THIS AGREEMENT is made:
BETWEEN Techconnect IT Solutions Pty Ltd ABN 94 152 230 745 ("Licensor");
AND the Licensee or the entity or organisation the Licensee represents ("Licensee").
1.1 Cloud Solution means the version of the Licensed Software that is hosted by a third party and is accessed over a network;
1.2 Confidential Information means any information obtained by either party, or its employees, agents or sub-contractors concerning the other party, or the other party’s business activities (including, but not limited to, information in machine readable form) and that:
(a) is by its nature confidential;
(b) is designated by a party as confidential; or
(c) the other party knows or ought to know is confidential;
and in the case of the Licensor specifically includes the Licensed Software and the Documentation;
1.3 Documentation means all online, electronic or written information and instruction manuals regarding the use of the Licensed Software;
1.4 Harmful Code means any virus, disabling or malicious device or code, worm, trojan, time bomb or other harmful or destructive code;
1.5 Instance means a single copy of a set of files that make up the Licensed Software;
1.6 Interest Rate means the rate of interest quoted from time to time by the [Commonwealth Bank of Australia] as its indicator lending rate (or if such rate is no longer available, at an equivalent rate reasonably determined by the Licensor);
1.7 License means the license granted by the Licensor to the Licensee in terms of clause 3.1 of this Agreement;
1.8 License Fees means the fees and expenses payable by the Licensee to the Licensor in connection with the use of the Licensed Software as set out in the pricing schedule;
1.9 Licensed Software means the Hummingbird Cloud Management software developed by or on behalf of the Licensor offered through the website www.hummingbird247.com, as well as any updates, modifications and patches to such software that the Licensor makes available to the Licensee during the currency of this Agreement, and to be licensed as a Cloud Solution;
1.10 Licensee Data means the data, information, material or content the Licensee processes, submits or uploads using the Licensed Software;
1.11 Log Data means metadata about services in the cloud, logs, audit trail events and metrics;
1.12 Registered Users means the user or users of the Licensed Software that are authorised and registered by the Licensor;
1.13 Term means the duration of the License as selected by the Licensee at the time that the Licensee completes the online subscription application for the grant of a license in respect of the Licensed Software;
1.14 Trial Period means a period of 30 days commencing from the date that this Agreement takes effect (as provided for in clause 2.1).
2. Agreement legally binding
2.1 This Agreement commences and takes effect when the Licensee clicks an "I Agree" button or check box presented with these terms or by using the Licensed Software.
2.2 The Licensee represents to the Licensor that it has authority to enter into this Agreement.
2.3 By using the Licensed Software, the Licensee will be bound by the terms of this Agreement.
3.1 Subject to the provisions of clause 5, the Licensor grants the Licensee a non-exclusive, non-transferable, non-sub-licensable license to access, view and use the Licensed Software for the Term solely in accordance with this Agreement as an end user only.
3.2 The Licensee may not use the Licensed Software for third party training, rental or service bureau use. The Licensee must not rent, lease, sublicence, sell, assign, distribute or dispose of the Licensed Software, or the Documentation. The Licensee must not translate, disassemble, decompile or reverse engineer the Licensed Software or make any attempt to discover the source code of the Licensed Software or create derivative works based on the Licensed Software, or the Documentation or any portions thereof.
3.3 The Licensee’s use of the Licensed Software may be monitored by the Licensor:
(a) to ensure that the use is authorised;
(b) to facilitate protection against unauthorised access;
(c) to verify security procedures, availability and operational security;
(d) to provide software and feature updates or notification thereof; and
(e) for any other purposes reasonably required by the Licensor.
4. Access to Cloud Solution
4.1 To access the Licensed Software via the Cloud Solution, the Licensee must select a unique user identification name and password.
4.2 The Licensee must keep its unique user identification name and password confidential and not disclose them or make them available to any third party. The Licensor will only store the Licensee’s password in encrypted form.
4.3 The Licensor is not responsible for any unauthorised access or use of the Licensee’s unique user identification name or password. The Licensee is responsible for all activities which occur in connection with its unique user identification name and password (whether undertaken by the Licensee or a third party) or if such information is lost or stolen.
