Metacoda Software End User Licence Agreement (EULA)

Read this Agreement carefully

1. WARNING

This document contains the terms and conditions on which the Licensor grants the End User the right to Licence the Software and use the Support Services. You must read the document from start to finish. Only if you agree with all its terms and conditions should you continue to access the Software.

When you Accept this Agreement an agreement is made between:

the Licensor, Metacoda Pty Ltd; and
the person who Accepts this Agreement or if that person is an employee acting in the course of his/her employment, the Agreement is made by, and binds, the employer of that person (the employer will be deemed to be the entity that is named as the "customer" in the Contract Details. The person who Accepts this Agreement and is acting in the course of his/her employment or as agent warrants to Us that he/she has authority to act on behalf of his/her employer to enter into the Agreement.

2. DEFINITIONS AND INTERPRETATION

2.1 Definitions

In this Agreement, unless the context or subject matter requires otherwise:

"Agreement" means this End User Licence Agreement (including the Contract Details, recitals, schedules, appendices and exhibits to it), as it may later be amended or supplemented by the Parties in writing;

"Agreement Date" means the date you chose to "Accept" and accept the terms and conditions of this Agreement;

"Australian Consumer Law" means the Competition and Consumer Act 2010 (Cth);

"Chargeable Commercial Use Software" means Software for which the Purpose of use is commercial use as set out in clause 3.2(c)(iii), and for which a Licence Fee is payable.

"Claim" means, in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether ascertained or unascertained, or immediate, future or contingent;

"Commencement Date" means the date the Licence File is made available to the End User in respect of a Licence for Chargeable Commercial Use Software;

"Confidential Information" means the Technology and all technical and other information and know-how, including all information and know-how in an eye or machine readable form or other format, disclosed or given to a Party from any source in respect of or incidental to:

the Intellectual Property Rights;
the structure of a Party, its business plans, projections financials, estimates, market plans and assessments, business dealings or operations of a Party, and any other information disclosed or given to one Party by the other which is declared by a Party to be Confidential Information; and
any other information disclosed or given to a Party which is declared by the disclosing Party to be Confidential Information,

other than:

that information that is already in the public domain at the time of disclosure or becomes available to the public through no breach of this Agreement by the receiving Party;
was lawfully in the receiving Party's possession before receipt from the disclosing Party, without obligation of confidentiality;
is received free from obligation of confidentiality from a third Party lawfully permitted to disclose such information to the receiving Party; or
is independently developed by the receiving Party, as evidenced by its business records;

"Contract Details" means the details that are specific to the particular transaction in respect of the Software and Support Services, that are set out on a quotation or such other document (including an email) that is issued by the Licensor, (including a renewal notice), or on the Licensor's website, that sets out the name of the Service, the Purpose of the Licence granted, the SAS Environments that the Software can be used with, the Designated Computer Equipment and any other Licence restrictions, any Licence Fee, the number of Support issues that are included in any Licence Fee, currency of payment, the Term and any other details that relate to the particular transaction (and if the Licence is being granted to a Partner, the identity of the entity for whose benefit the Software is to be used);

"Designated Computer Equipment" means any computer equipment owned by or leased to the End User and remaining under the control of the End User's organization's employees or subcontractors, but subject to the limitation referred to in clause 3.2(h);

"End User" means you (or your employer if you are acting on behalf of your employer when you "Accepted" this Agreement), the Party entering into this Agreement with the Licensor;

"Evaluation" means Software for which the Purpose of use is evaluation use as set out in clause 3.2(c)(ii). Evaluation Software does not come with Support Services;

"Expiration Date" means the date the Licence File will expire;

"Free Software" means Software that may be used for commercial use as set out in clause 3(c)(i), but for which no Licence Fee is payable. Free Software does not come with Support Services;

"Future Rights" means jointly and severally all of those Rights (statutory and otherwise) comprised in the Intellectual Property Rights which may arise, be created, be granted or acquired in any way whatsoever in relation to the Software and the Technology;

"GST" means the Goods and Services Tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth);

"Improvements" means in any jurisdiction, any improvement, modification, enhancement, derivative, application or use of the Software, conceived, created or arising during or subsequent to the End User's access to the Intellectual Property Rights including all Future Rights;

"Intellectual Property Rights" means

jointly and severally any Rights as they relate to the Confidential Information, the Technology, the copyright, trademarks, the design rights, the patent rights, the eligible layout rights, business and domain names, inventions, the Improvements, and the Future Rights;
all other Rights resulting from intellectual activity in the industrial, scientific, literary or artistic field; and
any application or Right to apply for registration of any of the Rights referred to in the subclause (a);

"Licence" means the licence of the Software granted pursuant to this Agreement, and includes access to the User Documentation for the same Purpose and Term;

"Licence Fee" means the monetary amount paid to the Licensor for Chargeable Commercial Use Software and Support Services as specified in the Contract Details;

"Licence File" means the encrypted code supplied by the Licensor to enable the End User to activate a Licence for the Software;

"Licensor" means Metacoda Pty Ltd ABN 80 127 389 262;

"Malicious Use" includes but is not limited to any act intentional or otherwise whether authorised or unauthorised, direct or indirect which has the effect of causing unnecessary and unwanted, malicious interference with the business operations of the Licensor or which results in damage to the Software or any computer system, loss of functionality or undesirable or negative effect or result;

"Manual of Specifications" means any documents which forms part of the Software and contains technical information relating to the Software of a confidential and proprietary nature belonging to the Owner;

"Media" means the media on which the Software is recorded, printed or downloaded;

"Owner" means Metacoda Group Pty Ltd ACN 127 388 336;

"Partner" means an entity who has entered into an agreement with the Licensor to refer potential End Users of the Licensor's Software in exchange for the payment of a referral fee;

"Party" means any Party to this Agreement, being the End User and the Licensor;

"Personal Information" means any information or data that is subject to any Privacy Law;

