THIS AGREEMENT dated the … day of …………………. in the year of ……
Direct Project Solutions in the state of Victoria, Australia ("DPS")
THE PARTY SPECIFIED IN ITEM 1 OF THE SCHEDULE ("Licensee")
A. DPS is the proprietor of the Software, or is licensed to sub-licence the Software (in the latter case, where agreement refers to ‘the proprietor’, this means the original licensor).
B. The Licensee wishes to use the Software in carrying out its business.
C. DPS has agreed to grant the Licensee the right to use the Software on the terms and conditions of this agreement.
1. DEFINITIONS & interpretation
In this agreement, the following words shall have the following meanings:
(a) "Approved Brand" means the brand under which the Software is sub-licensed by the Licensee, as specified in Item 8 of the Schedule or such other brand approved by DPS from time to time;
(b) "Authorised End Users" means the pre-approved sub-licensees specified in Item 9 of the Schedule;
(c) "Business Day" means a day (other than a Saturday, Sunday or a bank or public holiday) on which banks are open for business in Melbourne, Victoria;
(d) "Confidential Information" means the confidential information of a party which relates to the subject matter of this Agreement and includes information relating to:
(i) the design, specification and content of the Software;
(ii) the personnel, policies or business strategies of a party; and
(iii) the terms upon which the Software is being supplied, installed and supported, pursuant to this Agreement;
(e) "Commencement Date" means the date specified in Item 2 of the Schedule;
(f) "Documentation" means the operating manuals and other printed materials referred to in Item 7 of the Schedule and includes any user manuals, programming manuals, modification manuals, flow charts, drawings and software listings which are designed to assist or supplement the understanding or application of the Software;
(g) "Further Term" means the successive renewal periods of the duration specified in Item 5B of the Schedule;
(h) "GST" means the same as in the GST Law and includes any other goods and services tax, or any tax applying to this transaction in a similar way and any additional tax, penalty tax, fine, interest or other charge under a law of such a tax;
(i) "GST Law" means the same as "GST law" in A New Tax System (Goods and Services Tax) Act 1999 (Cth);
(j) "Initial Term" means the initial term of this agreement specified in Item 5A of the Schedule;
(k) "Insolvency Event" in relation to a party, means the happening of any of the following events:
(i) the party ceases to be able to pay its debts as they become due;
(ii) the party becoming an ‘externally-administered body corporate’ within the meaning of the Corporations Act 2001 (Cth);
(iii) any step being taken for the winding up or dissolution of the party;
(iv) a meeting of directors of the party considers a resolution that an administrator of that party should be appointed;
(v) the party being insolvent within the meaning of the Corporations Act 2001 (Cth), or being taken or presumed to be insolvent;
(vi) the party commits an ‘act of bankruptcy’ within the meaning of section 40 of the Bankruptcy Act 1966 (Cth);
(vii) distress, attachment or other execution being levied or enforced over any of the party’s property; or
(viii) anything analogous to or of a similar effect to anything described above under the law of any relevant jurisdiction occurs in respect of the party;
(l) "Intellectual Property Rights" means any and all intellectual and industrial property rights throughout the world relating to the Software and the Documentation, including rights in connection with any Confidential Information, copyright (including future copyright and rights in the nature of or analogous to copyright), inventions (including patents), trade marks, business names, domain names, designs, circuit layouts and databases, whether or not existing as at the Commencement Date and whether or not registered or registrable and including any right to apply for the registration of such rights and includes all relevant renewals and extensions;
(m) "Licence" means the licence granted under clause 3.1;
(n) "Licence Fee" means the fee payable by the Licensee for the grant of the Licence set out and payable in accordance with Item 4 of the Schedule;
(o) "New Release" means software which has been developed by DPS primarily to provide an extension, alteration, improvement or additional functionality to the Software;
(p) "Software" means the software specified in Item 3 of the Schedule and includes any Update or New Release (if any);
(q) "Special Conditions" means the additional licence conditions specified in Item 10 of the Schedule, if any;
(r) "Update" means software which has been produced by DPS primarily to overcome errors or defects in the Software;
(s) "Term" means the Initial Term and Further Term(s) (as applicable); and
(t) "Territory" means the territory specified in Item 6 of the Schedule.
