SOFTWARE LICENCE AGREEMENT
BETWEEN:
Infestation Tracking Systems Pty Ltd (ACN 163 630 199) of 6 Tobias Place, Kilmore VIC 3764 ("Licensor"); and
The Licensee specified in Item 2 of Schedule 1.
RECITALS:
A. The Licensor owns the Licenced Software.
B. The Licensor has agreed to grant to the Licensee a non-exclusive licence to use the Licenced Software and its associated documentation on the terms and conditions set out in the Agreement.
OPERATIVE PROVISIONS:
1. Definitions and interpretation
In this Agreement, unless the context indicates the contrary:
Commencement Date means the date specified in Item 7 of Schedule 1.
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 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.
Documentation means any and all proprietary documentation made available to the Licensee by the Licensor for use with the Licensed Software, including any documentation available online.
Fees means the fees calculated in accordance with Item 8 Schedule 1.
Force Majeure Event means any event beyond the control of the relevant party.
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, 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.
Licensed Software means the business management software platform designed for pest professionals and other appointment-based sectors owned by the Licensor and delivered to the Licensee by the Licensor pursuant to this Agreement and more fully described in Item 3 of Schedule 1.
Licensed Software Specification Requirements means the specification requirements required to operate the Licenced Software as detailed in Item 9 of Schedule 1 and as amended from time to time.
Moral Rights has the meaning given under the Copyright Act 1968 (Cth) and includes any similar rights existing in other countries.
Subscription Package means the subscription package selected by the Licensee described in Item 5 of Schedule 1.
Subscription Term means the subscription term selected by the Licensee for which the Licensor will provide the Licensed Software to the Licensee as specified in Item 6 of Schedule 1.
Website means the website specified in Item 4 of Schedule 1.
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, Acceptance & Conditions of Licence
2.1 The Licensor grants to the Licensee a non-exclusive, world-wide, non-transferable licence to use the Licensed Software and the Documentation during the Term solely in connection with the operation of the Website, subject to and in accordance with the terms and conditions set out in this Agreement.
2.2 The Licensee may permit end users of the Website to use the Licensed Software as part of the normal process of using the Website.
2.3 By clicking on the "I accept the terms and conditions of this Software Licence Agreement" button you are indicating to the Licensor: (a) your acceptance of this Agreement and agree to be legally bound by it, and (b) the party accepting the terms of the Agreement has the express authority to bind the Licensee to the Agreement.
2.4 The Licensee must not: (a) use the Licensed Software for any purpose or in any manner other than as set out in clause 2.1; (b) use the Licensed Software in any way that could damage the reputation of the Licensor or the goodwill or other rights associated with the Licensed Software; (c) permit any third party to use the Licensed Software other than as set out in clause 2.2; (d) permit any person to link to any page containing any part of the Licensed Software (including via a hyperlink or RSS feed) without the Licensor's written consent; (e) except as expressly permitted by this Agreement, and except to the extent that applicable laws, including the Copyright Act 1968 (Cth), prevent Licensor restraining Licensee from doing so: (a) reproduce, make error corrections to or otherwise modify or adapt the Licensed Software or the Documentation or create any derivative works based upon the Licensed Software or the Documentation; (b) de-compile, disassemble or otherwise reverse engineer the Licensed Software or permit any third party to do so. (f) modify or remove any copyright or proprietary notices on the Licensed Software or the Documentation.
2.5 The Licensee must not modify the whole or any part of the Licenced Software or combine or incorporate the whole or any part of the Licenced Software in any other program or system without the prior consent in writing of the Licensor. As a condition of its consent, the Licensor may specify that such modifications must be effected by the Licensor or a contractor of the Licensor.
2.6 The Licensee will not create or permit to exist a security interest over the Licenced Software or Documentation or in any modifications to, or enhancements, updates or new releases of, the Licenced Software or Documentation. For the purposes of this clause, "security interest" means a security interest that is subject to the Personal Property Securities Act 2009 (Cth) or any other mortgage, pledge, lien, charge or other arrangement of any kind which in substance secures the payment of money or the performance of any obligation, or that gives a creditor priority over unsecured creditors.