"Privacy Law" means any law, regulation or common law which governs the use of information that is about, identifies or can be used to identify, any identifiable individual, or which is generally understood in the relevant jurisdiction to protect an individual's privacy and/or to govern the collection, use, disclosure or transmission of personal information or data;

"Purpose" means the right to use the Software for one of the following purpose, as:

Free Software;
Evaluation Software;
Chargeable Commercial Use Software,

as set out in the Contract Details;

"Right" includes a legal, equitable, contractual, statutory or other right, power, authority, benefit, privilege, remedy, discretion or cause of action;

"SAS Environment" means the SAS software environment set out in the Contract Details;

"Software" means any computer software in object code form, data, electronic media code, scripts or information provided to the End User by the Licensor;

"Source Code" means the source code from which the Software object code is derived;

"Support Charge" means the monetary amount payable to the Licensor for ad hoc additional Support Services in respect of a Licence for Chargeable Commercial Use Software;

"Support Services" means the services to be provided to the End User in respect of a Licence for Chargeable Commercial Use Software, as specified in the Contract Details;

"Tax" includes any sales taxes, duties, withholding taxes, levies, tariffs, imposts or other charges levied by any federal, state or local government which arise out of or in connection with the Software, Support Services or this Agreement, and any interest, penalties or liabilities incurred on such amounts, but excludes taxes based on the net income of the Licensor;

"Technology" means all that technical information relating to the Software including without limitation the Source Code, methodology, techniques, drawings, outlines, notes, algorithms, detailed designs, software, flow charts, results, (partial or intermediate versions of the Software and/or prototypes of the Software) data, source code, formulae and other proprietary information and know how in the Owner's possession or control which relates to the Software.

"Term" means for a Licence, unless stated otherwise in the Contract Details, a period calculated in accordance with clause 4.1;

"User Documentation" means the operating manuals, user instructions, Manual of Specification, technical literature and all other materials in an eye readable form prepared by the Licensor for use in the installation, integration and application of the Software, including where the context so admits, all updates and new releases of the documentation.

2.2 Interpretation

In the interpretation of this Agreement, unless the context or subject matter otherwise require:

singular includes plural and vice versa;
any gender includes every gender;
a reference to a person includes corporations, trusts, associations, partnerships and other legal entities, and where necessary, include successor bodies;
references to writing include printing, typing, facsimile and other means of representing or reproducing words, figures, drawings or symbols in a visible and tangible form;
references to months mean calendar months;
references to statutes include statutes amending, consolidating or replacing the statutes referred to and all regulations, orders-in-council, rules, by-laws and ordinances made under those statutes;
references to sections of statutes or terms defined in statutes refer to corresponding sections or defined terms in amended, consolidated or replacement statutes;
headings are used for convenience only and are to be disregarded in the interpretation of this Agreement;
where any word or phrase is given a defined meaning, another grammatical form of that word or phrase has a corresponding meaning;
each paragraph or sub-paragraph in a list is to be read independently from the others in the list;
a reference to an agreement or document is to that agreement or document as amended, novated, supplemented or replaced from time to time; and
a reference to a Party includes that party's executors, administrators, substitutes, successors and permitted assigns.

3. LICENCE

3.1 Grant of Licence

The Licensor hereby grants to the End User, a licence to use the Software subject to the restrictions contained in this Agreement. Each Licence granted under this Agreement is a separate and independent obligation that is subject to the terms and conditions in this Agreement.

3.2 Conditions of Licence

The Licensor and the End User acknowledge that the grant of the Licence in accordance with clause 3.1 is subject to the following conditions:

the Licence will be non-exclusive and non-transferrable;
the right to use the Software on the Designated Computer Equipment in connection with any SAS Environments and any other restrictions set out in the Contract Details;
the End User may use the Software only:
1. where the Software is licenced as Free Software; for the Purpose of processing its own business' data, without charge;
2. where the Software is licenced as Evaluation Software: for the Purpose of the evaluation of the Software, which expressly excludes any use for a commercial or production purpose, prototyping or development, or in a live or production environment, without charge;
3. where the Software is licenced as Chargeable Commercial Use Software: for the Purpose of processing its own business' data, subject to the payment of the Licence Fee;
subject to anything to the contrary contained in the Agreement, the End User does not have the right to appoint any sub End User, agent, distributor or subcontractor in respect of the rights granted to it in accordance with this Agreement;
if the End User was introduced to the Licensor by a Partner of the Licensor that:
1. the Partner disclosed to the End User the existence of the relationship between the Partner and the Licensor and that the End User agreed to be referred to the Licensor;
2. the Licensor may ask the End User to verify that it was referred by a particular Partner; and
3. the End User has no reason to object to the payment of a referral fee to the Partner.
the End User will not be authorised to appoint any person to manufacture the Software without the express written consent of the Licensor; and
the End User will have no right to use the Software or the corresponding Intellectual Property Rights for any other purpose other than is expressly permitted by this Agreement; and
the Software can only be used if the End User and the Designated Computer Equipment have a current SAS software licence.

3.3 Partner Licence

Where the Contract Details identify the End User as a Partner, the Partner must only use the Software for the benefit of the entity identified in the Contract Details as the end user organisation of the Software, and may not use it to process its own business' data. At the end of the relevant Term the Partner must ensure that the Software is deleted from the Designated Computer Equipment of the end user organisation and the Partner. For clarity, the Partner must pay the Licence Fees to the Licensor.

3.4 Competing Activities

During the Term, neither the End User nor any corporation which controls the End User or is controlled by the End User or its officers or employees will directly or indirectly in any capacity whatsoever engage in any of the following activities without the prior written consent of the Licensor:
1. selling whether for its own account, or for the account of others, any product which contains Confidential Information or which could otherwise be considered a product competing with the Software (a "Competing Product");
2. acting as a commission broker or commercial agent in relation to or representing itself as being involved in connection with the sale of any Competing Product;
3. the promotion or advertisement of any Competing Product;
4. engaging directly or indirectly in the business of developing, selling or maintaining any Competing Product;
5. financing or guaranteeing to any other Party engaged in any of the above mentioned activities concerning any Competing Product.
The End User undertakes with the Licensor that it will not for a period of six (6) months following termination of this Agreement (howsoever caused) solicit the custom of users of the Software for the licensing or sale of a Competing Product.