In this agreement, unless the context otherwise requires:
(a) words denoting the singular include the plural and vice versa, and reference to any gender includes all genders;
(b) headings are for convenience only and do not affect interpretation;
(c) a reference to a party to this agreement includes that party’s executors, administrators, successors and permitted assigns;
(d) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(e) the word “including” is not to be treated as a word of limitation;
(f) a reference to “$” or “dollars” is a reference to Australian currency;
(g) a reference to any legislation or legislative provision includes any regulations or other delegated legislation or instruments made or issued under it and any consolidations, amendments, re-enactments or replacements of it and them and any of them; and
(h) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this agreement.
2.1 This agreement shall commence on the Commencement Date and shall continue for the Initial Term unless extended or terminated in accordance with clause 2 or clause 14.
2.2 Subject to clause 2.3, upon expiry of the Initial Term, this agreement will be automatically renewed for successive Further Terms, each Further Term to commence upon the expiry of the Initial Term or Further Term (as the case may be).
2.3 If either party does not wish to renew this agreement for a Further Term, that party shall provide the other party at least thirty (30) days notice in writing prior to the expiry of the Initial Term or subsequent Further Term (as the case may be).
3.1 Subject to the terms and conditions of this agreement and in consideration for the payment of the Licence Fee by the Licensee, DPS hereby grants to the Licensee a non-exclusive, non-transferable licence to use the Software and the Documentation in the Territory for the Term ("Licence").
3.2 The Licensee hereby accepts the Licence granted by DPS and undertakes to pay the Licence Fee and use the Software and the Documentation in accordance with both the terms of this agreement and any reasonable directions given by DPS from time to time.
3.3 The Licensee must:
(a) at its own cost, conduct such virus scans and testing on the Software as may reasonably be required from time to time to ensure that the Software is free from all known viruses, errors and defects;
(b) at its own cost, conduct such backups as may reasonably be required from time to time; and
(c) not use the Software in any operating environment other than the Designated Operating System, and any use of the Software in any alternative operating environment is undertaken by the Licensee at its sole risk.
3.4 The Licensee acknowledges and agrees that:
(a) the Software cannot be guaranteed to be error free and that the existence of any such errors shall not constitute a breach of this agreement; and
(b) it has exercised its independent judgement in acquiring the Software and has not relied on any representations made by DPS which have not otherwise been expressed in this agreement.
4.1 During the Term, the Licensee may sub-licence the Software to Authorised Users in the Territory, provided that:
(a) the sub-licence must be on terms consistent with this agreement and must be evidenced in a written agreement; and
(b) the Licensee will remain liable for any acts or omissions of its sub-licensees.
4.2 The parties acknowledge and agree that the Software sub-licensed in accordance with clause 4.1 will be provided under the Approved Brand.
4.3 For the avoidance of doubt, the Licensee acknowledges and agrees that it may not grant sub-licences in respect of the Software other than as expressly permitted under this clause 4 or as otherwise approved in writing by DPS.
5.1 The Licensee must pay to DPS the applicable Licence Fee on all amounts invoiced by the Licensee relating to the Software, in accordance with this clause 5.
5.2 The Licensee must within ten (10) Business Days of March 31, June 30, September 30 and December 31 in each respective year of the Term deliver to DPS a written statement showing:
(i) the amounts invoiced by the Licensee during the relevant period;
(ii) a calculation of the Licence Fee payable;
(iii) any relevant adjustments to the invoiced amount, such as returns or rebates; and
(iv) any other information or particulars reasonably requested by DPS from time to time.
5.3 DPS may issue a tax invoice for the Licence Fee at any time following receipt of notification from the Licensee under clause 5.2. Unless otherwise agreed, the Licensee must pay to DPS the amount of each invoice via telegraphic transfer or electronic funds transfer into the account nominated by DPS for this purpose within fourteen (14) days of receipt of the relevant invoice.