5. Term and Trial Period
5.1 The Licensee will be entitled to access, view and use the Licensed Software in accordance with the terms of this Agreement, but without the requirement for the payment of any License Fees, for the Trial Period.
5.2 Continued use of the Licensed Software by the Licensee after the Trial Period will be deemed to be acceptance by the Licensee of the functionality of the Licensed Software and agreement by the Licensee to continue to be bound by this Agreement for the balance of the Term.
5.3 If the Licensee does not wish to continue its use of the Licensed Software after the Trial Period, then:
(a) the Licensee must notify the Licensor thereof in writing by not later than the last day of the Trial Period;
(b) the License granted in terms of this Agreement will terminate at the end of the Trial Period; and
(c) the Licensor will deny the Licensee access to the account established by the Licensee for the use of the Licensed Software.
6. License Fees and Payment
6.1 The License Fees payable by the Licensee must be paid by the Licensee on the date or dates and in the manner set out in the pricing schedule.
6.2 All amounts payable by the Licensee must be paid in Australian dollars, without any deductions, withholdings or set-offs of any nature whatsoever on or before the due date of payment thereof.
6.3 Any amounts not paid when due will bear a late payment charge at 2% above the Interest Rate per annum until paid. The rights in this clause are in addition to any other rights under this Agreement, at law, or in equity.
In this Agreement: (i) GST means a goods and services tax or similar value added tax levied or imposed in Australia on a Supply; (ii) supply has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth); and (iii) Any consideration or payment obligations stated or referred to in this agreement does not include GST. If GST is imposed on any supply (other than a supply which is GST free under the A New Tax System (Goods and Service Tax) Act 1999 (Cth) made by any party (the supplier) to any other party (the recipient) under or in connection with this Agreement, the consideration for that supply is increased by an amount equal to the amount of that consideration multiplied by the rate at which GST is imposed in respect of that supply. The supplier must provide to the recipient a GST tax invoice as required by the relevant legislation.
8.1 The Licensee is solely responsible for the development, accuracy, quality, integrity, reliability, content, operation, maintenance, and use of the Licensee Data including but not limited to:
(a) data or content uploaded;
(b) any claims relating to the Licensee Data;
(c) end-users use of the Licensee Data;
(d) any corruption of the Licensee Data in connection with the Licensee’s use of the Licensed Software or otherwise; and
(e) compliance of the Licensee Data with any laws, rules regulations and policies.
8.2 The Licensee is solely responsible for:
(a) any costs associated with uploading the Licensee Data onto the Licensed Software and migrating the Licensee Data off the Licensed Software;
(b) the security of the Licensee’s account and password;
(c) taking its own steps to maintain appropriate security, protection and backup of the Licensee Data, which may include the use of encryption technology to protect the Licensee Data from unauthorized access and routine archiving the Licensee Data;
(d) regularly backing up the Licensee Data and using appropriate and up-to-date malicious code and virus detection software for preventing and detecting Harmful Code.
8.3 The Licensor will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of the Licensee Data.
8.4 The Licensee acknowledges that the Licensor may freely use the Log Data as part of its efforts to improve and analyse the performance of the Licensed Software and the Cloud Solution.
9. Copyright and Indemnity
9.1 This License is not a sale of the Licensed Software or any copies thereof. The Licensee acknowledges that the Licensor retains all right, title and interest in the Licensed Software, the Documentation and all other deliverables including but not limited to any upgrades, modifications, enhancements and any improvements of whatsoever nature, reports, programming, documentation and/or specifications.
9.2 The Licensed Software and the Documentation are copyrighted works of authorship of the Licensor and the Licensee must not at any time (either before or after termination of this Agreement) do any act or permit the doing of any act which infringes that copyright.
9.3 If the Licensed Software becomes or may become the subject of a claim of infringement of any third party's intellectual property rights, the Licensor may, at its sole option and discretion:
(a) replace or modify the Licensed Software to make in non-infringing; or
(b) refund any License Fees paid in advance.
9.4 The remedies set out in clause 9.3 are the Licensor’s sole liability and the exclusive remedy for any infringement of intellectual property rights by the Licensed Software or any other items provided by under this Agreement.
