OPERATIVE PROVISIONS
1. Definitions and interpretation
1.1 Definitions
In this Agreement, unless the context indicates the contrary:
“Agreement” means this agreement, including the Schedule;
“Business” means the business operated by the Customer predominately
involving the operation and commercialisation of cutting equipment and/or any form of sheet
metal, metal fabrication or general engineering in the sale of steel and other metals to
customers;
“Commencement Date” means the date so specified in of the Schedule;
“Confidential Information” means all information provided by one party to
the other in connection with this Agreement where such information is identified as
confidential at the time of its disclosure or ought reasonably to be considered confidential
based on its content, nature or the manner of its disclosure, but excluding:
(a) information that enters the public domain or is disclosed to a party by a third party,
other than through a breach of this Agreement, and
(b) information developed independently by a party;
“Designated Equipment” means the equipment described in the Schedule;
“Documentation” means any and all proprietary documentation made available
to the Customer by the Licensor for use with the Software, including any documentation
available online;
“End Users” means individuals employed or engaged by the Customer in the
operation of the Business;
“End User Account” means an account provided to End Users for the purpose of
enabling such End Users to licence and use the Software subject to the terms of this
Agreement;
“Force Majeure Event” means any event beyond the control of the relevant
party, except for any obligation by the Customer to pay money to The Licensor;
“GST” has the meaning given in A New Tax System (Goods and Services Tax) Act
1999 (Cth), or any other similar tax;
“Intellectual Property Rights” means all intellectual property rights,
including all copyright, patents, trademarks, 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;
“Moral Rights” has the meaning given under the Copyright Act 1968 (Cth) and
includes any similar rights existing in other countries;
“Software” means the software described in the Schedule, owned by the
Licensor, used in the Business and delivered to the Customer by the Licensor pursuant to
this Agreement, as may be amended, developed or re-released from time to time.
1.2 Interpretation
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
2.1 Grant
Subject to clause 6, the Licensor grants to the Customer a non-exclusive, worldwide licence
to use the Software and the Documentation:
(a) solely in relation to the operation of the Business;
(b) at the premises owned or occupied by the Customer;
(c) for a maximum number of End User Accounts specified in the Schedule;
(d) on the Designated Equipment; and
(e) subject to and in accordance with the terms and conditions set out in this Agreement.
2.2 Consideration
The licence granted in this Agreement is granted in consideration of the Customer agreeing to
allow the Licensor access to its premises or to the Software by remote means for the
purposes of testing and evaluating the Software in a live environment to enable the Licensor
to make improvements to the functionality of the Software from time to time.
2.3 Number of Users
(a) Each End User must have an End User Account to access the Software.
End-User accounts are all accounts with admin, manager and operator rights.
(b) The number of available End User Accounts available to the Customer pursuant to this
Agreement is specified in the Schedule.
(c) Each End User of the Software is required to have a user name and password to access the
Software and to accept the terms of this Agreement and such other “click and accept” terms
within the Software.
(d) The Customer may specify one or more employees who will have the rights to administer the
End User Accounts (the “Administrator”).
(e) The Administrator will be given a confidential username and password and may add End User
Accounts.
(f) The Customer is responsible for:
(i) maintaining the confidentiality of the username and password relating to the
Administrator;
(ii) designating those of its employees who are authorised to be Administrators; and
(iii) ensuring that all activities undertaken by the Administrator and the End Users comply
with this Agreement.
(iiii) implementing and maintaining backup and recovery procedures and methods
2.4 Restrictions
The Customer must not:
(a) use the Software for any purpose or in any manner other than as set out in this
Agreement;
(b) use the Software in any way that could damage the reputation of the Licensor or the
goodwill or other rights associated with the Software;
(c) permit any third party to use the Software other than as set out in this clause;
(d) except as expressly permitted by this Agreement, and except to the extent that applicable
laws, including the Copyright Act 1968 (Cth), prevent the Licensor restraining the Customer
from doing so:
(i) reproduce, make error corrections to or otherwise modify or adapt the Software or the
Documentation or create any derivative works based upon the Software or the Documentation;
(ii) decompile, disassemble or otherwise reverse engineer the Software or permit any third
party to do so; or
(e) modify or remove any copyright or proprietary notices on the Software or the
Documentation.
2.5 Equipment
This Agreement allows the Customer to install and use the one copy of the Software on the
Designated Equipment or such replacement equipment as authorised by the Licensor for the
Onsite version.
2.6 Intellectual Property Rights
(a) Nothing in this Agreement constitutes a transfer of any Intellectual Property Rights in
the Software or the Documentation.