5.4 The Licensee must keep accurate records and accounts relating to sub-licensing of the Software. The Licensee must permit DPS or its nominee to inspect such records at any time during the Licensee's normal business hours. If DPS requests, the Licensee must provide to DPS a copy of all or any part of such records.
6. UPDATES and New Releases
6.1 During the Term, DPS may (but is not obliged to) issue to the Licensee Updates or New Releases from time to time.
6.2 DPS shall provide to the Licensee such Documentation as may be reasonably required for the Licensee to (where applicable) download, install or use any Update or New Release (as the case may be) and any further Documentation of training required by the Licensee in addition to the above shall be charged at DPS's ordinary hourly rates from time to time.
6.3 Upon the provision of any Updates or New Releases in accordance with this clause 4, the terms of this agreement shall continue to apply in all respects to the Update or New Release which shall be deemed to form part of the Software for the purpose of this agreement.
7.1 Unless otherwise agreed between the parties in a separate written agreement, DPS will not be obliged to support the Software, whether by providing advice, training, error-correction, modifications, Updates, New Releases or enhancements or otherwise.
8.1 The Licensee will at all times be solely responsible for the use, supervision, management and control of the Software and must ensure that the Software is protected at all times from misuse, damage, destruction or any form of unauthorised use.
8.2 The Licensee must not:
(a) copy or reproduce the Software;
(b) modify, adapt, vary or alter the Software;
(c) merge all or any part of the Software with any other software;
(d) reverse assemble or reverse compile the whole or part of the Software; or
(e) directly or indirectly allow or cause a third party to do any of the acts specified in sub-clauses (a) to (d).
8.3 The Licensee must ensure that its officers, employees, agents, sub-licensees and any other persons within its control comply with the obligations imposed under this clause 8.
9.1 The Licensee acknowledges that there is no transfer of title or ownership to the Licensee of the Software or the Documentation (or any associated Intellectual Property Rights), or any modifications, Updates or New Releases of the Software (or any Intellectual Property Rights associated with these alternative versions of the Software).
9.2 Without limiting the Licensee's obligations under clause 8, the parties agree and acknowledge that ownership of any and all improvements, modifications and enhancements that are made to the Software or the Intellectual Property by the Licensee through its use of the Software during the Term shall vest absolutely with DPS on creation.
9.3 The Licensee must not use the Software or act during the Term in any way that may infringe any Intellectual Property of DPS.
9.4 The Licensee must not use DPS's name, logo or trademarks in any of the Licensee's written documentation, including media releases or promotional materials, without DPS's prior written consent.
9.5 The Licensee must notify DPS immediately after becoming aware of any suspected or actual infringement by any person of any of the Software or Intellectual Property, or any unauthorised use of any of DPS's Confidential Information.
10.1 The Licensee must keep all Confidential Information in strict confidence and must not:
(a) use or disclose any Confidential Information for any purpose; or
(b) copy any document containing Confidential Information,
except as necessary to perform its obligations or exercise its rights under this agreement.
10.2 The Licensee is permitted to disclose DPS's Confidential Information:
(a) where required to do so by law or under the rules of any stock exchange to disclose the Confidential Information, provided that the Licensee gives DPS reasonable advance notice and opportunity to object to the requirement to disclose such information or obtain an appropriate order to protect its Confidential Information; or
(b) if, and to the extent that, such Confidential Information enters the public domain, other than as a result of a breach by the Licensee of its obligations under this clause.
10.3 On termination or expiration of this agreement, the Licensee must immediately return or destroy (at DPS's sole option) all documents or copies of documents containing information which is, at the date of termination or expiration, Confidential Information.
10.4 The Licensee must ensure that its officers, employees, agents, sub-contractors and any other persons within its control comply with the obligations of confidentiality imposed under this clause 10.
10.5 The obligations of confidence under this clause 10 shall survive the termination or expiration of this agreement.
11.1 Each party warrants that it has authority to enter into and to perform its obligations under this Agreement and it has the ability to perform, and will perform, its obligations under this Agreement.
