TERMS AND CONDITIONS
 
SPINIFEX GO LICENSE
 

1.         introduction
 
1.1      These are the general terms and conditions governing access to and use of the Product.
1.2      These general terms and conditions:
(a)       are deemed to apply to a person accessing or making use of the Product;
(b)       apply to a Contracting Company by their execution of the Particulars of Agreement;
(hereinafter referred to severally as a “User”).
1.3      Nothing in these terms and conditions, the Particulars of Agreement, any use of the Product or any access by any person to any Spinifex website, server or computer software or program gives any person any intellectual property rights in respect of any part of the Product.  Access to and use of the Product is licensed, not sold. 
1.4      If there is any inconsistency between these general terms and conditions and the Particulars of Agreement, then the Particulars of Agreement shall have priority to the extent of such inconsistency and these terms and conditions will be read subject to the Particulars of Agreement.
 
2.         licence Grant
 
2.1      Spinifex grants to the Contracting Company a non-exclusive, non-transferable licence to use those modules of the Product included in the Particulars of Agreement for those sites and projects as noted in the Particulars of Agreement (Licence).
2.2      The Contracting Company may authorise a Contracting Group Company or a member of the Contracting Group Personnel to access and use the Product provided that it first makes all such arrangements as may be necessary to bind such persons to observe the terms and conditions of the Particulars of Agreement and these general terms and conditions which are stated to apply to a User.  Notwithstanding anything else in these terms and conditions, the Contracting Company shall be responsible for any breach of these terms and conditions by a User granted access by it pursuant to this clause notwithstanding that these terms and conditions may not be enforceable against such User.
2.3      Neither the Contracting Company nor any User is entitled to use any part or the whole of the Product for any project or site or any other purpose other than as specified in the Particulars of Agreement as being “licensed” and subject at all times to these terms and conditions.  Without limitation, the Contracting Company and each User shall only use the Product for such plant and equipment, personnel and operations which form part of or support a licensed site or project.
2.4      The Licence shall commence on the Date of Commencement and shall terminate on the earlier of:
(a)       the agreement of the Contracting Company and Spinifex; or
(b)       pursuant to clauses 6 or 7.
 
3.         Permitted Use 
 
3.1      The User may to the extent provided for in the Particulars of Agreement:
(a)       logon as a user to the Product;
(b)       use the modules of the Product included in the Particulars of Agreement for the sites and the project licensed;
in each case in accordance with the user instructions and subject to the directions of Spinifex from time to time.
3.2      The User may not under any circumstances: 
(a)       modify the Product except by entering data as required to operate the Product in accordance with the user instructions and subject to the directions of Spinifex from time to time; 
(b)       allow access or use of the Product or any part of it to persons not authorised or licensed by these terms and conditions and the Particulars of Agreement;
(c)       brand the Product or any part as its own or declare its own copyright on the Product; 
(d)       reverse engineer, disassemble, or create derivative works based on the Product or any part of it;
(e)       distribute, resell, rent, lease, sublicense or otherwise supply to a third-party the Product or any part of it even if it is modified or reverse engineered (including but not limited to any titles, computer code, trademarks, logos, themes, skins, objects, characters, dialog, icons, artwork, animation, sounds, methods of operation, moral rights, any related documentation, incorporated into the Product);
(f)        reproduce or use in the same or a modified format any part or all of the Product on or in relation to any site or project which is not included in the Particulars of Agreement;  or
(g)       modify, delete or obscure any copyright notices or labels on the Product or any Spinifex website, software or program or any document produced by the Product. 
3.3      The Contracting Company shall ensure that, prior to the use of the Product by its employees or agents or any User, all such parties are notified of this license and these terms and conditions.
 
4.         Title 
 
4.1      The User acknowledges and agrees that all title, ownership rights and intellectual property rights in the Product (including but not limited to any titles, computer code, trademarks, logos, themes, skins, objects, characters, dialog, icons, artwork, animation, sounds, methods of operation, moral rights, methods of work, and related documentation) are owned by Spinifex.

