CUSTOMWARE PRODUCT LICENSE AGREEMENT

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IMPORTANT NOTICE:

You must read this Product License Agreement (“Agreement”) carefully before completing your order for the Product. This Agreement sets out the terms and conditions on which CustomWare licenses the Product to the Licensee. To complete your order for the Product, you must first scroll down to the end of this Agreement and accept these terms and conditions. You represent and warrant that you have authority to enter into this Agreement with CustomWare on behalf of the Licensee, that you have read the terms and conditions set out herein and that the Licensee agrees to be bound by the terms and conditions. By ordering the Product you, on behalf of the Licensee, agree to be bound by the terms and conditions of this Agreement.

 

1. Definitions

CustomWare means CustomWare Asia Pacific Pty Ltd (ABN 46 097 719 652) of Level 13, 8-20 Napier Street, North Sydney, New South Wales 2060 Australia.

  • Authorised Person means a licensed user of the Product for whom the Licensee has paid the License Fee to CustomWare.
  • Authorised Use means, the installation of the Product on a physical server located at the Authorised Site, and use of the Product by an Authorised Person at the Authorised Site for the Licensee’s internal business purposes in accordance with the terms of this Agreement.
  • Authorised Site means the business premises of the Licensee from time to time.
  • Product means each product to which this order relates, as selected by you, and includes any updates to or for the Product provided by CustomWare to the Licensee from time to time.
  • Licence Fee means the total amount paid and payable to CustomWare by the Licensee for the Product from time to time.
  • Licensee means the person, company, organisation or other entity on whose behalf you are ordering the Product and entering into this Agreement.
  • Support Plan means the defined support program that applies to the Product as detailed in the CustomWare Support Plan document as amended by CustomWare from time to time.
  • Term has the meaning given in clause 11 and includes any extension of the Term in accordance with clause 11.

 

2. Grant of License

Subject to the terms of this Agreement, CustomWare grants to the Licensee, and the Licensee accepts from CustomWare a non-exclusive, non-transferable, non-sublicensable limited license to use the Product for the Authorised Use.

Licensee may make a limited number of copies of the Product as is strictly necessary for purposes of testing and internal development (“Non-Production Purposes“). For clarity, Licensee’s employees may use the Product for these Non-Production Purposes, and Licensee will be responsible for their compliance with this Agreement on all the same terms as for Authorised Persons, except that these users will not count as Licensee’s Authorised Persons IF they are only using the Product for Non Production Purposes, and Licensee will not need to pay additional fees for these users.

 

3. No Warranty

To the extent permitted by law, and subject to clause 5, the Licensee acknowledges and agrees that: (1) CustomWare gives no guarantee and makes no representation as to the correctness or completeness of the Product; and (2) the Product is provided on an “as is” basis without warranty, express or implied, of any kind or nature, including, but not limited to, any warranties of performance or merchantability or fitness for a particular purpose.

 

4. Exclusion of Liability

To the extent permitted by law, and subject to clause 5, CustomWare will not be liable to any person for any loss, damage, cost, expense or other claim (including, without limitation, consequential damages and loss of profits) in relation to the Product including, without limitation, arising from or relating to: (1) any use or reliance on a Product by the person; (2) any errors in and/or omissions from the Product and/or any information contained in the Product); or (3) any delay, interruption or other failure in the use or operation of the Product.

 

5. Implied Terms

If any law implies in this Agreement any term, condition or warranty which cannot be excluded or limited, then to the extent permitted by law, the liability of CustomWare for breach of any such term, condition or warranty is limited to: (1) in the case of goods, at CustomWare’s option (A) the re-supply of the goods, or of equivalent goods; or (B) the payment of the cost of having the goods supplied again; and (2) in the case of services, at CustomWare’s option (A) the re-supply of the services; or (B) the payment of the cost of having the services supplied again.

 

6. CustomWare’s Obligations

CustomWare will provide the Licensee with basic technical support for the Product, as defined in the Support Plan as amended by CustomWare from time to time, during the Term.

 

7. Licensee’s Obligations

The Licensee must at all times: (a) ensure that it permits only Authorised Persons to use the Product and only for the Authorised Use at the Authorised Site in accordance with the terms and conditions of this Agreement; (b) install all updates and enhancements which CustomWare reasonably determines to be necessary to ensure the Licensee’s continued and effective use of the Product; (c) immediately advise CustomWare in writing if the Licensee becomes aware of any unauthorised use of the Product by any person.

 

8. Unauthorised Use and Distribution

Where as a result of any deliberate or negligent act or omission by the Licensee, the Product is supplied to or used by any person (other than an Authorised Person) without the prior written consent of CustomWare, CustomWare will immediately have the right (in addition to any other right or claim that CustomWare may have against the Licensee) to retroactively charge the Licensee (in addition to the Licence Fee and any other fees paid or payable by the Licensee under or in relation to this Agreement) a fee equal to the Licence Fee multiplied by the number of persons to or by whom the Product has been supplied or used without the prior written consent of CustomWare (whether for gain or sale or otherwise).

 

9. Investigation of Unauthorised Use and Distribution

Where, after due investigation, CustomWare reasonably suspects that a Product has been supplied to or used by any person (other than an Authorised Person) without CustomWare’s prior written consent, the Licensee must, on CustomWare’s request, provide CustomWare with an unqualified certificate executed by the Licensee’s auditor at the Licensee’s cost specifying the total number and type of users of the Product so that CustomWare may ascertain whether it may exercise its rights under clause 8.

