General Licence Terms and Conditions for DesignBais Software
YOU WILL OFFER TO ENTER INTO A CONTRACT ON THE TERMS AND CONDITIONS OF THIS LICENCE IF YOU DOWNLOAD, INSTALL OR OTHERWISE USE THE DESIGNBAIS SOFTWARE
THIS AGREEMENT is made BETWEEN:-
DESIGNBAIS PTY LTD ACN 056 589 087 of 90 Arthur Street, North Sydney 2060 in the State of New South Wales, Australia (DesignBais)
AND
THE CORPORATION OR ENTITY identified in the Order Form (Licensee):
RECITALS
(a) to use Developer to develop software programs which it will offer for sale to its customers (End Users);
(b) to obtain the right to Sub-licence its Customers to use Runtime to run the programs it develops.
AGREED TERMS
1.1Defined terms
In this agreement:
Consequential Loss means loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than the cost of repair), loss of opportunity or expectation loss and any other form of consequential, special, indirect, punitive or exemplary loss or damage;
Derivative Programs means software programs developed by the Licensee using Developer;
Due Date means an anniversary of the date on which the licence to use Developer is granted under clause 4.
Intellectual Property Rights means all intellectual property rights, including but not limited to the following rights:
(a) patents, copyright, rights in circuit layouts, registered and unregistered designs, trade marks, domain names, business names and any right to have confidential information kept confidential; and
(b) any application or right to apply for registration of any of the rights referred to in paragraph (a);
Licence Fees means the fees specified in the Order Form, or notified by DesignBais from time to time, payable by the Licensee for Developer or Runtime;
Loss means any loss, cost, liability or damage, including reasonable legal costs on a solicitor/client basis and includes Consequential Loss, unless otherwise stated;
Maintenance Fee means the annual fees specified in the Order Form, or notified by DesignBais from time to time, payable by the Licensee for maintenance and upgrades of Developer;
Order Form means the online form provided on the DesignBais Internet site which captures the details of the Licensee and its requirements;
Sub-licence means a sub-licensing arrangement for Runtime entered into in accordance clause 5.
1.2Interpretation
In this agreement, except where the context otherwise requires:
(a) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
(b) a reference to a party is to a party to this agreement, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and persons to whom this agreement is novated;
(c) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
(d) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re‑enactments or replacements of any of them; and
(e) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions.
1.3Headings
Headings are for ease of reference only and do not affect interpretation.
2.1Submission
If the Licensee wishes to use Developer, or Sub-licence Runtime to one or more End Users, it must complete and submit to DesignBais an Order Form for acceptance by DesignBais.
2.2Separate Orders Forms for End Users
The Licensee must complete and submit a separate Order Form each time it wishes to Sub-licence a new End User.
2.3Acceptance and rejection of Order Forms
On receipt of an Order Form, DesignBais will either:
(a) reject the Order Form; or
(b) accept the Order Form, in which case a contract will be formed between DesignBais and Licensee.
Once an Order Form has been accepted, DesignBais will provide to the Licensee a version of Developer or Runtime (as the case may be) which satisfies the requirements specified in the Order Form.
Once an Order Form for Developer has been accepted by DesignBais and the applicable Licence Fee has been paid, DesignBais will grant to the Licensee a non-exclusive, world-wide licence:
(a) to install and use Developer to create Derivative Programs; and
(b) make as many copies of Developer as the Licensee reasonably requires for testing, disaster recovery, backup and security purposes.
5.1Sub-licence rights for Runtime
Once an Order Form for Runtime has accepted by DesignBais and the applicable Licence Fee has been paid, DesignBais will grant to the Licensee a non-exclusive, world-wide licence to Sub-licence the End User or End Users (as the case may be) specified in the Order Form:
(a) to use Runtime to run Derivative Programs created by the Licensee; and
(b) to make as many copies of Runtime as the End User reasonably requires for testing, disaster recovery, backup and security purposes.
