Software Licence Agreement
(“Click Through” version)
BACKGROUND:
A. BEYONDCRON PTY LTD (ACN 653 190 151) (“BeyondCron”) is the exclusive rights holder of the Software.
B. The Client intends to obtain a licence to the Software from BeyondCron.
C. BeyondCron has agreed to grant to the Client a licence to use the Software on the terms and conditions set out in this Agreement.
OPERATIVE PROVISIONS:
1. Definitions and interpretation
In this Agreement, unless the context indicates the contrary:
Commencement Date means the date that the Client has accepted this agreement online on the Website.
Confidential Information means any information in any form relating to any current or proposed projects (including any ideas, concepts in relation to the same) of a party, its staff, personnel, contractors or clients or any marketing, finance, legal or business affairs, information or plans of a party or that of any related entities but does not include any information that is widely available to and known by the public (other than as a result of a breach of confidentiality by, or involving, a party).
Defects(s) means a material failure of the Software to function as intended on a reasonable basis.
Device(s) means a hardware system with an internal storage capable of running the Software as owned by, or exclusively operated under authority granted to, the Client.
Documentation means any and all proprietary documentation made available to the Client by BeyondCron for use with the Software, including any documentation available online on the Website or related official support forum.
Fees means the licence and support fees agreed on the Website by the Client.
GST has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth), or any other similar tax.
Indirect Losses means any loss, damage, expense or costs related to loss of data, loss or reputation, loss of goodwill, interruption of business or any consequential, indirect, incidental damages or so called “pure economic loss” including where the same was contemplated or considered foreseeable by a party at the time of entering into this agreement.
Intellectual Property Rights means all intellectual property rights, including all copyright, patents, trade marks, design rights, trade secrets, domain names, know how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application.
Support Services means those support services provided by BeyondCron pursuant to clause 9(a) via email to support@beyondcron.com.
Software means the software owned by BeyondCron and known as “BeyondCron”, including:
(a) a computer software application consisting of a user-friendly interface to schedule and execute operating system commands as further specified and described on the Website and in the Documentation; and
(b) all updates and upgrades developed in relation to the above at any subsequent point,
and any reference in this agreement to the Software means any or all of them.
Moral Rights means moral rights created by the Copyright Act 1968 (Cth), which include the right of integrity of authorship (that is, not to have a work subjected to derogatory treatment), the right of attribution of authorship of a work, and the right not to have authorship of a work falsely attributed, and any similar rights capable of protection under the laws of any other jurisdiction.
Term means the licence period agreed to by the Client on the Website. Territory means the World.
Website means website/s hosted within the domain beyondcron.com.
Unless the context requires otherwise:
(a) a reference to a person includes a corporation or any other legal entity;
(b) the singular includes the plural and vice versa;
(c) headings are for convenience and do not form part of this Agreement or otherwise affect the interpretation of this Agreement;
(d) the term “includes” (or any similar term) means “includes without limitation”; and
(e) a reference to any statute includes references to any subsequently amended, consolidated or re-enacted version of that statute and all delegated legislation or other statutory instruments made under it.
2. Grant of licence
With effect from the date of this agreement:
(a) BeyondCron grants the Client a non-exclusive, irrevocable, worldwide, non-transferable licence to use the Software in the Territory during the Term subject to and following the terms and conditions set out in this Agreement.
(b) Under this licence, BeyondCron grants to the Client the right to download and install the Software on its Devices.
(c) The Client must not:
(i) use the Software for any purpose or in any manner other than as set out in paragraph (b);
(ii) use the Software in any way that could damage the reputation of the BeyondCron or the goodwill or other rights associated with the Software; and
(iii) permit any third party to use or access the Software by any means other than as set out in paragraph (b);
3. License Use Restrictions
(a) Client agrees that:
(i) its use of the Support Services and the Software shall comply with all applicable laws and regulations, including but not limited to copyright, trademark, export control laws and Privacy Laws; and
(ii) it shall fully comply with any security protocols and procedures included in the Software, including without limitation in regards to passwords, security keys, authentication codes and logging or anti-piracy systems;
(b) Without limiting the generality of clause 3(a), Client shall not, nor shall it permit or assist a third party to:
(i) abuse or fraudulently use or access the Support Services;
(ii) sub-licence the Software, or otherwise make available all or any part of the Software to any person other than the Client’s authorised personnel and contractors;
(iii) reverse engineer, disassemble or decompile the Software or attempt to do so;
(iv) grant any security interest over its rights under this Agreement.
(v) use, copy, reproduce, adapt, modify or exploit the Software other than in strict accordance with this Agreement;
(vi) use, install and configure the Software except in a manner which complies with any documentation, training and directions as provided, advised and delivered by BeyondCron; or
(vii) remove any notices relating to BeyondCron’s rights or ownership of (or that of any of its third party licensors) Intellectual Property Rights in respect of the same.
4. Intellectual Property Rights
(a) Nothing in this Agreement constitutes a transfer of any Intellectual Property Rights.
(b) The Client acknowledges and agrees:
(i) that BeyondCron owns all Intellectual Property Rights in the Software; and
(ii) it will not directly or indirectly do anything that would or might invalidate or put in dispute BeyondCron’s title in the Software.
(c) If any person makes any claim alleging that the Software (or use the Software) in whole or in part infringes any Intellectual Property Rights or Moral Rights of any person, the Client must:
(i) promptly notify BeyondCron in writing;
(ii) not make any admissions or take any action in relation to the claim without BeyondCron’s written consent;
(iii) permit BeyondCron control over any and all investigations, negotiations, settlement and dispute resolution proceedings relating to the claim; and
(iv) cooperate with, assist and act at all times in accordance with the reasonable instructions of BeyondCron in relation to the claim and any consequent investigations, negotiations, settlement and dispute resolution proceedings.