3.5 Authorisation

If so required by the Licensor, in its sole discretion, the End User must complete any authentication or authorisation process to ensure that the End User has appropriately accessed the Software.

3.6 Restrictions on Rights

The End User will not use or duplicate the Software for any purpose other than as specified in this Agreement, to make the Software available to unauthorised third Parties or as otherwise permitted by law.
The End User will take all reasonable steps, which may include having its employees or agents sign non-disclosure agreements, to ensure that the Software is not used, duplicated disclosed or distributed by its employees in contravention of the provisions of this Agreement.

4. LICENCE TERM

4.1 Commencement

Unless stated otherwise on the Contract Details, the Software is licenced for its Term, being

for Software that is licenced as Free Software: from the Agreement Date until this Agreement is terminated in accordance with this Agreement;
for Software that is licenced as Evaluation Software: 30 days from the Agreement Date unless terminated sooner in accordance with this Agreement;
for Software that is licenced as Chargeable Commercial Use Software; 12 months from the Commencement Date unless terminated sooner in accordance with this Agreement. The Term for a Chargeable Commercial Use Licence can be renewed in accordance with this Agreement.

4.2 End of an Evaluation Licence

At the end of the Term of Software that is licenced as Evaluation Software, the Licensor may offer the End User the ability to enter into a Licence for Chargeable Commercial Use Software by sending the End User a quotation setting out the Contracts Details for such Licence. The End User may accept that offer by accepting the terms and conditions provided as part of the sign up process when first using the Chargeable Commercial Use Software.

4.3 Early Termination Payment for Chargeable Commercial Use Software

In the event of the termination of the any Licence for Chargeable Commercial Use Software for any reason other than the default of the Licensor, the Licence Fee previously paid (if any) shall remain the property of the Licensor and the End User shall make no Claim in respect of it and the End User shall further pay to the Licensor any Licence Fee accrued and due but unpaid as at the date of the termination or expiration of the Licence for the Chargeable Commercial Use Software.

4.4 Renewal Term for Chargeable Commercial Use Software

If the Licensor wishes to renew the Term of Software licenced as Chargeable Commercial Use Software, the Licensor will send the End User a renewal notice setting out the Contract Details associated with the renewal at least 60 days prior to the end of the Term.

Where there is a new version of the Chargeable Commercial Use Software available at the time of renewal, the renewal will only be offered for the version of Chargeable Commercial Use Software that is current at the renewal date, on terms and conditions and at the fees that are available with that new version.

Where there is no new version of the Chargeable Commercial Use Software available at the time of renewal, the renewal will be offered on these terms and conditions at the Licence Fees and for the period set out in the Contract Details in the renewal notice, (or in absence of a renewal notice at the same Licence Fee and the same period as in the original Contract Details).

The End User may accept the renewal offer by accepting the terms and conditions provided as part of the sign up process when using the Chargeable Commercial Use Software following the issue of the renewal notice (or in absence of a renewal notice, at any time after then end of the Term of the current Licence).

5. TERMINATION

Either party may terminate the Licence for Software licenced as Free Software at any time during the Term for the Free Software for any reason, by giving the other party written notice.
The End User may terminate the Licence for Software licenced as Evaluation Software at any time during the Term of the Evaluation for any reason, by giving the Licensor written notice prior to the end of the Term of the Evaluation Software.
The End User may terminate the Licence for Chargeable Commercial Use Software, such termination to be effective at the end of the Term of the Chargeable Commercial Use Software, by giving the Licensor written notice at least 30 days prior to the end of the end of the Term of the Chargeable Commercial Use Software.

5.1 Termination for cause

The Licensor may terminate the immediately the Licence for Chargeable Commercial Use Software, by giving written notice to the End User:
1. if the End User fails to comply with any material term of this Agreement in respect of the Licence for Chargeable Commercial Use Software, which is incapable of being remedied after being notified of such breach;
2. if the End User fails to comply with any material term of this Agreement in respect of the Licence for Chargeable Commercial Use Software which is capable of being remedied and has not remedied the breach within 10 days of receipt of written notice of such breach; or
3. if the End User fails to pay the Licence Fee by the due date, the payment of which is an essential term of this Agreement in respect of the Licence for Chargeable Commercial Use Software.
The End User may terminate the immediately the Licence for Chargeable Commercial Use Software, by giving written notice to the Licensor:
1. if the Licensor fails to comply with any material term of this Agreement in respect of the Licence for Chargeable Commercial Use Software which is incapable of being remedied after being notified of such breach; or
2. if the Licensor fails to comply with any material term of this Agreement in respect of the Licence for Chargeable Commercial Use Software which is capable of being remedied and has not remedied the breach within 10 days of receipt of written notice of such breach.
This Agreement may also be terminated in accordance with the Australian Consumer Law, where applicable.
The Licence for particular Software will also terminate at the end of the relevant Term for that Licence, unless the Term is renewed in accordance with this Agreement.
On termination of any Licence, the Licensor may lock the End User out from access to the relevant Software.
The End User agrees on termination of a Licence to promptly destroy the relevant Software and User Documentation, together with all copies of the Software or User Documentation in any form.

5.2 Termination by actions Licensor

If the Licensor loses its right to Licence the Intellectual Property in the Software to the End User (for whatever reason) then the End User agrees that the rights and obligations in relation to that Software contained in this Agreement may be novated to the Owner. In this event, the End User agrees that all information including personal information about the End User necessary for the Owner to stand in the shoes of the Licensor will be provided to the Owner. The End User must sign a novation agreement in a form reasonably required by the Licensor to effect this clause.

6. THE SOFTWARE

6.1 Delivery

The Licensor will deliver the Software (which includes making the Software available for downloading) to the End User on or before the Agreement Date.