 
5.         Consideration
 
5.1      In consideration of the grant of the Licence, the Contracting Company agrees to pay the fees and other monies calculated in accordance with, and at the times prescribed, in the Particulars of Agreement.  
5.2      All monetary amounts referred to and required to be calculated pursuant to these terms and conditions and the Particulars of Agreement are exclusive of GST.
 
6.         DEFAULT
 
6.1      If: 
(a)       the Contracting Company fails to pay any monies owing to Spinifex on the due date for payment; or
(b)       a User fails to perform or observe any obligation stated to be applicable to it under these terms and conditions or the Particulars of Agreement;
 
(each a Default) and such Default is incapable of remedy or remains outstanding 14 days after notice in writing has been given by Spinifex to the Contracting Company specifying such Default then Spinifex may, by further notice in writing to the Contracting Company, immediately terminate the Licence and any agreement arising under these terms and conditions and the Particulars of Agreement.
 
6.2      If Spinifex fails to perform or observe any obligation stated to be applicable to it under these terms and conditions or the Particulars of Agreement and such default is incapable of remedy or remains outstanding 14 days after notice in writing has been given by the Contracting Company to Spinifex specifying such default then the Contracting Company may, by further notice in writing to Spinifex, immediately terminate the Licence and any agreement arising under these terms and conditions and the Particulars of Agreement and Spinifex will refund in 7 days any prepaid fees which relate to the period after the default notice was first provided by the Contracting Company under this clause.
 
6.3      Any termination of the Licence or an agreement arising under these terms and conditions and the Particulars of Agreement 
will not affect the rights of either party which have accrued prior to termination
 
7.         Termination
 
7.1      The Contracting Company or Spinifex may terminate the Licence and the  agreement arising from these terms and conditions and the Particulars of Agreement by 3 months notice in writing to the other party.  
7.2      If the Contracting Company:
(a)       has a liquidator, provisional liquidator, receiver, receiver and manager, official manager or administrator appointed to it;
(b)       enters into a scheme of arrangement with its creditors or otherwise compromises or compounds with its creditors;
(c)       give notice of a meeting of creditors with a view to the Contracting Company entering into a Deed of Company Arrangement;
(d)       enters into a Deed of Company Arrangement with creditors;
(e)       has an application made against it by a party other than Spinifex or other than a party related to Spinifex to a court seeking its winding up and such application is not stayed within fourteen (14) days;
(f)        has a winding up order made against it; 
(g)       resolves by special resolution that it be wound up voluntarily (other than for a members' voluntary winding up; or
(h)       has a mortgagee of any of its property take possession of that property,
Spinifex may in its sole and absolute discretion immediately terminate this agreement and the Licence .
7.3      Upon termination of the Licence Spinifex shall be entitled to block access by the User to any website, computer or server and shall be entitled to delete all files and data of the User stored on such computer or servers and the Contracting Company must immediately return to Spinifex all documentation, data, and other material provided to it by Spinifex.
 
8.         Limitation of Liability
 
8.1      To the maximum extent permitted by law, all risk and liability relating to the quality and performance of the Product is borne by the User.  Should the Product prove defective in any respect, the Contracting Company shall assume all cost and liability relating thereto provided that Spinifex uses its best endeavours to rectify the defect as soon as possible.  No use of the Product is authorized under the License except in accordance with the terms of this disclaimer.
8.2      To the maximum extent permitted by law, in no event will Spinifex or its directors, employees or agents be liable for any direct, indirect, special, incidental or consequential damages arising out of the use of or inability to use the Product, including, without limitation, damages for injury, loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses, even if advised of the possibility thereof, and regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based. In any case, Spinifex’ entire liability in relation to the supply to or use by any person pursuant to this agreement of the Product shall not exceed in the aggregate the sum of the fees paid to Spinifex relating to such supply or use.
8.3      Without limitation to the above, Spinifex will not be liable for any loss, claim or expense relating to the loss of any data irrespective of the cause of such loss of data provided that Spinifex uses its best endeavours to assist the Contracting Company recover such data loss as soon as possible.  
8.4      The Contracting Company is responsible for the security of all user names, passwords and logon details to the Product and the Spinifex website.  Spinifex will not be responsible for any unauthorised access, copying, alteration, destruction or publication of any data held on the Spinifex website or in cloud data storage facilities.
 