9.5 The Licensee indemnifies the Licensor, the Licensor’s affiliates, officers, directors, employees, members, managers, consultants, agents, and suppliers and will keep the Licensor indemnified on demand from and against all actions, claims, demands, losses, damages and expenses of whatever form or nature (including third party claims), including legal fees or other costs and disbursements that the Licensor or the Licensor’s affiliates sustain or incur as a direct or indirect result of:
(a) any infringement of the Licensor’s or any third party's intellectual property rights arising from the Licensee’s use of the Licensed Software;
(b) the Licensee’s use of the Licensed Software;
(c) violation by the Licensee or any other user of the Licensee’s account, of any intellectual property or other right of any person or entity;
(d) the Licensee’s breach of this Agreement or any applicable law, policy, rule or regulation.
10.1 Each of the parties must keep confidential all Confidential Information. Neither party shall, without the prior consent of the other party, disclose Confidential Information to any third party, and each party must take the appropriate measures to ensure that such confidentiality is preserved.
10.2 Notwithstanding clause 10.1 a party may disclose Confidential Information
(a) if and to the extent that the Confidential Information is in the public domain through no fault of the disclosing party;
(b) if and to the extent required by law or for any judicial proceedings;
(c) if and to the extent that the information was already known prior to the start of this Agreement or becomes known from a third party other than by breach of confidence.
10.3 The obligations under this clause survive termination.
11. Disclaimer and Limitation of Liability
11.1 The Licensed Software is provided on an as is basis and the Licensee’s use of it is at its sole risk. Except as expressly provided in this Agreement and except for any condition or warranty the exclusion of which could be void or otherwise contravene the Competition and Consumer Act 2010 (Cth) ("CCA") or any other laws, the Licensor makes no warranties, express or implied with regard to the Licensed Software.
11.2 The Licensor will not be liable to the Licensee for any incidental, indirect, consequential, special, punitive or exemplary damages whatsoever (including, but not limited to, loss of profits, revenue, data or use) which may arise from use of the Licensed Software or the hosting of content or data on the Licensed Software, including but not limited to those resulting from defects in the Licensed Software, or loss, corruption or inaccuracy of data of any kind (including the Licensee Data), or any unauthorised access to, alteration of, or the deletion, destruction, corruption, damage, loss or failure to store any of the Licensee Data, or as a result of any termination or suspension of this Agreement or the Licensee’s use of or access to the Licensed Software, the discontinuation of the Licensed Software or changes to the service offered by the Licensed Software, or any downtime of the Licensed Software for any reason including but not limited to as a result of power outages, system failure or other interruptions, even if the Licensor has been advised, knew or should have known of the possibility thereof and whether such damages are claimed in contract, tort or under any statute, regulation, proclamation, ordinance or by-law of any Federal, State or Territorial authority or body.
11.3 Subject to clauses 11.1 and 11.2 the Licensor's liability for damages to the Licensee or any other party for any cause whatsoever will never exceed the License Fees actually paid by the Licensee to the Licensor whether such liability for damages are claimed under contract, tort or under any statute, regulation, proclamation, ordinance or by-law of any Federal, State or Territorial authority or body.
11.4 To the fullest extent permitted by law the parties agree to exclude any terms which would otherwise be implied into the Agreement by any statute including the CCA. Notwithstanding the foregoing provision, the liability of the Licensor for breach of a condition or warranty implied into this Agreement by the CCA is limited:
(a) in the case of goods, to any one of the following as determined by the Licensor:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the costs of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
(b) in the case of services, to any one of the following as determined by the Licensor:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
2.1 Access to the Licensed Software may be suspended if a third party supplier of the servers on which the Cloud Solution is hosted suspends provision of access to those servers or in the Licensor’s discretion including if there is a planned outage for operational or maintenance reasons, it is considered necessary for unscheduled repair, maintenance or service or in connection with a suspected or actual security risk.
12.2 In the Licensor’s sole discretion it may suspend the Licensee’s account or the Licensee’s right to access the Licensed Software and the Licensee’s account. Circumstances when this may occur includes but not limited to:
(a) on receipt of evidence of inappropriate or unauthorised access;
(b) service upgrades;
(c) the Licensee’s use of the Licensed Software poses a security risk to the Licensed Software, or any third party, may adversely impact the systems or data of any other user, may subject the Licensor, the Licensor’s affiliates, or any third party to liability, or may be fraudulent;
(d) non-compliance with this Agreement;
12.3 the Licensor’s under this clause 12 are in addition to any other rights of termination in this Agreement.