3. Delivery and Specification Requirements
3.1 Subject to payment of the Fees by the Licensee, the Licensor shall make available the Licensed Software and the Documentation to the Licensee on the Commencement Date for the Subscription Term in accordance with the Subscription Package selected by the Licensee.
3.2 The Licensee must ensure that the computer equipment on which the Licensed Software is to be installed is in good, up to date working order and operating condition and meets the Licensed Software Specification Requirements.
3.3 The Licensor is not required to provide any consultancy services, support or training in respect of the Licensed Software under this Agreement.
4. Intellectual Property Rights
4.1 Nothing in this Agreement constitutes a transfer of any Intellectual Property Rights.
4.2 The Licensee: (a) acknowledges that the Licensor owns all Intellectual Property Rights in the Licensed Software; and (b) will not directly or indirectly do anything that would or might invalidate or put in dispute the Licensor's title in the Licensed Software.
4.3 If any person makes any claim alleging that any of the Licensed Software (or use of the Licensed Software) infringes any Intellectual Property Rights or Moral Rights of any person, the Licensee must: (a) promptly notify the Licensor in writing; (b) not make any admissions or take any action in relation to the claim without the Licensor's written consent; (c) permit the Licensor control over any and all investigations, negotiations, settlement and dispute resolution proceedings relating to the claim; and (d) 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.
4.4 Nothing in this agreement affects the ownership of Moral Rights in the Licensed Software.
5. Payment, Subscription & Suspension
5.1 The Licensee must pay the Licensor the Fees on a monthly basis in advance for the Subscription Term.
5.2 If the Licensee has not paid the Fees in full by the relevant date, the Licensor will be permitted to suspend provision of, and access to, the Licensed Software immediately without notice until such time that payment of the Fees is received in full by the Licensor.
6. GST
6.1 All amounts payable under this Agreement are expressed exclusive of GST.
6.2 In respect of any taxable supply, the Licensee must pay to the Licensor an additional amount equal to the prevailing GST rate, payable at the same time and in the same manner as the Fees, subject to the receipt by the Licensee of a valid tax invoice.
7. Warranties
7.1 The Licensor warrants to the Licensee that the Licensed Software will meet the description set out in Item 3 of Schedule 1.
7.2 The Licensor provides no warranty whatsoever that the Licensed Software, Documents or reports generated by the Licensed Software will comply with and/or meet the policy requirements for any insurer of the Licensee. The Licensee acknowledges and agrees that it is the Licensee's obligation to satisfy themselves that the use of the Licensed Software, Documents and any reports generated by the License Software will comply with the requirements of the Licensee's insurer. The Licensor will accept no liability whatsoever in relation to the Licensed Software, Documents or reports generated by the License Software not satisfying the requirements of a Licensee's insurer.
7.3 The Licensee warrants to the Licensor that: (a) the Licensee is entitled to use all documents, templates, forms, reports and drawings provided by the Licensee in connection with the Licensed Software and that such use will not infringe any third party’s Intellectual Property Rights, (b) the Licensee has obtained the express written consent of any third party for which the Licensee may use the intellectual property of a third party in connection with the Licensed Software (including without limitation, any insurance forms, report templates or documentation owned by third parties), and (c) if the Licensee collects any data from a customer of the Licensee and the Licensee inputs that data into the Licensed Software, that the Licensee has obtained the prior written consent of the Licensee's customer permitting the data to be de-identified and sold to independent third parties by the Licensor.
7.4 The Licensee hereby indemnifies the Licensor from and against all claims, losses, costs, expenses and disbursements of whatever nature incurred or payable by the Licensor: (a) directly or indirectly arising from a breach of clause 7.3 (including, without limitation, legal fees on a solicitor-client basis, collection agency costs, stamp duty and registration fees), and (b) as a consequence of any claim against the Licensor for infringement of a third party’s Intellectual Property Rights in connection with the provision of the Licenced Software in accordance with a document that is, supplied by, prepared under the instruction of, or prepared from sketches provided by, the Licensee.
The Licensee’s liability under this clause is unlimited.
7.5 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.
8. Liability
8.1 To the full extent permitted by law, the Licensor excludes all liability in respect of loss of data, interruption of business or any, indirect, consequential or incidental damages whatsoever.
8.2 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.
8.3 The Licensor's total aggregate liability for all claims relating to this Agreement is limited to the Fees payable under this Agreement.
