SOFTWARE LICENCE: OUR STANDARD TERM
ELEX RATIO PTY LTD ABN 16 164 212 757
Permission to use this Licensed Program is, in the absence of written agreement to the contrary, conditional upon you, the licensee, agreeing to the terms set out below. This software is only offered to you on condition that you read and accept all the terms of this licence and wish to become a licensee of the software. Acceptance will bind you and all of your employees to the terms of the licence.
1. Licence
Pursuant to this licence, the licensee acquires a non-exclusive right to use the Licensed Program subject to the terms and conditions set out below.
2. Use as Background Material
In circumstances where, under a separate contract, the Licensed Program is supplied as background material (including where it is sub-licensed or on-licensed to the licensee by a prime contractor), the licensee is granted a perpetual, worldwide licence to use the Licensed Program in connection with any developed material supplied under the separate contract.
3. Ongoing development work
In circumstances where, under a separate contract, the licensee is assigned ownership of foreground intellectual property which incorporates the Licensed Program as “background material”, there is no assignment of intellectual property in modifications or enhancements to the Licensed Program which are created in parallel with the separate project as part of Elex Ratio’s ongoing internal product research and development, even if such modifications or enhancements form part of the foreground material.
4. Licence fee
Use of the Licensed Program is subject to payment of the agreed licence fee.
5. Documentation
This licence extends to any accompanying documentation or related materials. The documentation and materials may not be copied, modified or used in any way not contemplated or expressly authorised by this agreement or by a related agreement between the parties.
6. Licensee's obligations
The licensee hereby undertakes the following obligations:
(a) to refrain from copying, reproducing, translating, adapting, reverse engineering, decompiling, varying or modifying the Licensed Program without the express consent of Elex Ratio, except as expressly authorised under a separate agreement or under Pt III Div 4A of the Copyright Act 1968 (Cth);
(b) to supervise and control the use of the Licensed Program in accordance with the terms of this licence;
(c) to ensure its employees, sub-contractors and other agents who have authorised access to the Licensed Program are made aware of the terms of this licence;
(d) to refrain from providing or otherwise making the Licensed Program available in any form to any person other than those referred to in paragraph (c) without the written consent of Elex Ratio;
(e) to refrain from giving, leasing, assigning, licensing, sub-licensing, transferring, distributing, disclosing, disseminating or publishing the Licensed Program in any form to any other person or attempt to do any of these acts; and
(f) to refrain from using the Licensed Program for or in connection with a service bureau operation.
7. Warranty
(a) The licensee acknowledges that the Licensed Program cannot be guaranteed error free and further acknowledges that the existence of any such errors shall not constitute a breach of this licence.
(b) Notwithstanding subclause 7(a), Elex Ratio warrants that the Licensed Program will in all material respects perform in accordance with its published specifications.
(c) Subject to clause 7(d), Elex Ratio will not be liable for any indirect or special loss or damage arising out of a breach of this agreement or arising out of the supply of defective software.
(d) Nothing in this agreement excludes, restricts or modifies any condition, warranty, right or liability implied in this agreement or protected by law to the extent that such exclusion, restriction or modification would render this agreement or any provision of this agreement void, illegal or unenforceable. Subject to the foregoing, any condition, warranty, right or liability which would otherwise be implied in this agreement or protected by law is excluded.
(e) The application of the United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention) to this agreement (by virtue of any law relevant to this agreement) is excluded.
(f) liability for breach of a guarantee conferred by the Australian Consumer Law other than those conferred by sections 51–53 of that law, is limited:
(i) in the case of goods, to any one of the following as determined by Elex Ratio:
A. the replacement of the goods or the supply of equivalent goods; or
B. the repair of the goods; or
C. the payment of the cost of replacing the goods or of acquiring
equivalent goods; or
D. the payment of the cost of having the goods repaired;
(ii) in the case of services, to any one of the following as determined by Elex Ratio:
A. the supplying of the services again; or
B. the payment of the cost of having the services supplied again.
8. Copyright and Trade Marks
(a) The licensee acknowledges that the Licensed Program, documentation and related materials are the subject of copyright. The licensee will not during or any time after the expiry or termination of this licence permit any act which infringes that copyright and, without limiting the generality of the foregoing, the licensee specifically acknowledges that it may not copy the Licensed Program except as otherwise expressly authorised or acknowledged by this agreement.
(b) The licensee shall not during or at any time after the expiry or termination of this Licence permit any act which infringes Elex Ratio's trade marks used in connection with the Licensed Program
(c) The licensee will indemnify Elex Ratio fully against all liabilities, costs and expenses which Elex Ratio may incur to a third party as a result of the licensee's breach of the intellectual property provisions of this licence.
9. Term of licence
(a) This licence is granted in perpetuity unless the parties have agreed otherwise. It may be terminated in the following circumstances:
(i) if the licensee is in breach of any term of this agreement;
(ii) if the licensee, being a corporation, becomes the subject of insolvency proceedings;
(iii) if the licensee, being a firm or partnership, is dissolved; or
(iv) if the licensee destroys the Licensed Program and documentation for any reason.
(b) Upon termination, the licensee or its representative will destroy any remaining copies of the Licensed Program and documentation or otherwise return or dispose of such material in the manner directed by Elex Ratio.
(c) Termination pursuant to this clause will not affect any rights or remedies which Elex Ratio may have otherwise under this licence or at law.
10. Assignment
The benefit of this agreement will not be dealt with in any way by the licensee (whether by assignment, sub-licensing or otherwise) without Elex Ratio’s written consent.
11. Waiver
Failure or neglect by either party to enforce at any time any of the provisions of this agreement will not be construed or deemed to be a waiver of that party's rights under this licence.
12. Governing law
This licence will be governed by and construed according to the law of the State of Victoria, Australia