11.2 The Licensee acknowledges that the Software is provided “as is”. To the extent permitted by law, DPS excludes all express or implied warranties in respect of the Software, including but not limited to implied warranties of merchantability or fitness for a particular purpose. DPS does not warrant that the Software (or any part of it) will be error free, or that the Licensee's use of the Software will be uninterrupted, or that the Software will meet the requirements of the Licensee. The Licensee assumes the entire risk of using this Software.
11.3 The Licensee assumes full responsibility for any and all information or results obtained from the use of the Software, and for the application of such information and results. To the fullest extent permitted by law, DPS excludes all representations, warranties, terms and conditions (including but not limited to those implied by statute, custom, law, practice or otherwise), except as expressly set out in this Agreement. For the avoidance of doubt, and without limitation or prejudice to the generality of the foregoing, the Licensee acknowledges that DPS does not give any implied warranties of merchantability, satisfactory quality or fitness for purpose.
12.1 Unless expressly prohibited by any applicable law or as otherwise provided in this agreement:
(a) all conditions and warranties are expressly excluded by DPS from this agreement; and
(b) DPS shall not be liable to the Licensee (whether in contract, negligence, tort, under any statute or otherwise) for loss or damage of any kind (including direct, indirect and consequential loss and damage, loss of business revenue, loss or profits, failure to realise expected profits or savings or other commercial or economic loss of any kind), however caused arising out of or in any way related to the Software, or defect, failure or delay in the Software or any part of the Software or the performance or non-performance of any of the obligations DPS under this agreement.
12.2 Notwithstanding clause 12.1, to the fullest extent permitted by law, the total liability of DPS to the Licensee in respect of all claims made under or in connection with this Agreement (whether arising out of breach of contract, negligence or any other tort, under statute or otherwise) will not in aggregate exceed the amount of the Licence Fee actually paid by the Licensee in the twelve (12) months immediately preceding the claim.
12.3 Notwithstanding clause 12.1, to the extent DPS is unable to fully exclude its liability pursuant to applicable legislation (including the Competition and Consumer Act 2010 (Cth)), and to the extent that it is entitled to do so, DPS limits its liability in respect of any breach of applicable legislation to (at DPS's option):
(a) the replacement or resupply of the Software;
(b) the repair of the Software;
(c) the payment of the reasonable costs of acquiring equivalent goods to the Software; or
(d) the payment of the cost of having the Software repaired.
12.4 The Licensee waives any right it may have or may subsequently have to claim against DPS or its Representatives for any consequential loss or damage however arising in this agreement, including in respect of the Software or any performance or non-performance of this agreement.
13.1 The Licensee indemnifies and holds harmless DPS and its Representatives ("those indemnified") from and against all costs, actions, proceedings, suits, claims and demands incurred by or brought or made against DPS by any person arising from or in consequence of:
(a) any use or misuse of the Software by the Licensee or any third party;
(b) any breach of or non-compliance by the Licensee or its Representatives of its warranties or obligations under this agreement; or
(c) any wilful misconduct or negligence of the Licensee or its Representatives.
14.1 Without limiting any other right under this Agreement or at law, DPS may terminate this agreement at any time with immediate effect by giving notice to the Licensee if:
(a) both parties agree to the termination;
(b) the Licensee has committed a material breach of this agreement not capable of remedy;
(c) the Licensee breaches any of the provisions of this agreement and has failed to remedy that breach within fourteen (14) days after receiving notice requiring it to do so;
(d) the Licensee fails to pay any part of the Licence Fee within seven (7) days of the date on which such payment becomes due and payable; or
(e) the Licensee becomes subject to an Insolvency Event.