5. Payment
The Client agrees that the Fees are payable in advance for the rights and Support Services provided or to be provided by the Licensor under this Agreement and are not subject to refund by BeyondCron or offset against any other fees or sums payable by the Client to BeyondCron under any circumstances.
6. Taxes
(a) Subject to clause 6(b), all amounts payable by Client’s resident in Australia under this Agreement are expressed inclusive of GST (if applicable).
(b) In relation to the payments by Clients outside of Australia, the Licence Fee is exclusive of any applicable taxes or duties including, but not limited to, sales taxes, value added taxes, goods and services taxes, consumption taxes, or any other fee that is imposed in respect of Client’s use and enjoyment of or the supply, provision of the Software or any related services by BeyondCron in any jurisdiction worldwide. Notwithstanding the foregoing, Client is responsible for, and will indemnify BeyondCron in respect of any taxes, including any withholding taxes, directly related and applicable to the supply of the Software and/or related services and/or the payment of the Fees by the Client to BeyondCron on a worldwide basis.
7. Privacy
BeyondCron takes the Client’s privacy seriously and any information provided through the purchase and use of the Software is subject to BeyondCron’s Privacy Policy, which is available on the Website.
8. Audit
The Client must permit BeyondCron (or its nominated auditor) to audit the records and premises of the Client at any time during the Term and for 3 years following the end of the Term, on at least 5 days written notice, for the purpose of confirming the Client’s compliance with this Agreement.
9. Support Service
(a) During the Term, BeyondCron agrees to provide the following support services:
(i) provide support in relation to installation, configuration and use of the Software;
(ii) assist the Client in case any Defect occurs in the Software;
(iii) investigate and determine the root cause of each Defect and design and implement a solution to address and rectify the Defect;
(iv) provide any and all bug fixes as and when they become available; and
(v) provide any updated or new release version of the Software.
(b) Defects or Support Services which occur or are required due to:
(i) the misuse of the Software by the Client, its personnel or contractors;
(ii) failure or incompatibility or changed configuration of the Client’s Devices or systems;
(iii) failure of the Client to follow, adhere or abide by any Documentation; or
(iv) any other reason beyond the reasonable control of BeyondCron, will be remedied by BeyondCron at its standard commercial consulting rates and subject to availability of resources on a reasonable basis.
10. Warranties and Representations
(a) Each party warrants to the other that it has the right, valid authority and ability to enter into this Agreement and that this Agreement will be and remain legally binding on it
(b) Notwithstanding any term or provision to the contrary, the parties acknowledge and agree that the Software is not warranted or represented by BeyondCron as being free of Defects or otherwise operating “error free” or without interruption under all conditions.
11. Disclaimer and Limitation of Liability
(a) Subject to any conditions, terms implied by or rights the Client may have under the Australian Consumer Law, the Support Services and the Software are provided “as is” and “as provided” and BeyondCron makes no representation or warranty that Support Services and the Software are or will be:
(i) of satisfactory quality;
(ii) fit for a particular purpose; or
(iii) available or accessible, continuously without interruption or without error.
(b) Notwithstanding any clause to the contrary, the Client expressly agrees that BeyondCron excludes and shall have no liability for Indirect Losses.
(c) BeyondCron’s total aggregate liability for all claims relating the Software or Support Services or arising under this Agreement is limited to the Fees paid pursuant to this Agreement.
(d) Either party’s liability for any claim relating to this Agreement will be reduced to the extent to which the other party contributed to the damage arising from the claim.
12. Termination
A party may terminate this Agreement by written notice to the other if any of the following events has occurred in respect of the other party:
(a) a material breach of this Agreement which:
(i) is not remediable; or
(ii) if capable of remedy, is not remedied by the other party within 14 days of written notice by the non-breaching party;
(b) an insolvency event occurs, other than an internal reconstruction with notice to the other party.
13. Consequences of termination
If this Agreement is terminated or expires for any reason, then, in addition and without prejudice to any other rights or remedies available:
(a) the parties are immediately released from their obligations under the Agreement except those obligations in clauses 3, 4, 7, 8, 10, 11, this clause 13, 14 and 15 and any other obligations that, by their nature, survive termination;
(b) each party retains the claims it has against the other;
(c) the Client’s right to use the Software immediately ceases and the licences granted under this Agreement terminate; and
(d) the Client must immediately pay all outstanding Fees due and payable as at the date of termination.
14. Confidentiality
Each party agrees and undertakes to:
(a) keep all Confidential Information strictly confidential;
(b) not disclose or permit any disclosure of the Confidential Information to any third party without the prior written consent of the other party except for any disclosure that is required by law;
(c) not to use or reproduce the Confidential Information for any purpose except as strictly necessary to perform and provide the Support Services under this Agreement; and
(d) maintain proper and secure custody of all Confidential Information and take all necessary precautions to prevent unauthorized disclosure, access or copying of the Confidential Information by third parties.
15. General
(a) Variation
No variation of this Agreement will be effective unless it is in writing and signed by the parties (or their authorised representatives).
(b) Severability
A term or part of a term of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining terms or parts of the term of this Agreement continue in force.
(c) Governing law and jurisdiction
This Agreement is governed by the law of the State of Victoria, Australia and each party irrevocably and unconditionally submits to the non exclusive jurisdiction of the courts of Victoria, Australia.