5.2Requirements for Sub-licence agreement
Any Sub-licence entered by the Licensee for Runtime must contain:
(a) restrictions on the End User equivalent to those set out in clause 6 and confidentiality obligations equivalent to those set out in clause 11;
(b) a right for the Licensee to terminate the Sub-licence if the End User breaches any of those restrictions or confidentiality provisions; and
(c) an obligation on the End User to agree to novate the Sub-licence to DesignBais and execute all documentation necessary to effect that novation if requested to do so by DesignBais on termination of this agreement.
5.3Other obligations
The Licensee must:
(a) comply with any reasonable directions of DesignBais in relation to the use, marketing and promotion of the Software;
(b) not make any representations or warranties on behalf of DesignBais or in relation to the Software unless authorised in writing by DesignBais to do so;
(c) not through any act or omission cause damage to DesignBais or its brand, including any goodwill in the Software;
(d) monitor the use of Runtime by End Users to ensure that the End Users are acting in accordance with the terms of the Sub-licence;
(e) notify DesignBais of any breach of a Sub-licence by an End User within 7 days of becoming aware of the breach;
(f) exercise its right to terminate referred to in clause 5.2(b) if directed to do so by DesignBais.
Except where expressly permitted under this agreement, the Licensee must not, and must not allow any person to:
(a) copy the Software;
(b) alter, modify, tamper with, decompile, disassemble, reverse engineer or attempt to reverse engineer the Software or otherwise attempt to derive the Software source code from the object code except to the extent permitted by applicable law or treaty; or
(c) sell, rent, lease, sub-license, assign or otherwise transfer the Software to any person.
During the term of this agreement and from time to time, DesignBais may provide upgrades or updates for Developer to the Licensee. If DesignBais specifies that the upgrade or update is a mandatory upgrade or update, the Licensee must:
(a) install and use the upgrade or update for Developer;
(b) cease to use the previous version of Developer; and
(c) cause each End User to:
(i) install and use the upgrade or update for Runtime; and
(ii) cease to use the previous version of Runtime.
The Licensee:
(a) must pay:
(i) the applicable Licence Fee on acceptance by DesignBais of an Order Form; and
(ii) the Maintenance Fee on each Due Date; and
(b) authorises DesignBais to charge the Licence Fee and Maintenance Fee to the credit card nominated in the Order Form.
9.1Performance warranty
DesignBais warrants that the Software will perform substantially in accordance with its documentation for a period of 90 days from the date the licence commences (Warranty Period).
9.2Remedy
If the Software fails to perform substantially in accordance with its documentation during the Warranty Period, DesignBais will, as the Licensee's sole and exclusive remedy, use its reasonable endeavours to correct that failure unless that failure is caused by:
(a) any event beyond the reasonable control of DesignBais;
(b) any breach of this agreement by, or negligent act or omission of, the Licensee, its employees, agents, servants, contractors or others for whom it is responsible;
(c) failure of any equipment or service used by the Licensee but not provided by DesignBais;
(d) an act or omission of any third party; or
(e) abuse or misapplication by the Licensee.
10.1Exclusion of implied warranties
DesignBais excludes from this agreement all conditions and warranties implied by statute (including by the Trade Practices Act 1974 (Cth)), general law or custom except any implied condition or warranty the exclusion or limitation of which would contravene any statute or cause any part of this clause to be void or unenforceable (Non‑excludable Condition).
10.2Liability for breach of Non-excludable Condition
DesignBais' liability to the Licensee for a breach of any Non‑excludable Condition is limited, at DesignBais' option:
(a) to providing again the goods or services in respect of which the breach occurred; or
(b) to refunding the fees actually paid by the Licensee to DesignBais under this agreement.
10.3Limitation of liability
Except to the extent that to do so would cause any part of this clause to be void or unenforceable, DesignBais excludes any and all liability for any Loss suffered or incurred by the Licensee, except to the extent that that Loss is caused by the negligence of DesignBais.
The maximum aggregate liability of DesignBais for Loss suffered or incurred by the Licensee which is caused by the negligence of DesignBais is limited to an amount equal to the Licence Fee paid by the Licensee.