9.         confidentiality
 
9.1      Spinifex and the User must maintain absolute confidentiality concerning these terms and conditions, the Particulars of Agreement, any agreement arising out of those documents and all arrangements, documents and other matters whatsoever relating to those documents or the Product except that a party may make a disclosure:
(a)       to its employees, directors, professional advisers, bankers, auditors, financial advisers, financiers and other consultants upon those persons undertaking to keep strictly confidential any information so disclosed;
(b)       to comply with any applicable law or requirement, request or administrative practice of any regulatory body or government agency (including any relevant stock exchange upon which the securities of a party or a related body corporate of a party are listed or which is necessary to be included in a prospectus in accordance with section 710 of the Corporations Act); or
(c)       to a third party which is conducting bona fide due diligence investigations in furtherance of a possible sale of all or part of the party’s operations or business upon those persons undertaking to keep strictly confidential any information so disclosed.
9.2      Nothing in this clause 9 is to be treated as prohibiting or restraining the disclosure of any information which the party disclosing it can establish was in the public domain when it was disclosed.
 
10.      Miscellaneous
 
10.1    A notice to be given under these terms and conditions or the Particulars of Agreement:
(a)       must be in writing; and
(b)       must be left at the address of the addressee or sent by repaid ordinary post (airmail if outside Australia) or by facsimile to the facsimile number of the addressee as set out in the Particulars of Agreement as the same may be varied by a party by notice in writing to the other parties.
10.2    These terms and conditions and the Particulars of Agreement and any agreement arising out of those documents shall in all respects be governed by and construed in accordance with the laws in force in the State of Western Australia.  Each party submits to the non-exclusive jurisdiction of the courts of the State of Western Australia and the Commonwealth of Australia and Courts of appeal from them in respect of all matters relating to such documents and agreement.
10.3    These terms and conditions and the Particulars of Agreement and any agreement arising out of those documents may only be varied or amended by an instrument in writing signed by both Parties.
10.4    The User may not assign or transfer any of its rights and obligations in relation to the Product or these terms and conditions, the Particulars of Agreement or any agreement arising out of those documents without the prior written consent of Spinifex which may be granted or withheld in its complete discretion.
10.5    Spinifex may assign any and all rights and obligations under these terms and conditions and the Particulars of Agreement and any agreement arising out of those documents by deed poll provided such assignee has sufficient rights to the Product to satisfy its obligations under these terms and conditions and the Particulars of Agreement.
 
11.      Definitions
 
11.1    In these terms and conditions and the Particulars of Agreement, the following terms have the meanings ascribed to them unless the context requires otherwise:
Contracting Company means the company or person described as such in the Particulars of Agreement.
 
Contracting Group Company means a related body corporate (as that term is defined in the Corporations Act 2001 (Cth)) of the Contracting Company
 
Contracting Group Personnel means the employees of the Contracting Group Companies.
 
Date of Commencement means the date described as such in the Particulars of Agreement.
 
Default has the meaning as defined in clause 6.1 above.
 
Licence means the licence granted pursuant to clause 2.1.
 
Particulars of Agreement means the document described as such and signed by the Contracting Company and Spinifex and which incorporates these terms and conditions by reference.
 
Product means the systems, processes, documents, working methods, work systems, websites, software, computer servers and hardware and other intellectual and physical property making up Spinifex Go or any of its individual modules as the same may be updated and amended by Spinifex from time to time.
 
Spinifex means Spinifex Productivity Engineering Pty Ltd ABN 92 135 662 645.
 
User has the meaning as defined in clause 1.2 above.
11.2    The terms, GST and Input Tax Credit used in these terms and conditions have the meanings given to those terms by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended from time to time).