6.2 Installation

The End User must install the Software, at its own cost.
Upon installation of the Software, the End User shall be responsible for ensuring that the Software is used in accordance with its Manual of Specifications.

6.3 Ownership

All title, ownership Rights and Intellectual Property Rights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music, text, and applets incorporated into the Software), the User Documentation and any copies of the Software are owned by the Owner.
The End User acknowledges such ownership and Intellectual Property Rights and will not take any action to breach, jeopardise, limit or interfere in any manner with the Owner's ownership of or Rights to the Software.

6.4 Copies

Subject to the following sub-clauses of this clause, and without seeking to exclude or limit the application of sections 47B(3), 47C, 47D, 47E or 47F of the Copyright Act 1968 (Cth) the End User shall not copy the Software, in whole or in part.
The End User may make such number of copies of the Software as is necessary to serve its internal needs for system's back-up and security. All copies of the Software and the Media in which the copies are contained shall be and remain the property of the Licensor or its licensor.
The End User shall mark all copies of the Software and the Media in which the copies are contained with a notice of:
1. the ownership of the Software and the Media;
2. the confidentiality of the Software; and
3. such other information as the Licensor requires.
The End User shall maintain records of all copies of the Software made by it and the place at which those copies are situated. Such records shall be furnished to the Licensor upon reasonable notice.
The End User shall notify the Licensor immediately on becoming aware of any unauthorised use or copying of the whole or any part of the Software or of the User Documentation.
Immediately upon termination of this Agreement, the End User shall deliver up to the Licensor the Software (including all copies, authorised or otherwise), the Media and the User Documentation, whether in their original form or as modified by the End User.

6.5 Reverse Engineering

Except as expressly permitted by sections 47B(3), 47C, 47D, 47E or 47F of the Copyright Act 1968 (Cth), the End User must not reverse assemble or reverse compile the Software or any part of the Software.
End Users acknowledge that the Software and User Documentation is proprietary and the Confidential Information of the Licensor or its licensor.

6.6 Security

The End User is responsible for protecting the Software and the User Documentation at all times from unauthorised access, use or damage.

6.7 Risk

Risk of loss or damage to the Software and the User Documentation shall pass to the End User on delivery/download of the Software to the End User.

7. WARRANTIES

7.1 Warranties

For Software licenced as Chargeable Commercial Use Software, the Licensor warrants for the benefit of the End User that the Software will perform substantially in accordance with the Manual of Specifications for a period of 90 days from the Commencement Date.
If, within 90 days after the delivery of the Software licenced as Chargeable Commercial Use Software, the End User notifies the Licensor in writing of:
1. the fact that the Software is not performing substantially in accordance with its Manual of Specifications; and
2. the alleged defects or errors, with sufficient particularity to enable the Licensor to remedy the defects or errors,
3. the Licensor shall at its own expense, commence to examine the Software within three business days and, as soon as practicable thereafter, rectify the defect or replace the Software.
The warranty contained in clause 7.1(b):
1. is subject to the End User having fully complied with its obligations under this Agreement;
2. is not a warranty that the results obtained from the Software will be in accordance with the End User's expectations; and
3. does not operate where the substantial non-performance arises in any respect from the installation of the Software, the nature or operation of the equipment on which the Software is used or the use of any materials or Software not provided by the Licensor;
4. is not a warranty that imposes liability on the Licensor in respect of defects or failures due to:
  1. accident, neglect or misuse by the End User;
  2. failure of or defect in any operating software of the computer hardware system or the Designated Computer Equipment;
  3. failure or defect in environmental conditions which would cause the Software to fail or run incorrectly;
  4. the interface between the Software and other software not provided by the Licensor;
  5. unusual physical or electrical stress which damages the magnetic medium upon which the Software is stored;
  6. any modification or adjustment to the Software otherwise than pursuant to the provisions of this Agreement; and
  7. use of the Software outside the scope of this Agreement.

7.2 Exclusions

Subject to clause 7.3, any condition or warranty which would otherwise be implied in this Agreement is hereby excluded.

7.3 Warranty Against Defects

The benefits that we provide to consumers under our Warranty Against Defects are in addition to any other rights or remedies a consumer may have in respect of these goods or services under the Australian Consumer Law.

Where you are entitled to the benefits of the statutory guarantees under clauses 54 to 59 and/or 60 to 62 of the Australian Consumer Law, then Regulation 90 (issued under that Act) applies.

Accordingly, Metacoda Pty Ltd provides you with the following information as is required by Regulation 90:

The services that are provided to remedy any defect in the Software or Support Services are a "Warranty Against Defects" as defined in Regulation 90. These services are provided by Metacoda Pty Ltd (ABN 80 127 389 262 of Morris Towers, Level 8 149 Wickham Terrace, Spring Hill, QLD, 4000 AUSTRALIA, telephone number +61 7 3103 0964, email address info@metacoda.com.

Where your claim is in relation to the Licence for the Software

You must give us written notice to the address above (including by email) within 180 days of the first day of your licence agreement, setting out the details of the issue including wherever, possible a screen shot of the issue or any error message, together with details of the technical environment in which it is operating (including operating system type and number, and the version of the software that is installed) and at our request:

you must, at your cost, provide us with remote access to the technology environment on which the software is located in order for use to diagnose and remedy (including by installing any patch remotely) the software; and/or
you must, at your cost, send us a copy of the software with the defect. Wherever technically possible, you must take a copy of, and then remove, all data from the software prior to sending it to us.

We will then use our best efforts to diagnose the issue, and if the issue is found to be defect in the software we will use our best efforts to remedy the defect, or replace the software with the latest version of the software (with substantially similar or better features), and (if applicable) supply you with new media with the remedied/new version of the software on it, in a timely manner and at our cost. You must install the remedy or new version on your technical environment at your cost.

If we are unable to remedy the defect or provide a new version of the software, we will provide a refund of the fees paid for the Licence for the Software, and you must either delete the software from your technical environment or, if applicable, we will keep and/or destroy any software that you sent to us. In this case we may also terminate any connected support service for the software.