8.4 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.
8.5 This Agreement is to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions, guarantees 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: (a) the supply of the services again; or (b) the payment of the cost of having the services supplied again.
9. Termination
9.1 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 is not remediable or if capable of remedy, where the other party fails to remedy within 14 days of written notice; (b) an insolvency event occurs, other than an internal reconstruction with notice to the other party; or (c) the entry or proposed entry by either party into any scheme, composition or arrangement with any of its creditors.
9.2 The Licensor may terminate this Agreement effective immediately by written notice to the Licensee if the Licensee fails to make payment of the Fees as and when they fall due.
10. Consequences of Termination
10.1 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 4, 7, 8, 10, 11, 12, and 13 and any other obligations that, by their nature, survive termination; (b) each party retains the claims it has against the other; (c) the Licensee's right to use the Licensed Software immediately ceases and the licences granted under this Agreement terminate; (d) the Licensee must immediately remove all Licensed Software from the Licensee equipment and cease using the Website; and (e) the Licensee must immediately pay all outstanding Fees.
11. Confidentiality
11.1 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.
11.2 A party may: (a) 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 (b) 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.
11.3 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.
11.4 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.
12. Notices
12.1 The parties' contact details for notices under this Agreement are as specified in Schedule 1, or as otherwise notified by one party to the other from time to time:
12.2 All notices must be in writing and can be given by: (a) hand delivery during normal business hours; (b) registered post; or (c) emailed to the address provided in Schedule 1.
12.3 A notice is deemed to be given and received: (a) if delivered in accordance with clause 12.2(a) on the next business day after the day of delivery; (b) if sent in accordance with clause 12.2(b) 4 clear business days after the day of posting; (c) if sent in accordance with clause 12.2(c) on the same business day the email is sent without error.
13. General
13.1 The Licensee must not assign, sublicence or otherwise deal in any other way with any of its rights under this Agreement without the prior written consent of the Licensor.
13.2 Nothing contained in this Agreement creates any relationship of partnership or agency between the parties.
13.3 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.
13.4 Each party must at its own expense do everything reasonably necessary to give full effect to this Agreement and the events contemplated by it.
13.5 This Agreement (and any documents executed in connection with it) is the entire Agreement of the parties about its subject matter and supersedes all other representations, arrangements or agreements. Other than as expressly set out in this Agreement, no party has relied on any representation made by or on behalf of the other.
13.6 This Agreement may be amended only by a document signed by all parties.
13.7 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.
13.8 This Agreement may be executed in counterparts which will be taken together to constitute one document.
13.9 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 endeavors to rectify the situation.
13.10 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.
13.11 All stamp duties and other government charges in relation to this Agreement must be paid by the Licensee.
13.12 The Licensee agrees to comply with the Privacy Policy (as amended from time to time) of the Licensor at all times. For avoidance of doubt, this clause survives termination of this Agreement.
13.13 This Agreement is governed by the laws of New South Wales and each party submits to the jurisdiction of the courts of Victoria.
SCHEDULE 1
Item 1
Licensor: Infestation Tracking Systems Pty Ltd (ACN 163 630 199)
Address: 6 Tobias Place Kilmore VIC 3764
Email: brad@mira.au
Contact Person: Brad Wynter
Item 2
Licensee: Subscriber
ABN/ACN: subscriber's ABN/ACN
Address: subscriber's address
Email: subscriber's email address
Contact: Person:
Item 3
Licensed Software: Pest Register and MIRA
allowing you to manage technicians, incorporate business intelligence, create reports, connect to clients via the App (Job Hub), view business analytics and insights, create schedules, search, process invoicing and receive payments all in one place.]
Item 4
Website: https://mira.au
Item 5. Subscription Package:
Commercial Package: includes:
• Client Module,
• Calendar Scheduling
• Dashboard
• Client Search
• Business Search
• Client Connect
• Reporting
• Inventory
• Invoicing & Accounting
• Business Intelligence / Analytics
Custom Package: Please contact us]
Item 6
Subscription Term: Billed Monthly
Item 7
Commencement Date: Upon subscription payment
Item 8
Fees: As per our website
Item 9
Software Licence Subscription Requirements:
[e.g. Chrome Browser version 74 or newer]