END USER SOFTWARE LICENSE AGREEMENT FOR “Flat Rate NOW” (Software)
You must read these terms and conditions of use and agree to them before gaining access to the Software.
Once you click I agree, you accept the below terms and conditions and there is a binding agreement between you, the User and NICE.COM.AU PROPRIETARY LIMITED ACN 089 247 236 (we, us or Licensor) in relation to the use of the Software.
By clicking I agree you are purchasing either a single license or the number of licences you have ordered for the Software and you consent to be bound by the terms and conditions set out below.
If you are not willing to be bound by this agreement and you do not agree to all its terms and conditions, then do not purchase or install this product.
Copying part or the whole of the Software or reverse engineering part or the whole of the Software except as permitted by this license agreement or by law is copyright infringement under the Copyright Act 1968 (Cth).
1. GRANT OF LICENSE AND PURPOSE.
The Licensor grants you a nonexclusive, non-transferable personal license to use the Software subject to the terms and conditions of his agreement and the payment of the fees.
When you register to use the Software, whether on a single user basis or as multiple users, you will receive a login and a password or you will be asked to nominate a login and a password for the first user. These are personal login details and under no circumstances should you give or share these with anyone else.
When you register to use the Software for multiple users, except for the initial login and password details that we set up for your nominated user, we will allow and enable you to create login and password details for each of the users without the need to advise us of those details. Once the login and password details are designated and allocated to the various users, these are personal login details and therefore they must not be shared with other people. We will also enable you to amend and vary the details of your authorised users in the event it becomes necessary.
If you wish to add a user or users at any time throughout the year after the licence agreement had commenced, you will need to advise us of the number of additional users you wish to add. Following your advice, we will enable you to register these additional users on the Software by allocating login and password details to them. We will then charge you a pro rata annual charge for each additional user until the next anniversary of your licence when the annual fee (based on the number of users) will apply. The purpose for which you receive access to the Software is as follows;
a. to access the professional services and job descriptions set out in the Software;
b. to access the data provided in the Software for the purpose of generating design for prospective plumbing jobs, quote for these jobs and subsequently issuing invoices with respect to that job.
You must not:
a. Copy the Software except as permitted by this license.
b. Reverse-engineer, decompile or disassemble the Software.
c. Distribute, rent, loan, lease, sell, sublicense or otherwise transfer all or part of the Software, access codes, or any rights granted hereunder to any other person without our prior written consent.
d. Remove, alter or obscure any proprietary notices, labels or marks from the Software.
e. Modify, translate, adapt, arrange or create derivative works based on the Software for any purpose.
f. Utilise any equipment, device, software or other means designed to circumvent or remove any form of copyright protection used by the Software.
g. Use the Software for any purpose (commercial or otherwise) other than the purpose for which the Software license was granted to you (see clause 2).
By agreeing to this license agreement you agree;
a. that subject to the early termination promotional campaign as set out below, this license agreement shall be for a fixed term of 12 months from the date you agreed to be bound;
b. to pay us the license fee you were quoted per calendar month per user, for the term; and
(c) that subject to the early termination promotional campaign as set out below, unless you terminate this license agreement by providing us with notice of such termination prior to each anniversary of the agreement, the license agreement shall be renewed automatically for another year as a fixed term on each anniversary of the agreement
Subject to the early termination promotional campaign as set out below, If you terminate the license agreement before its anniversary we reserve the right to charge you a pro rata annual fee (from the date of termination to the anniversary date) or such lesser amount as we deem reasonable for the early cancellation of the agreement.
Early Termination Promotional Campaign
As a promotional campaign and to reward you as one of our first customers to subscribe to the Software, for the first 12 months from the date you subscribe to the Software, you may terminate this Agreement at any time and not be obligated to pay the remainder annual subscription fee per user per month.
The following conditions apply to the Early Termination Promotional Campaign:
(a) it only applies for the first 12 months from the date you subscribe to use the Software;
(b) any monthly fees paid with respect to existing user prior to termination are not refundable;
(c) early termination of this Agreement does not vary or limit your obligations and restrictions (see for example clause 2) as set out in this Agreement in regards to the Software or our Intellectual Property (see clause 5).
Quote and Fees
You acknowledge that when you have made an application to use the Software, you were provided with a quote in respect of the licence fee which is charges per month per user. Annual subscription fees that are paid in advance are discounted. No other discounts apply to the subscription fees unless we publish special promotions.
Any copyright notice and ownership information about the Software or the Licensor must remain intact in any file exported from the Software.
4. UPGRADES AND MAINTENANCE.
You will be entitled to free minor upgrades, when and if they become available.
If the Software malfunctions, we will attend to servicing the Software at our cost provided it is not shown that the malfunction was as a result of any act or omission on your behalf. If we can demonstrate that you caused the Software to malfunction, we reserve the right to charge you for the repairs.
5. INTELLECTUAL PROPERTY.
Title and any Intellectual Property (including copyright or design) in the Software remains with us and this license agreement does not convey any title or any right to use the Software other than as stated herein.