Where your claim is in relation to Support Services

You must give us written notice to the address above (including by email) within the support period setting out details of the issue.

We will then use our best efforts to re-perform the services or remedy the defect in the software in a timely manner, or if we are unable to re-perform the service or remedy the defect in the connected software we will provide you with a refund of the component of the fees that are attributed by us to the Support Services in the month which the defective service occurred (or if the Support was subject to a specific Support Charge, a refund of that Support Charge), or if the defect is a major defect, we may also terminate the support service and provide you with: (i) an additional refund of any fees that you have paid in advance for the period of the support service that has been terminated, and (ii) an additional refund of any fees that you have paid for the connected software licence. If we terminate the connected software licence you must, at your cost, immediately either: (i) delete all copies of the software from your systems and destroy all copies of the software and the documentation, or at our request, return to us all copies of the software and documentation.

The costs for this Warranty Against Defect service is included within the Licence Fees and Support Charges. No additional fees are payable by you for this service. You are responsible for any expenses you incur in using this service.

"Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:

to cancel your service contract with us; and
to a refund for the unused portion, or to compensation for its reduced value.

You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service"

7.4 Limitation of Liability for Statutory Guarantees under Australian Consumer Law

Where End User is entitled to a statutory guarantee under clauses 54 to 59 of the Australian Consumer Law then to the extent that the Licensor fails to comply with such guarantee, the Licensor's liability for a failure to comply with such statutory guarantee is limited to one or more of the following, at the Licensor's option:

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 of acquiring equivalent goods; or
the payment of the cost of having the goods repaired, unless it is not fair or reasonable for the Licensor to rely on this term of the Agreement.

Where End User is entitled to a statutory guarantee under clauses 60 to 62 of the Australian Consumer Law then to the extent that the Licensor fails to comply with such statutory guarantee, the Licensor's liability for a failure to comply with such statutory guarantee is limited to one of the following, at the Licensor's option:

supplying the services again; or
payment of the cost of having the services supplied again, unless it is not fair or reasonable for the Licensor to rely on this term of the Agreement.

8. PAYMENT

The fees and charges are due as follows:
1. for Software licenced as Chargeable Commercial Use Software and its related Support Services, the Licence Fee is due on the first day of the Term;
2. for Software licenced as Chargeable Commercial Use Software and its related Support Services that are being renewed, the Licence Fee is due on the first day of the Renewal Term;
3. for additional issues that are provided as ad hoc Support Services, the Support Charge is due at the end of the month in which the ad hoc Support Services was performed.
The Licensor will send the End User an invoice for the fees, charges and related Taxes on or before the due date set out in sub-clause 8a. above.
The End User must pay the Licensor the invoice for the fees, charges and related Taxes, within 30 days of the later of receipt of the invoice of the due date for payment as set out in sub-clause 8a. above.
To the extent permitted by law, the End User must pay the Licensor the fees, charges and Taxes in the currency set out in the Contract Details, without set off or deduction for any reason.
In addition to the fees and charges payable in accordance with the Agreement, the End User must pay to the Licensor an additional amount equal to the GST that is payable on the supply (GST Amount), such GST amount must be paid at the same time as the relevant fees.
If a party has to reimburse or indemnify another party for a loss, cost or expense, the amount to be reimbursed or indemnified is reduced by any input tax credit the other party is entitled to for the loss, cost or expense, and then increased in accordance with sub-clause 8e.
If the GST payable by the End User on any supply arising out of or in connection with the Agreement varies from the GST Amount paid or payable by the End User under sub-clause 8e such that the further amount of GST is payable in relation to the supply or a refund or credit of GST is obtained in relation to the supply, then the End User will provide a corresponding refund or credit to, or will be entitled to receive the amount of that variation from the End User.
Any payment, credit or refund under sub-clause 8g is deemed to be a payment, credit or refund of the GST Amount payable under sub-clause 8e.
The End User must pay a late charge for any failure to make any payment by the date required under the Agreement, calculated daily using a rate that is 4% over the Reserve Bank of Australia's Cash Rate, from the date that the payment first becomes overdue, to the date that the payment is received by the Licensor, both dates inclusive.
All payments made by the End User under this Agreement must be made free and clear and without deduction for any and all present and future Taxes. Payments due to the Licensor under the Agreement must be increased so that amounts received by the Licensor, after provisions for Taxes and all Taxes on such increase, will be equal to the dollar amounts required under the Agreement, as if no Taxes were due on such payments.

9. NO LIABILITY FOR DAMAGE

9.1 Limitation of Liability

For any Claim that is not provided for in clause 7.4, then to the extent permitted by law, and subject to clause 9.2, the Licensor's liability to the End User for any Claim whether it be in contract, tort (including negligence), breach of statutory duty or otherwise, arising out of or in connection with Agreement shall be limited to the greater of:

the fees under this Agreement; or:
AUD $10,000.

9.2 Exclusion or Certain Types of Loss

The Licensor is not liable for any loss, damage or expense which is:

lost profits, lost revenue, failure to realise expected savings, lost or damaged data or business interruption or loss of goodwill; or
indirect, consequential, special, punitive or exemplary, even if the Licensor has been advised of, know of, or should have known of the possibility of such loss, damage or expense.

9.3 Non application of Vienna Convention

The Parties agree that pursuant to Article 6 of the state Sale of Goods (Vienna Convention) Acts, the terms of the Vienna Convention relating to the international sale of goods do not apply to this Agreement.

10. SUPPORT SERVICES

The Licensor provides Support Services for Licences for Chargeable Commercial Use Software only, and not for Evaluation Licences or for Free Software.

During the Term of a License for Chargeable Commercial Use Software the Licensor will provide the following Support Services, the cost of which is included in the Licence Fee:

help desk support during business hours in Brisbane for up to the number of issues set out in the Contract Details (additional ad hoc Support Services for additional issues can be resolved by the payment of a Support Charge per issue, as may be agreed at the time);
maintenance patches, as may be issued from time to time by the Licensor.