10.4Indemnity
The Licensee indemnifies DesignBais for any Loss suffered or incurred by DesignBais in connection with:
(a) any claim by an End User (whether based in contract, tort (including negligence), statute or otherwise) against DesignBais in connection with the Software; and
(b) any negligent or wilful act or omission of the Licensee, its employees, agents, servants, contractors or any others for whom it is responsible.
11.1Confidential Information and Privacy Legislation
In this clause:
Confidential Information of a party ('Disclosing Party') means all information of that party:
(a) designated as or treated by the Disclosing Party as confidential; or
(b) which the other party knows, or ought reasonably to know, is confidential.
and in the case of DesignBais includes the structure and organisation of the Software; and
Privacy Legislation means the Privacy Act 1988 (Cth.), and such other Commonwealth and State Acts in relation to the collection, storage, disclosure and use of personal and/or medical or health information of employees.
11.2Obligations of Recipient
Each party receiving information ('Recipient'):
(a) must keep confidential all Confidential Information of the Disclosing Party; and
(b) may use Confidential Information of the Disclosing Party only for the purposes of and to the extent permitted in this agreement.
11.3Exceptions
The obligations of confidentiality under this agreement do not extend to information that (whether before or after the date of this agreement):
(a) is rightfully known to or in the possession or control of the Recipient and not subject to an obligation of confidentiality on the Recipient;
(b) is public knowledge (otherwise than as a result of a breach of confidentiality by a party to this agreement or any of its disclosees); or
(c) a Recipient is required by law to disclose, but only to the extent of that requirement.
11.4Obligations in relation to privacy
Each party must comply, and ensure that its employees and contractors comply, with its obligations under applicable Privacy Legislation in performing under this agreement.
12.1Automatic termination
If the Licensee does not pay the Maintenance Fee by the Due Date the Software will cease to operate 30 days after the Due Date and this agreement will terminate.
12.2Termination for breach or insolvency
DesignBais may terminate all or part of this agreement by giving notice to the Licensee:
(a) if the Licensee breaches any provision of this agreement and fails to rectify the breach within [7] days after receiving notice requiring it to do so; or
(b) if:
(i) the Licensee disposes of the whole or any part of its assets, operations or business other than in the normal course of business;
(ii) any step is taken by the Licensee to enter into any arrangement between it and its creditors;
(iii) the Licensee ceases to be able to pay its debts as they become due;
(iv) the Licensee ceases to carry on business;
(v) any step is taken by a mortgagee to enter into possession or dispose of the whole or any part of the Licensee's assets or business;
(vi) any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other like person of the whole or any part of the Licensee's assets or business; or
(vii) there is any change in the direct or indirect beneficial ownership or control of the Licensee.
12.3Obligations on termination
If this agreement is terminated in accordance with clause 12.1 or 12.2, the Licensee must:
(a) immediately cease using the Software and cause all End Users to cease using Runtime;
(b) immediately cease marketing and promoting the Software and using its name and any trade marks of DesignBais;
(c) either destroy all originals and copies of the Software or return them to DesignBais together with any relevant documentation;
(d) execute all documents necessary, and cause End Users to execute all documents necessary, to novate the Sub-licences to DesignBais; and
(e) pay to DesignBais all amounts owing under this agreement to the date of termination without deduction or set off.
13.1Escrow
If requested to do so by the Licensee, DesignBais will, at the Licensee's expense, enter into an escrow arrangement for the Software with an escrow agent, and on terms, acceptable to DesignBais and the Licensee.
13.2Survival
Any indemnity or any obligation of confidence under this agreement is independent and survives termination of this agreement. Any other term by its nature intended to survive termination of this agreement survives termination of this agreement.
13.3Assignment
The Licensee may not assign, transfer, sell or otherwise dispose of its rights under this agreement without the prior written consent of DesignBais.
13.4Waiver
A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
13.5Relationship
Except where this agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.
13.6Governing law and jurisdiction
This agreement is governed by the law of New South Wales and each party irrevocably and unconditionally submits to the non‑exclusive jurisdiction of the courts of New South Wales.