For the purpose of this agreement, Intellectual Property means all inventions, patent, patent applications, trademarks, designs, copyright (including copyrights in any computer software or hardware of any words associated with such software or hardware), technical know-how and commercially sensitive information which is provided pursuant to this agreement or any other information generated as a consequence of this agreement.
6. NO WARRANTY.
The Software is provided to you “as is,” and you acknowledge that it may contain errors. We (the Licensor) disclaim any warranty or liability obligations to you of any kind. We do not provide any warranties, express, implied, statutory, or in any communication with you. Unless otherwise expressed in any trading legislation (State or Federal) we expressly disclaim any warranty including the implied warranty of merchantability or fitness for a particular purpose. We do not warrant that the operation of the Software or that the “Software will be uninterrupted or error free. If by law the above exclusion of warranty is disallowed, this will not invalidate this provision as a whole but this clause 6 shall be read as if the disallowed provisions are severed from the clause.
7. LIMITATION OF LIABILITY.
Subject to the limitations provided by law, In no event will we be liable for any loss or damages of any kind, including loss of data, lost profits, cost of cover or other special, incidental, consequential or indirect damages arising out of the use or inability to use the Software, however caused and on any theory of liability. This limitation will apply even if we have been advised of the possibility of such loss or damage. You acknowledge that the license fee reflects this allocation of risk.
In the event liability is imposed on use with respect to the use of the Software, the maximum liability that may be imposed on us is to refund the annual fee or to resupply the software.
If any provision of this license agreement is found to be invalid or otherwise unenforceable, that provision shall be severed from the agreement and the further conditions of this license agreement will remain enforceable by the parties.
You may only terminate this agreement in accordance with the termination provisions set out in clause 3. Unless provided otherwise, annual or monthly subscription fees are not refundable.
If we suspect that you breached this agreement, we may give you notice to remedy the breach. If you fail to remedy the breach or we are of the view that your action are adverse to our Intellectual Property interest in the Software, we may, at our discretion, terminate this agreement by blocking your access to the Software.
You acknowledge and agree that information supplied to you as part of the access permission to the Software is or may be confidential to us. This includes the design of the Software and its look and feel. Except as required under law or court or administrative order, in consideration of the disclosure of this confidential information, you agree not to disclose any of the confidential information to any person, whether an employee, officer, representative, subcontractor, consultant or adviser other than such persons who have strict need to know and is made aware of the confidential nature of the information.
Personal Information and Retention of Information
You acknowledge that as part of using the Software, you may upload information onto our systems. Information uploaded onto our system may contain personal information of customers. You warrant and represent that you have the necessary approval and authority to collect, disclose and handle such personal information.
We reserve the right to retain certain information that was uploaded onto our system. We will not retain any personal information of customers. We reserve the right to retain information about specific services undertaken or quoted by Users including, the nature of the work performed, details of any materials used, details of pricing of any materials used, the address for service including street address, suburb and post code.
A notice or direction given under this agreement shall be in writing and shall be served on the party at the address indicated in the application form for you and on our website for our address.
Notice must be sent by mail, email or other agreed communication such as facsimile. Notice is deemed received 5 days if sent by post, same day if send by email or facsimile if received before 5 pm Monday to Friday.
This agreement constitutes the entire agreement between the parties relating to the subject matter of this Agreement and when commencing on your agreement, supersedes all prior agreements between them relating to such subject. We may change the user license agreement by giving you notice provided we cannot detract from your existing rights under this agreement.
Variations and Amendments
We may vary this Agreement from time to time and at any time subject to giving you notice of such amendments. Any amendments will not apply retrospectively. If you disagree with any amendment to this Agreement, you may terminate this Agreement by giving us notice.
This Agreement shall be governed by the laws of the State of New South Wales and the parties submit to the non-exclusive jurisdiction of the courts of that state and any courts taking appeal from them.
Personal license not assignable
This agreement is personal to you the licensee. You must not assign, transfer, mortgage, charge, licence, sub-licence or part with possession of any of its rights, duties or obligations pursuant to this agreement.
This agreement may be assigned by us as licensor to a third party following the provision of notice to you.
In the event a dispute arises concerning any issue pursuant to this agreement, the disputing parties shall work together, diligently and in good faith, to investigate and resolve the alleged issue or dispute.
In the event that any dispute is not resolved in accordance with the process set out above, the disputing parties agree to submit the dispute to conciliation, administered by the Australian Commercial Disputes Centre Limited (“ACDC”) in Sydney conducted and held in accordance with the Conciliation Rules of ACDC in force at the date of this agreement. If ACDC does not operate in Sydney then the parties will submit to an alternative mediation/dispute resolution process in Melbourne.
Notwithstanding any other provision of this agreement, the amounts payable to the Licensor under this agreement and under any other agreement entered into by the parties in respect of the Software, are exclusive of GST. You must pay us an amount equal to any GST as prescribe by the GST law (A New Tax System (Good and Services Tax) Act 1999.