During the Term of a License for Chargeable Commercial Use Software, the Licensor may also offer the End User any new versions, as may be issued from time to time by the Licensor. Any such new version will be offered using the terms and conditions that are available for that new version at that time. If the End User elects not to use the new version, the End User may continue to use the current version under the terms and conditions in this Agreement until the end of the Term.

The End User is responsible for downloading and installing any maintenance patch or new version. Support Service are not provided for any defect caused by any of the items listed in clause 7.1(c)(iv).

11. CONFIDENTIALITY

Each Party agrees during the Term and after its termination or expiration for whatever reason:

to treat all Confidential Information including the User Documentation which comes to its knowledge or into its possession in connection with this Agreement as strictly private and confidential; and
not to divulge that information to any third party, other than to the Party's consultants or advisers who have a need to know; and
not to use such Confidential Information in any way for profit or otherwise except as expressly provided for by this Agreement.

12. PRIVACY

Obligations under Australian Privacy Law

Each Party must, when it collects, receives, uses, discloses, transfers or otherwise handles Personal Information in the course of performing its obligations under this Agreement:
1. comply with the Privacy Act as though it were a bound by the Privacy Act and any subordinate legislative instruments or regulations;
2. comply with any the other Party's policies in relation to any Personal Information or any reasonable directions of the other Party of which it has been given written notice.
Each Party must:
1. collect, use and disclose the Personal Information only as authorised or for the purposes of:
  1. the performance of the rights and obligations under this Agreement;
  2. the administrative tasks associated with the performance of the Agreement, including invoicing, payment, contract management, risk management, insurance, renewals, delivery, maintenance and support;
  3. where Licensor is the recipient of the Personal Information, marketing and promoting Licensor's other goods and services to End User;
2. not disclose the Personal Information except:
  1. to its personnel to the minimum extent necessary for the purposes of performing its obligations under this Agreement;
  2. subject to clause 12e.iii as required by law; or
  3. with the prior written consent of the other Party; and
  4. ensure that any person to whom Personal Information is disclosed under this sub-paragraph (ii), uses, discloses, transfers, retains and otherwise manages such Personal Information consistently with that Party's obligations under this Agreement.
Neither Party may transfer or disclose any Personal Information to any recipient located outside of Australia, or any other country in which the Personal Information was first collected (the "Relevant Countries"), or allow or permit any person located outside the Relevant Countries to access or receive any Personal Information, without the prior written consent of the other Party.
Except as otherwise required by law or as otherwise agreed between the Parties, each Party must return to the other Party all materials in the first Party's possession, custody or control containing Personal Information handled in connection with this Agreement in the following circumstances:
1. when the Personal Information is no longer required by the other Party for the purposes of this Agreement;
2. upon termination or expiry of this Agreement;
3. upon demand by the first Party; or
4. if required by law.
Where there as an eligible data breach (as defined in the Privacy Act 1988 (Cth) involving the Personal Information (as defined in the Privacy Act 1988 (Cth)) that has been provided by the other Party, then the Party that has suffered the eligible data breach must:
1. immediately, and in any event within 24 hours of the discovery of the eligible data breach, notify the other Party of the eligible data breach, to the other Party with all information that is required to be provided to the Office of the Australian Information Commission and/or the affected individual, as required under the Privacy Act 1988 (Cth);
2. co-operate with the other Party in any investigation or audit (including by providing access to the breaching Party's premises, personnel, processes and systems) in respect of the eligible data breach;
3. not disclose to any third party (including the Information Commissioner as defined in the Australian Information Commissioner Act 2010 (Cth)) the existence or circumstances surrounding any eligible data breach, without the non-breaching Party's prior written approval, unless the non-breaching Party does not make any notification that it is lawfully required to do and the breaching Party is required by law to make the notification.

Obligations under GDPR

Where a Party is required to comply with GDPR by virtue of Article 3 of GDPR, that Party warrants to the other Party that it will comply with GDPR.
GDPR means the General Data Protection Regulation 2016/679. In clauses 12f to v word or phrases that are defined in GDPR shall be interpreted using the meaning given to them in GDPR.
Where a Party is subject to GDPR and is a data controller under GDPR in respect of the personal data that is being transferred to the other Party for processing in connection with this Agreement (Data Controller), then the other Party (Data Processor) must comply with clauses 12f to v.
Where the Data Processor processes personal data on behalf of the Data Controller then:
1. the Data Controller must solely determine the nature, purpose and the manner in which the personal data shall be processed, and the nature and purposes are limited to:
  1. the performance of the rights and obligations under this Agreement;
  2. the administrative tasks associated with the performance of the Agreement, including invoicing, payment, contract management, risk management, insurance, renewals, delivery, maintenance and support;
  3. where Licensor is the Data Controller, marketing and promoting Licensor's other goods and services to the Data Processor;
  4. any other purpose that the Data Controller provides a documented instruction regarding; or
  5. processing that is required by the laws of the European Union or any EU member state to which the Data Controller is subject, in which case the Data Processor shall, to the extent permitted by such law, inform the Data Controller of that legal requirement before the relevant processing of that personal data.
2. the Data Controller shall ensure that it has all necessary or appropriate consents and notices in place to enable lawful transfer of personal data to the Data Processor for the duration and purposes of the Agreement;
3. the Data Controller instructs the Data Processor (and authorises its subprocessors, if any) to process personal data and transfer personal data to any country or territory (or international organisation) as reasonably necessary for the performance of its obligations and rights under this Agreement, provided always that any transfer of personal data to which the GDPR applies outside of the EU is:
  1. to country or territory which the European Commission has determined there exists an adequate level of protection in accordance with Article 45 of GDPR; or
  2. subject to appropriate safeguards and on condition that enforceable data subject rights and effective legal remedies for data subjects are available in accordance with Articles 46 or 49 of GDPR; and
  3. is notified to the Data Controller in advance;
4. the Data Processor must assist the Data Controller by adopting and maintaining appropriate technical and organisational measures, insofar as this is possible, specifically for the fulfilment of the Data Controller's obligation to respond to requests for exercising the data subject's rights laid down in Chapter III of GDPR;
5. the type of personal data to be processed under this Agreement is:
  1. an individual's contact details, including name, email, Skype, social media identifiers, and other personal identifiers;
  2. personal data that is provided by an individual in connection with permitted purposes of processing;
6. the categories of data subjects to whom the personal data relates are:
  1. employees;
  2. agents, contractors and suppliers;
7. personal data may only be processed by the Data Processor and its subprocessors for the period of this Agreement;
The Data Controller must take reasonable steps to ensure the reliability of any employee, agent or contractor who may have access to the personal data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant personal data, as strictly necessary for the permitted purpose of the processing under this Agreement, and to comply with laws in the context of that individual's duties to the Data Controller, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
The Data Controller must, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, in relation to the personal data implement appropriate technical and organisational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32 of the GDPR. In assessing the appropriate level of security, the Data Controller must take account in particular of the risks that are presented by processing, in particular from a personal data breach.
The Data Processor must keep all written records as are required by GDPR, including those set out in Article 30(2), and must make those records available to the Data Controller and any supervisory authority upon request.