(b) The Customer:
(i) acknowledges that the Licensor owns all Intellectual Property Rights in the Software; and
(ii) will not directly or indirectly do anything that would or might invalidate or put in
dispute the Licensor’s title in the Software; and
(iii) to the extent that it owns or has any interest in the Intellectual Property Rights in
the Software, hereby assigns such rights to the Licensor.
(c) If any person makes any claim alleging that any of the Software (or use of the Software)
infringes any Intellectual Property Rights or Moral Rights of any person, the Customer must:
(i) promptly notify the Licensor in writing;
(ii) not make any admissions or take any action in relation to the claim without the
Licensor’s written consent;
(iii) permit the Licensor to control 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 the Licensor, in relation to the claim and any consequent investigations,
negotiations, settlement and dispute resolution proceedings.
3. SOFTWARE UPGRADES
(a) The Licensor may from time to time provide revisions and updates to the Software to the
Customer (“Maintenance Updates”) where the Licensor makes such updates generally available
to its other customers.
(b) Maintenance Updates will be provided free of charge for 12 months from purchase date. All
other future upgrades will be made available at published prices. The Licensor may, at its
discretion at then standard hourly rates, charge a fee to the Customer for specific
improvements or development requested by the Customer.
(c) The Licensor reserves the right at any time not to release or to discontinue release of
the Software and to alter prices, features, specifications, capabilities, functions,
licensing terms, release dates, general availability or other characteristics of the
Software.
(d) The Licensor does not provide any implementation, training, support, integration,
installation or other services in relation to the Software pursuant to this Agreement. All
such request will be dealt with on a case by case basis.
(e) The Licensor will only provide support for current versions of the Software. Clients with
expired maintenance will need to buy into the maintenance and update to the latest version
before support of any kind can be provided.
4. GOODS AND SERVICES TAX
4.1 All amounts are GST exclusive amounts
All amounts expressed or described in this Agreement are GST exclusive amounts unless the
contrary intention appears. International customers are exempt from GST.
4.2 All amounts to be increased for any GST
If any GST (within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 as
amended from time to time, “GST”) is payable by any party (“Supplier”) in respect of the
supply of any goods, services, real property or any other things to another party
(“Recipient”), then the amount expressed or described in this Agreement (“Original Amount”)
is to be increased so that the Supplier receives an amount (“Increased Amount”) which, after
subtracting the GST liability of the Supplier on that Increased Amount, results in the
Supplier retaining the Original Amount after payment of that GST liability.
4.3 Supplier to assist Recipient
The Supplier will do all things reasonably available to it to assist the Recipient to claim
on a timely basis any input tax credits (if any) the Recipient may be entitled to claim for
any goods, services, or rights granted by or acquired from the Supplier. This includes the
Supplier maintaining its registered status for GST purposes, and issuing tax invoices for
supplies made under this Agreement on a timely basis as reasonably requested by the
Recipient.
5. WARRANTIES AND Liability
5.1 Warranties
(a) The Licensor warrants to the Customer that it has the right to grant the licence of the
Software contemplated by clause 2.
(b) Each party warrants to the other that it has the right and ability to enter into this
Agreement and that this Agreement will be legally binding on it.
5.2 Liability
(a) The Software is provided “as is”. All sales outside of the 30 days period are final.
(b) To the full extent permitted by law, the Licensor excludes all liability in respect of
loss of data, interruption of business or any consequential or incidental damages in
relation to the Customers use of the Software.
(c) To the full extent permitted by law, the Licensor excludes all representations,
warranties or terms (whether express or implied) other than those expressly set out in this
Agreement.
(d) The Licensor’s total aggregate liability for all claims relating to this Agreement is
limited to the fees paid under this Agreement by the Customer.
(e) 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.
(f) This Agreement is to be read subject to any legislation, which prohibits or restricts the
exclusion, restriction or modification of any implied warranties, conditions or obligations.
If such legislation applies, to the extent possible, the Licensor limits its liability in
respect of any claim to, at the Licensor’s option:
(i) in the case of goods:
A. the replacement of the goods or the supply of equivalent goods;
B. the repair of the goods;
C. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
D. the payment of having the goods repaired, and
(ii) in the case of services:
A. the supply of the services again; or
B. the payment of the cost of having the services supplied again.
6. Termination
(a) The Licensor may terminate this Agreement without notice to the Customer if the Customer:
(i) commits a material breach of this Agreement which is not remediable or, if capable of
remedy, where the Customer fails to remedy the breach within 14 days of written notice from
the Licensor;
(ii) has a receiver, manager, receiver and manager, liquidator, provisional liquidator, an
administrator appointed to it, enters into a scheme of arrangement with its creditors or
becomes, in the reasonable opinion of the Licensor, incapable of paying its debts as and
when those debts become due and payable.