12.4 If the Licensee’s right to access the Licensed Software and the Licensee’s account is suspended at any time:
(a) the Licensee remains responsible for any Licence Fees and any other fees and charges incurred to the date of suspension; and
(b) the Licensee remains responsible for any applicable fees or charges in connection with any access which the Licensee may continue to have during this suspension period.
13.1 The Licensor will be entitled to terminate this Licence for any reason by providing the Licensee with 30 days’ notice in writing.
13.2 The Licensor will be entitled to terminate this Licence immediately by notice in writing if:
(a) the Licensee fails to pay any Licence Fees owing by the due date;
(b) the Licensee is in breach of any term or condition of this Agreement and such breach is not remedied within seven (7) days of written notice from the Licensor;
(c) a liquidator (provisional or final), receiver, receiver and manager or administrator is appointed to the Licensee or an order is granted for the winding up of the Licensee or the Licensee passes a resolution for its winding up.
13.3 On termination of this Licence for any reason:
(a) all of the Licensee’s rights under this Agreement immediately terminate and the Licensee must immediately discontinue the use of all Licensed Software and at the request of the Licensor destroy all copies of such software;
(b) the Licensee remains responsible for all fees and charges incurred to the date of termination; and
(c) the Licensee must remove the Licensee Data from being stored using the Licensed Software (at its cost and risk).
13.4 Any termination of this Agreement is without prejudice to the accrued rights and remedies of the parties at the date of termination.
14.1 The Licensor may modify this Agreement at any time by posting a revised version on the Licensor’s website and/or notifying the Licensee thereof in accordance with the provisions of clause 15.1 of this Agreement.
14.2 The modified terms will become effective upon posting on the website. By continuing to use the Licensed Software after the effective date of any modifications to this Agreement, the Licensee agrees to be bound by the modified terms.
14.3 Other than as set out above, no addition to, or modification of any provision of this Agreement will be binding unless agreed to in writing by the Licensor.
(a) posting a notice on www.hummingbird247.com;
(b) sending a message to the email address then associated with the Licensee’s account.
15.2 Notices the Licensor provides by posting on www.hummingbird247.com will be effective upon posting and notices the Licensor provides by email will be effective when the Licensor sends the email to the Licensee.
15.3 It is the Licensee’s responsibility to keep the Licensee’s email address current. The Licensee will be deemed to have received any email sent to the email address then associated with the Licensee’s account when the Licensor sends the email, whether or not the Licensee actually receives the email.
15.4 To give the Licensor notice under this Agreement the Licensee must use the email or physical address displayed at Hummingbird247.com.
16.1 Neither party shall be liable to the other for the consequences of any delays or failure in performance caused by any event beyond that party's reasonable control, including but not limited to acts of God, fire, flood, strike, labour problems (not being labour problems relating to that party's employees or contractors) or riots.
16.2 This Agreement will be governed by the laws of the State of Queensland and the parties hereby agree to submit to the non-exclusive jurisdiction of the courts of Queensland and all courts having jurisdiction to hear appeals therefrom.
16.3 This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter hereof.
16.4 This Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
16.5 This Agreement and any rights under this Agreement are not assignable by the Licensee without prior written consent from the Licensor. The Licensor may assign any of its rights and obligations under this Agreement without the consent of the Licensee.
16.6 A certificate signed by the Licensor about a matter or about a sum payable to the Licensor in connection with this Agreement is sufficient evidence of the matter or sum stated in the certificate unless the matter or sum is proved to be false.
16.7 Any provision of this Agreement that is illegal, void or unenforceable will not form part of this Agreement to the extent of that illegality, voidness or unenforceability. The remaining provisions of this Agreement will not be invalidated by an illegal, void or unenforceable provision.
16.8 A waiver of a breach of this Agreement or of any right, power, authority, discretion or remedy arising upon a breach of or a default under this Agreement must be in writing and signed by the party granting the waiver. A breach or default under this Agreement is not waived by any failure to exercise or delay in exercising or partial exercise of any right, power, authority, discretion or remedy under this Agreement.