Where the End User is the Data Controller, the Data Controller permits the Data Processor to use the following subprocessor for the processing personal data to the extent set out in the table below:

Subprocessor Name	Subprocessor Web/GDPR Link	Description of Personal Data Processing	Location of the Subprocessor's Processing
Amazon Web Services	https://aws.amazon.com/compliance/gdpr-center/	Cloud infrastructure service provider	USA, Europe, Australia
Microsoft	https://www.microsoft.com/gdpr	Cloud infrastructure, email, and calendar service provider	USA, Australia
MailChimp	https://mailchimp.com/gdpr/	Cloud-based email marketing service provider	USA
Xero	https://www.xero.com/au/campaigns/xero-and-gdpr/	Cloud-based accounting service provider	USA
Stripe	https://stripe.com/privacy-center/legal	Cloud-based payment services	USA, Ireland, Australia
PayPal	https://www.paypal.com/us/webapps/mpp/gdpr-readiness-requirements	Cloud-based payment services	USA
LogMeIn (GoToMeeting)	https://www.logmeininc.com/gdpr/gdpr-compliance	Cloud-based web meeting service provider	USA
Zoom	https://zoom.us/gdpr	Cloud-based web meeting service provider	USA
Twilio	https://www.twilio.com/gdpr	Cloud-based telephony services	USA
Automattic (Akismet & Gravatar)	https://automattic.com/automattic-and-the-general-data-protection-regulation-gdpr/	Cloud-based comment spam filtering and profile images/avatars	USA, Ireland
Facebook & Instagram	https://www.facebook.com/business/gdpr	Social media	USA
LinkedIn	https://privacy.linkedin.com/gdpr	Social media	USA
Twitter	https://gdpr.twitter.com/	Social media	USA
Survey Monkey	https://www.surveymonkey.com/mp/gdpr/	Cloud-based marketing survey provider	USA

If a Data Processor appoints any other subprocessors, wishes to add or delete Subprocessors or to change the use of any Subprocessor, the Data Processor must comply with Article 28(3)(d) of the GDPR and must first:
1. inform the Data Controller of any intended addition, deletion or change concerning to subprocessors;
2. make any changes (including refusing to permit the addition, deletion or change) that the Data Controller requests in writing within 14 days of receipt of written notice, but if no changes are requested by the Data Controller, the Data Processor may make the addition, deletion or change notified to the Data Controller;
3. enter into a written contract incorporating terms which are substantially similar to those set out in clauses f to u and any other terms required by the Data Controller;
4. provide name and contact details of the subprocessor's data protection officer, representative or other authorised contact.
The Data Processor must ensure that any subprocessor complies with all relevant laws, including the GDPR.
The Data Processor must assist the Data Controller in ensuring compliance with the obligations pursuant to Articles 32 to 36 of GDPR taking into account the nature of processing and the information available to the Data Processor.
At the election of the Data Controller, the Data Processor must delete or return to the Data Controller all the personal data relating to processing, and delete existing copies unless an applicable Union or member state law requires storage of the personal data, on demand and no later than the last day of the period of this Agreement.
The Data Processor must make available to the Data Controller all information necessary to demonstrate compliance with the obligations set out in clauses 12f to v and allow for and contribute to reasonable audits upon reasonable notice during working hours on normal business days, including inspections, conducted by the Data Controller or another auditor mandated by the Data Controller.
The Data Processor must immediately inform the Data Controller if, in its opinion, any instruction for the Data Controller infringes GDPR or other privacy legislation.
Where the Data Processor or its subprocessors suffer a data breach involving the personal data that has been provided by Data Controller, then the Data Processor must immediately, and in any event within 24 hours of the discovery of the data breach, notify the Data Controller of the data breach, together with all information that is required to be provided to the Supervisory Authority and/or data subjects, as required under GDPR.
Where the Data Controller is liable for any loss, damage, expense or costs or any administrative fine as a result of the processing by the Data Processor or its subprocessors in breach of GDPR then the Data Processor must indemnify and hold harmless the data Controller for any loss, damage, expense or cost that the Data Controller is liable as a result, except to the extent that the Data Processor proves that the loss, damage, expense or cost was caused by an event for which the Data Processor was not in any way responsible.
Notwithstanding clause 13.9:
1. the provisions of clauses 12f to v and any clause in this Agreement that is required for the proper interpretation of those clauses, is subject to the laws of England and Wales and the Parties agree to submit to the exclusive jurisdiction of the courts in London, England in respect of any matter that arises out of clauses 12f to v and any clause in this Agreement that is required for the proper interpretation of those clauses; or
2. if England and Wales ceases to be an EU Member State, the provisions of clauses 12f to v and any clause in this Agreement that is required for the proper interpretation of those clauses, is subject to the laws of Ireland, and the Parties agree to submit to the exclusive jurisdiction of the courts in Dublin, Ireland in respect of any matter that arises out of clauses 12f to v and any clause in this Agreement that is required for the proper interpretation of those clauses.