14.2 Upon the termination of this agreement in accordance with this clause 10, the Licensee must immediately:
(a) stop using the Software and return to DPS the Software together with any Intellectual Property in the Licensee's possession or control;
(b) uninstall and remove all copies of the Software from the Licensee’s server and certify in writing within ten (10) days of termination that it has done so;
(c) provide DPS with such access to the Licensee's premises as may be reasonably necessary to enable DPS to:
(i) remove or render inoperable any part of the Software that is incapable of being returned by the Licensee; or
(ii) repossess the Software; and
(d) pay to DPS any of the License Fee that is outstanding at the date of termination.
14.3 Termination of this agreement will not affect the accrued rights or remedies of either party.
14.4 Upon termination or expiration of this Agreement, clauses 4.1(b), 8, 9, 10, 11, 12, 13 and this clause 14 and any other clauses of this Agreement which by their nature are intended to survive termination or expiration of the Term, survive and continue in full force and effect.
15.1 In this clause, words and expressions which are not defined in this Agreement but which have a defined meaning in the GST Law have the same meaning as in the GST Law.
15.2 Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under this Agreement are inclusive of GST.
15.3 If a supply made pursuant to this Agreement is a taxable supply, the recipient will pay on demand to the supplier any GST payable on that supply in addition to any other amount that may be payable by the recipient to the supplier for that supply pursuant to this Agreement, provided that the supplier provides to the recipient a valid tax invoice in the form prescribed by the GST Law within fourteen (14) days of such payment.
15.4 Where a party is required under this Agreement to pay or reimburse an expense or outgoing of another party, the amount to be paid or reimbursed by the first party will be the sum of:
(a) the amount of the expense or outgoing less any input tax credits in respect of the expense or outgoing to which the other party, or to which the representative member for a GST group of which the other party is a member, is entitled; and
(b) if the payment or reimbursement is subject to GST, an amount equal to that GST.
16.1 Any notice given under this Agreement must be in writing and signed by or for the sender and delivered by post, hand or fax to the relevant address specified in this Agreement or such other address specified by a party by notice in writing to the other party.
16.2 A notice or other communication is deemed given if:
(a) personally delivered, upon delivery;
(b) mailed to an address in Australia, two (2) Business Days after the date of posting (whether received or not);
(c) mailed to an address outside Australia, five (5) Business Days after the date of posting (whether received or not); and
(d) sent by facsimile, at the time of transmission provided that the sender's machine produces a transmission report confirming the successful transmission of the total number of pages of the notice.
17.1 Each party must bear its own costs arising out of the negotiation, preparation and execution of this Agreement.
17.2 This Agreement contains the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements and understandings between the parties in connection with it.
17.3 No amendment or variation of this Agreement is valid or binding on a party unless made in writing executed by all parties.
17.4 The benefit of this Agreement must not be assigned by the Licensee without DPS's written consent, which may be given or withheld subject to such conditions as it chooses to impose. DPS may assign the benefit of this Agreement without DPS's written consent.
17.5 No failure to exercise nor any delay in exercising any right, power or remedy by a party operates as a waiver. A single or partial exercise of any rights, 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.
17.6 If any provision of this document 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 document or affecting the validity or enforceability of that provision in any other jurisdiction.
17.7 Each party agrees to do all things and sign all documents necessary or desirable to give full effect to the provisions of this Agreement and the transactions contemplated by it.
17.8 This Agreement is governed by the laws of Victoria and each party submits to the non-exclusive jurisdiction of courts exercising jurisdiction there in connection with matters concerning this Agreement.
17.9 This Agreement may be executed in any number of counterparts (including facsimile counterparts) and all counterparts when exchanged will be taken to constitute one document.
17.10 The relationship between the parties is that of independent contractors and the parties are not partners, joint venturers or principal and agent.
EXECUTED as an AGREEMENT
EXECUTED by DIRECT PROJECT SOLUTIONS in accordance with s127(1) of the Corporations Act by:
Director/Secretary (delete inapplicable)
and if only one person has signed, that person states that he/she is the sole director and sole secretary of the company
Signed for and on behalf of THE PARTY SPECIFIED IN ITEM 1 OF THE SCHEDULE by its Director and duly authorised representative, who warrants that they have the authority to enter into this document on behalf of that company, in the presence of
Full Name of Witness