 

10. Licensee’s Restrictions

Except to the extent that any laws prevent CustomWare restraining the Licensee from doing so, the Licensee must not without the prior written consent of CustomWare (which may be withheld and which may include certain conditions, at CustomWare’s discretion): (a) decompile, reverse engineer, disassemble, modify, adapt, create derivative works from, the Product or otherwise attempt to derive, the source code of the Product; (b) sell, redistribute, reproduce, transmit, circulate, disseminate, translate or reduce to or from any electronic medium or machine readable form the Product or any data/information provided to the Licensee through the Product to a person (except that nothing in this paragraph (b) is intended to prevent an Authorised Person undertaking Authorised Use at the Authorised Site); (c) use the Product to provide or operate Application Service Provider (ASP), service bureau, marketing, training, outsourcing, or consulting services, or any other commercial service related to the Product; (d) use the Product to develop a product which is competitive with the Product; (e) vary or amend the Authorised Use without CustomWare’s prior written approval; (f) publish, promote, broadcast, circulate or refer publicly to the CustomWare name or logo, without the prior written consent of CustomWare; (g) commit any act or omission the likely result of which is that CustomWare’s reputation will be brought into disrepute or which act or omission could reasonably be expected to have or does have a material and adverse effect on CustomWare’s interests; or (h) export the Product outside the country in which the Authorised Site is located. In addition, the Licensee acknowledges that the Product includes license protection mechanisms that are designed to manage and protect the intellectual property rights of CustomWare. Licensee must not modify or alter those features or otherwise attempt to defeat or circumvent the Product use rules that the license protection mechanisms are designed to enforce.

 

11. Term

This Agreement commences from the date on which CustomWare provides notice to the Licensee of the license keys for the Product and will continue in full force and effect for a period of 12 months (“Term”), unless earlier terminated in accordance with clause 12. Subject to the Licensee’s material compliance with the terms and conditions of this Agreement and the Licensee’s payment of the then applicable additional Licence Fee, the Licensee may extend the Term for a further period of 12 months by providing one month’s written notice to CustomWare. After such further 12 month period, CustomWare may (but is not obliged to) allow the Licensee to extend the Term for a further period or further periods on terms to be agreed by the parties, including, without limitation, payment by the Licensee of additional Licence Fees.

 

12. Termination

This Agreement may be terminated by either party if the other party commits a material breach, which includes, but is not limited to, a breach of any one of clauses 2, 7, 8, 9, 10 or 13.

 

13. Intellectual Property

All right, title and interest, including intellectual property rights, in relation to the Product (including any trade marks contained in or on the Product) are the property of CustomWare and CustomWare is entitled to take whatever action it may decide in order to protect its rights, title and interest, including intellectual property rights, in relation to the Product. No title, ownership, copyright or intellectual property rights in the Product are transferred by this Agreement to Licensee. The Licensee must not remove or alter any trade mark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in or on theProduct. All rights not specifically granted in this Agreement, are reserved by CustomWare.

 

14. Publicity Rights

The Licensee grants CustomWare the right to identify the Licensee as a customer on CustomWare’s website or other promotional material in relation to the Product. Within thirty (30) days of the Licensee’s written request, CustomWare will remove the Licensee’s name from its website customer list and will make no further reference to the Licensee in any future material promoting Product without the Licensee’s prior consent.

 

15. No assignment

This Agreement may not be assigned by the Licensee without the prior written consent of CustomWare.

 

16. Tax

Payments made by the Licensee under this Agreement exclude any taxes or duties payable in respect of the goods or services supplied in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by CustomWare, the Licensee must pay to CustomWare the amount of such taxes or duties in addition to the Licence Fee under this Agreement.

 

17. Notices

A notice given by a party under or in relation to this Agreement will be deemed as having been given: (a) if sent by e-mail, at the time at which it is sent, unless an electronic message is delivered in response indicating that delivery of the e-mail has failed or has been delayed; (b) if sent by facsimile, upon production of a correct and complete transmission report by the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety to the facsimile number of the recipient; (c) if sent by hand, when its delivery is confirmed by a signature on behalf of the recipient; and (d) if sent by post, on the third business day (or seventh business day if sent overseas) after posting.

 

18. Entire agreement

This Agreement constitutes the entire agreement between the parties in relation to its subject matter. No understanding, arrangement or provision not expressly set out in this Agreement will bind the parties. All correspondence, negotiations and other communications between the parties in relation to the subject matter of this Agreement which precede this Agreement are superseded by and merged in it.

 

19. Variation

This Agreement may not be varied except in writing signed by a duly authorised representative of each party.

 

20. Waiver

The failure by CustomWare at any time to enforce any of its powers, remedies or rights under this Agreement will not constitute a waiver of such powers, remedies or rights or affect CustomWare’s rights to enforce those powers, remedies or rights at any time.

 

21. Severability

If any provision of this Agreement is prohibited, invalid or unenforceable in any jurisdiction, that provision will, as to that jurisdiction be ineffective to the extent of the prohibition, invalidity or unenforceability without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of that provision in any other jurisdiction.

 

22. Governing Law

This Agreement is governed by the laws of New South Wales (NSW), Australia and the parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of NSW, Australia.

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For orders before April 2013 this EULA applies