(b) If this Agreement is terminated or expires for any reason, then, in addition, and without
prejudice to any other rights or remedies available:
(i) the parties are immediately released from their obligations under the Agreement except
for those obligations in clause 7 and any other obligations that, by their nature, survive
termination;
(ii) each party retains the claims it has against the other;
(iii) the Customer’s right to use the Software immediately ceases and the licence granted
under this Agreement terminates;
(iv) the Customer must immediately remove all Software from any system or computer;
(v) at the Licensor’s election, return or destroy all copies of the Software and the
Documentation, within 24 hours of receiving a written direction from the Licensor to so deal
with the Software and/or the Documentation.
7. Confidentiality
(a) A party must not, without the prior written consent of the other, use or disclose the
other party’s Confidential Information unless expressly permitted by this Agreement or
required to do so by law or any regulatory authority.
(b) A party may:
(i) use the Confidential Information of the other party solely for the purposes of complying
with its obligations and exercising its rights under this Agreement; and
(ii) disclose the Confidential Information to its personnel or advisers to the extent
necessary for them to know the information for purposes related to this Agreement, but only
if reasonable steps are taken to ensure that the confidentiality of the information is
retained.
(c) Each party must implement and maintain effective security measures to prevent
unauthorised use and disclosure of the other party’s Confidential Information whilst it is
in the receiving party’s possession or control.
(d) Each party must return, or at the other party’s option destroy, all Confidential
Information of the disclosing party in the receiving party’s possession or control, on the
earlier of The Licensor’s request or on termination of this Agreement for any reason.
8. General
(a) The Customer must audit utilisation of the Software once a quarter using tools provided
by the Licensor. No alterations may be made to the measurement logs generated by these
tools. The Customer must give the Licensor a copy of each set of measurement logs. If the
Customer does not carry out any audit as required by this clause, the Licensor may undertake
that audit and charge a fee. The Customer will ensure that all relevant persons co-operate
with the Licensor so that all audits are conducted efficiently and effectively.
(b) Nothing in this Agreement will limit the Licensor’s software development activities,
whether related to the Software or otherwise, in any way.
(c) The Customer shall pay all legal and other costs incurred by the Licensor as a result of
or in connection with any breach of this Agreement by the Customer or the termination of
this Agreement by the Licensor.
(d) The Customer is not entitled to assign its rights or obligations under this Agreement
without the prior written consent of the Licensor, which consent may be given or withheld,
or given on conditions, in the absolute discretion of the Licensor. The Licensor may at any
time assign or novate its rights and obligations under this Agreement without the Customer’s
consent.
(e) This Agreement is governed by and construed in accordance with the laws of Queensland.
Actions, suits or proceedings relating in any way to this Agreement or documents or dealings
contemplated by it, maybe instituted, heard and determined in a court of competent
jurisdiction in Queensland.
(f) A provision of or a right under this Agreement may not be waived or varied except in
writing signed by the person to be bound.
(g) Each party must at its own expense do everything reasonably necessary to give full effect
to this Agreement and the events contemplated by it.
(h) A party will not be responsible for a failure to comply with its obligations under this
Agreement to the extent that failure is caused by a Force Majeure Event, provided that the
party keeps the other closely informed in such circumstances and uses reasonable endeavours
to rectify the situation.
(i) Without limiting any other right to terminate under this Agreement, if a Force Majeure
Event affects a party’s performance under this Agreement for more than thirty (30)
consecutive days, the other party may immediately terminate this Agreement by written notice
(j) If a provision of this Agreement is invalid or unenforceable it is to be read down or
severed to the extent necessary without affecting the validity or enforceability of the
remaining provisions.
9. LICENSE FEES
a. RanFab server license. Each installation of the Software will be
charged on a per-user once-off fee according to the schedule valid at the time of
purchase and published on idronic.com.The Customer is obliged to purchase the sufficient
named users as described in this licence. All upgrades are free for 12 months.
Customisation work is possible (charged on a case by case basis) including modifying
template documents. All sales are final and no refund can be requested.
Named User Licenses. Each employee of the organization where the
Software is installed or used, regardless of whether concurrently or at different times
with other users of Applications and have an access level equal or better the admin,
manager or operator, must have a separate Named User License. You are responsible for
purchasing a sufficient number of Named User Licenses. If the organization requires
additional Named User Licenses at a later time, you can contact Idronic Pty Ltd
and subscription or licence upgrades can be organised.