13. MISCELLANEOUS

13.1 Assignment

Except as otherwise provided in this clause, neither Party may assign this Agreement without the prior written consent of the other Party accepting connection with the sale of all or substantially all of its business assets relating to this Agreement. The sale or change of control of a Party shall not constitute a prohibited assignment hereunder. The Licensor may assign, transfer or delegate any portion of this Agreement to any parent, subsidiary or related entity.

Any assignment in violation of the foregoing sentences will be null and void and will give the other Party the Right to terminate this Agreement. Subject to the foregoing this Agreement will inure to the benefit of and be binding on the respective successors and permitted assigns of the Parties.

13.2 Waiver

Failure by either Party to enforce any clause of this Agreement will not be deemed a waiver of future enforcement of that or any other clause.

13.3 Equitable Relief

The End User acknowledges and agrees that the Licensor shall be entitled to make an application to seek equitable relief, including such injunction or injunctions as may be required to prevent any breach, infringement or further breach or infringement of any of the Owner's Intellectual Property Rights and may specifically enforce such provisions or protect such rights by an action instituted in any court having jurisdiction.

13.4 Remedies Cumulative

Except as otherwise explicitly provided for in this Agreement, a party's respective rights and remedies are cumulative and are in addition to and not in substitution for any other Rights or remedies or otherwise at law or in equity and any such rights or remedies may be exercised by the Parties from time to time concurrently or independently and as often and in such order as the Parties may deem expedient in their exclusive and absolute discretion. This clause will survive the termination or expiration of this Agreement.

13.5 Notices

All Notices required or permitted under this Agreement shall be in writing and sent to the other Party's physical or mailing address, facsimile number or email address as detailed on the Licensor's website (in the case of notices to the Licensor) or as notified to the Licensor by the Licensee (in the case of notices to the Licensee), and will be deemed given:

when delivered personally;
when sent by confirmed facsimile;
one (1) day after having been sent by email, unless the sender receives a notification that the email has not been or could not be delivered;
five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or
one (1) day after deposit with a commercial overnight carrier specifying next day delivery, with written verification of receipt.

Any notice that is sent under the Australian Consumer Law may be sent in accordance with that law.

13.6 Force Majeure

Except for failure to make payments when due, non-performance of either Party is be excused to the extent that performance is rendered impossible by events of force majeure including strike, fire, flood, earthquake, governmental acts, orders or restrictions, or any other reason where failure to perform is beyond the reasonable control of the non performing Party provided that such Party shall make commercially reasonable efforts to circumvent such events of force majeure.

13.7 Execution by Counterparts

This Agreement and any Amendment, supplement, restatement or termination of any provision hereof, may be executed and delivered in counterparts by facsimile, each of which so executed and delivered counterpart is an original, and such counterparts, together, shall constitute but one and the same instrument. The Parties agree that they may deal with each other using electronic means.

13.8 Malicious Use

The End User must not under any circumstances cause or permit any Malicious Use of the Software and the End User acknowledges that any such use will result immediately in termination of this Agreement. The End User will be responsible to the Licensor on a full indemnity basis for any loss or damage suffered by or caused to the Licensor as a consequence of the End User's Malicious Use of the Software.

13.9 Governing Law

This Agreement shall be governed by and construed in accordance with the laws from time to time in force in the Jurisdiction and the Parties submit to the exclusive jurisdiction of the Courts of Queensland, Australia.

13.10 Validity

The provisions of this Agreement shall be construed and constructed so as not to infringe the provisions of any applicable Act or Regulation or be void or invalid or unenforceable at law or in equity, but if any provision on its true interpretation does infringe any applicable Act or Regulation, or is void, invalid or unenforceable at law or in equity, then that provision shall be read down to such extent as may be necessary to ensure that it does not so infringe or is not void, invalid, or enforceable and as may be reasonable in all the circumstances so as to give such provisions a valid operation of a partial character and in the event that the infringing provision cannot be so read down it shall be deemed to be void and severable from this Agreement without affecting the other provisions of this Agreement.

13.11 Intellectual Property Rights

The Licensor and its licensor retains all Right, title and interest in the Software including all Intellectual Property Rights embodied within the Software subject to the licence Rights explicitly granted to the End User as set out in the Agreement. This clause shall survive the termination or expiration of this Agreement.

13.12 Conflict of Interest

Each Party represents and warrants to the other, to the best of its knowledge, as at the Agreement Date no conflict of interest exists or is likely to arise in the performance of its obligations under this Agreement. Each Party will promptly notify the other in writing if a likely conflict of interest arises during the Term of the Agreement. Should a conflict arise which significantly affects the interests of the other Party, that conflict may be treated by the other Party as a breach of this Agreement.

14. DISPUTE RESOLUTION

If any dispute arises between the Parties or as to the interpretation of this Agreement, or in relation to any acts or matter or thing arising out of the entry into this Agreement by the Parties and it is not resolved between the Parties within a reasonable period of time (not exceeding fourteen (14) days from the date that the dispute first arises) then the dispute will be referred by the Parties to a mediator agreed to by the Parties, or failing agreement, a mediator appointed by the President from time to time of the Law Society or other association representing the profession within Queensland, Australia prior to either Party commencing court proceedings. The Parties acknowledge and agree that this will not prevent a Party making an application for urgent interlocutory relief.

15. ENTIRE AGREEMENT

15.1 Entire Agreement

To the extent permitted by law, this Agreement supersedes all prior agreements, arrangements and undertakings between the Parties and constitutes the entire agreement between the Parties in relation to those acts, matters or things that are contained in this Agreement.

15.2 Prevalence of written contract

Where the Licensor and the End User have entered into a written agreement relating to the provision of the Software, then the signed written agreement prevails. No addition to or modification of any provision of that written Agreement will be binding upon the Parties unless made by written instrument signed by a duly authorised representative of the Party.