss of revenue, loss of privacy, loss of enjoyment, damage to reputation and goodwill, and loss of business, and any consequential, indirect or special loss or damage.
(g) Our liability under this Agreement will be reduced proportionally to the extent to which any loss was caused or contributed to by any negligence or other wrongful act or omission of you.
(a) If you are in Australia or subject to Australian GST, then this clause applies.
(b) If GST is payable on a supply made under or in connection with this Agreement, the party providing the consideration for that supply must pay as additional consideration an amount equal to the amount of GST payable on that supply.
(c) Unless otherwise stated, all amounts referred to in this Agreement, including the Membership Fees, are stated on a GST exclusive basis.
(d) If an adjustment event occurs in relation to a supply made under or in connection with this Agreement, the GST payable on that supply will be recalculated to reflect that adjustment and an appropriate payment will be made between the parties.
(e) In providing an invoice, a party shall provide proper tax invoices if GST is applicable to the Fees.
(f) Terms which have a defined meaning in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) shall have that meaning in this Agreement.
17. ASSIGNMENT AND SUBCONTRACTING
(a) You must not assign or novate, directly or indirectly, any of its rights or obligations under this Agreement without the prior written consent of us. We may assign or novate all of part of this Agreement on written notice to you. You are not an agent or employee of us. We are not an agent or employee of you.
(b) Nothing contained or implied in this Agreement means that you are a partner, agent or legal representative of us for any purpose, or creates any partnership, agency or trust.
(a) Without limiting any other provision of this agreement, clauses 10, 14, 15.2, 15.3, 20 and 21, and any other clauses which should by their nature survive termination of this Agreement, survive termination or expiry of this Agreement for any reason.
19. NO UPTIME GUARANTEE
(a) We do not guarantee 24 hours uptime of the Services.
(a) Any notice, demand, consent or other communication (a Notice) given or made under this Agreement must be in writing and signed by the sender or a person duly authorised by the sender.
(b) We may deliver notices to you at the email address that you provided to us that is in your account profile.
(c) You may deliver notices to us via our customer support system located at support.trainzportal.com.
21. DISPUTE RESOLUTION
(a) If any dispute arises in relation to the Services or this Agreement, you agree to:
First contact us to discuss. If we do not resolve the dispute within 30 days, then:
Any dispute, controversy or claim arising under, out of or relating to this Agreement and any subsequent amendments of this Agreement, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be referred to and finally determined by arbitration in accordance with the WIPO Expedited Arbitration Rules. The place of arbitration shall be Brisbane, Australia. The language to be used in the arbitral proceedings shall be English. The dispute, controversy or claim shall be decided in accordance with the law of Queensland, Australia.
(b) Nothing in this clause prevents a party from seeking urgent injunctive relief before an appropriate court.
(a) We may amend this Agreement at any time at our sole discretion. We will notify you of any such amendments by e-mail or online posting or when you next use the Service.
(b) We will notify you or publish such amendments on our website at least 10 days before the change is in force.
(c) If you do not agree to such amendments, then you must stop using the Services; if you continue using the Service after the date on which any such amendments come into force, you will be deemed to have agreed to such amendments.
(d) If the amendment is unfavourable to you, then you may terminate this Agreement before the amendment comes into effect and you will receive a pro rata refund of any prepaid Membership Fee.
(a) This Agreement contains the entire agreement between the parties with respect to its subject matter.
(b) No failure to exercise or delay in exercising any right, power or remedy under this Agreement operates as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.
(c) The rights, powers and remedies provided to a party in this Agreement are in addition to, and do not exclude or limit, any right, power or remedy provided by law or equity or any agreement.
(d) Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.
(e) Each party must bear its own costs arising out of the negotiation, preparation and execution of this Agreement.
(f) This Agreement and, to the extent permitted by law, all related matters including non-contractual matters, is governed by the laws of Queensland, Australia. In relation to such matters each party irrevocably accepts the non-exclusive jurisdiction of courts with jurisdiction in Queensland and waives any right to object to the venue on any ground.
24. DEFINITIONS AND INTERPRETATION
The following definitions apply unless the context requires otherwise.
Account means a MyTrainz account.
Commencement Date is the date that you subscribe online, or if your use is the subject of a signed written agreement, the date set out in that signed written agreement as the Commencement Date.
Content means any user generated content, comments or assets that you provide to us.
Force Majeure Event affecting a party means a circumstance beyond the reasonable control of that party causing that party to be unable to observe or perform on time an obligation under this Agreement, including acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, revolution and acts of war and war, general strikes (other than of its own staff), embargo, or power, water and other utility shortage.
An Insolvency Event occurs in respect of a person where:
(a) a party ceases, suspends or threatens to cease or suspend the conduct of all or a substantial part of its business or disposes of or threatens to dispose of a substantial part of its assets;
(b) a party becomes unable to pay its debts when they fall due, or stops or suspends or threatens to stop or suspend payment of all or a class of its debts;
(c) a party becomes or is (including under legislation) deemed or presumed to be insolvent;
(d) a party has a receiver, manager, administrator, administrative receiver or similar officer appointed in respect of it or the whole or any part of its assets or business;
(e) any composition or arrangement is made with any one or more classes of its creditors;
(f) except for the purpose of solvent amalgamation or reconstruction, an order, application or resolution is made, proposed or passed for its winding up, dissolution, administration or liquidation;
(g) a party enters into liquidation whether compulsorily or voluntarily; or
(h) any analogous or comparable event takes place in any jurisdiction.
Intellectual Property Rights means all industrial and intellectual property rights of any kind including but not limited to copyrights (including rights in computer software), trade marks, service marks, designs, patents, trade secrets, semi-conductor or circuit layout rights, trade, business, domain or company names, rights in Confidential Information, know how and other proprietary rights (whether or not any of these are registered and including any application, or right to apply, for registration) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these, which may subsist anywhere in the world, but excludes moral rights, and similar personal rights, which by law are non-assignable.
Law means all applicable laws including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by laws, rules, regulatory principles, requirements and determinations, mandatory codes of conduct and standards, writs, orders, injunctions and judgments, and includes any Privacy Laws.
Loss means any claim, loss, damage, liability, cost, charge or expense (including legal expenses on a full indemnity basis), however arising, and whether present or future, fixed or unascertained, actual or contingent.
Membership means a subscription for the Trainz Plus service, as described on our website at info.trainzsimulator.com/trainz-plus.
Membership Fee is specified when you take up a Membership online on our website for a Trainz Plus Membership.
Personal Information has the meaning given to that term in the Australian Privacy Act 1988 (Cth).
Personnel means, in respect of a person, any officer, employee, contractor, servant, agent, or other person under the person's direct or indirect control and includes any subcontractors.
Privacy Laws means all legislation, principles, industry codes and policies, as amended or replaced from time to time, which relate to the collection, use, disclosure, storage or granting of access rights to Personal Information, and includes the Privacy Act 1988 (Cth).
Services are defined in clause 1.
Headings are for convenience only and do not affect interpretation. The following rules apply unless the context requires otherwise.
(a) the singular includes the plural and conversely;
(b) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(c) a reference to a person includes any body corporate, unincorporated body or other entity and conversely;
(d) a reference to any party to this Agreement or any other agreement or document includes the party’s successors and permitted assigns;
(e) a reference to any agreement or document (including a reference to this Agreement) is to that agreement or document as amended, notated, supplemented, varied or replaced from time to time, where applicable, in accordance with this Agreement or that other agreement or document;
(f) a reference to any legislation or to any provision of any legislation includes any modification or re-enactment of it, any legislative provision substituted for it and all regulations and statutory instruments issued under it;
(g) a reference to conduct includes any omissions, statement or undertaking, whether or not in writing;
(h) a reference to includes, means includes without limitation; and
(i) all references to $ are to Australian dollars, unless otherwise specified.
Effective From 12 January 2024
Our Contact Details
Please contact us via our customer support system located at support.trainzportal.com.