NOTE: If you have purchased PageSeeder you will have received another license agreement which supersedes this developer license.
IMPORTANT-READ CAREFULLY: THIS AGREEMENT IS BETWEEN YOU (THE "LICENSEE") AND WEBORGANIC SYSTEMS PTY LTD (THE "LICENSOR") FOR PAGESEEDER™ (THE "SOFTWARE").
BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCESSING THE SOFTWARE ELECTRONICALLY, INDICATE YOUR ACCEPTANCE OF THESE TERMS BY SELECTING THE "ACCEPT" BUTTON AT THE END OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THESE TERMS, PROMPTLY DESTROY ALL COPIES OF THE SOFTWARE OR, IF THE SOFTWARE IS ACCESSED ELECTRONICALLY, SELECT THE "DECLINE" BUTTON AT THE END OF THIS AGREEMENT.
BACKGROUND
A. The Licensee wishes to evaluate the Software.
B. The Licensor has offered to grant the Licensee a license to use the Software for the
purposes of evaluation subject to the terms and conditions set out below.
IT IS AGREED AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
"Confidential Information" means information that:
(a) is by its nature confidential;
(b) is designated by the Licensor as confidential;
(c) the Licensee knows or ought to know is confidential,
and includes:
(d) information comprised in or relating to any intellectual property in the Software and
the Software Material;
(e) information relating to the Software and the Software Material including, but not
limited to, technical information, know how and other valuable information; and
(f) information relating to the Licensor including, but not limited to, its business
arrangements, strategic and financial information of any kind, and information concerning
its clients and suppliers.
"Software Material" means all information relating to the Software,including but
not limited to technical, design, functional, operational and instructional information,
data, documents and reports.
"Effective Date" means the date on which you received the Software.
"Term" means the period from the Effective Date until termination or expiration
in accordance with clause 5.
2. TITLE
2.1 All rights, title and interest including intellectual property in the Software and all Software Material relating thereto is and will remain vested in the Licensor.
3. LICENSE
3.1 The Licensor grants to the Licensee a non-transferable, non-assignable,
non-exclusive, royalty free license to use the Software and the Software Material for the
Term and only for the limited purpose of evaluating the functionality and performance of
the Software.
3.2 The Licensee:
(a) must use the Software and the Software Material at the Evaluation Site only; and
(b) may make copies of the Software and the Software Material only for the purposes of the
evaluation of the Software.
3.3 The Licensee must not:
(a) reverse assemble or reverse compile, alter, modify, disassemble, decrypt or create
derivative works of the Software or the Software Material;
(b) rent, sell or transfer all or part of the Software or the Software Material to any
other person;
(c) make the Software available to persons other than employees and contractors of the
Licensee and then only for use at the Evaluation Site(s); or
(d) copy or use the Software in any way not specifically permitted under this clause 3.
3.4 The Licensee agrees to provide appropriate instructions to, or in the case of
independent contractors, have appropriate written agreements with each of the users of the
Software to ensure compliance with this clause 3 and the confidentiality obligations
detailed in clause 4.
4. CONFIDENTIALITY
4.1 The Licensee agrees that the Licensor may disclose to it or it may become aware of
Confidential Information, the improper disclosure of which would severely damage the
Licensor’s business.
4.2 The Licensee shall not disclose Confidential Information to any person other than an
employee or contractor of the Licensee who needs to know the Confidential Information for
the purpose of evaluating the Software under this Agreement without the prior written
consent of the Licensor, which it may grant or withhold in its absolute discretion.
4.3 This clause shall survive the termination or expiration of this Agreement.
5. TERM AND TERMINATION
5.1 This Agreement will commence on the Effective Date and will
remain in effect until terminated under clause 5.2.
5.2 the Licensor or the Licensee may terminate this Agreement at any time without cause by
written notification. Upon expiration or termination, the Licensee shall immediately
discontinue all use of the Software and the Software Material and destroy all copies of
the Software.
6. WARRANTIES, DISCLAIMERS AND DISCLOSURES
61 The Software is provided "AS IS" without any warranty of any kind, express
or implied including but not limited to any warranties of merchantability or fitness for a
particular purpose. The Licensor does not warrant that the functionality of the Software
will meet the requirements of the Licensee or that the operation of the Software will be
uninterrupted or error-free, or that defects in the Software will be corrected during the
Term. Furthermore, the Licensor does not warrant or make any representations regarding the
use or the results of the use of the Software in terms of completeness, accuracy,
reliability or otherwise. The Licensee assumes the entire risk as to the quality and
performance of the Software.
6.2 Nothing herein shall exclude, restrict or modify any condition, warranty or liability
which may at any time be implied by any Trade Practices, Fair Trading, Sale of Goods or
Credit legislation or regulation or any other State or Federal law where to do so is
illegal or would render any provision of this Agreement void. In such cases and where
permitted by the legislation the Licensor’s liability in respect of any such
provision shall be limited at the option of the Licensor to:
(a) the replacement of the Software or the Software Material or the supply of equivalent
products; or
(b) the repair of the Software or the Software Material.
6.3 The Licensor shall not be liable for any direct, indirect, incidental, special or
consequential damages, including but not limited to damages for loss of profits, savings,
data or wasted expenditure arising from the use or inability to use the Software.
6.4 The Licensee shall be solely responsible for procuring or obtaining at its own expense
all hardware, equipment and facilities necessary or required for evaluating the Software.
6.5 The Licensee shall be solely responsible for procuring or engaging at its own expense
suitable personnel for undertaking the evaluation of the Software.
6.6 The Licensee warrants that before entering into this Agreement it has disclosed to the
Licensor all past, current and anticipated interests of the Licensee which may conflict
with or restrict the Licensee in performing its obligations under this Agreement fairly
and independently. The Licensee warrants further that it shall not during Term engage in
any activity or obtain any interest likely to conflict with or restrict the Licensee in
performing its obligations under this Agreement fairly and independently and shall
immediately disclose to the Licensor such activity or interest.
7. NO SUPPORT
7.1 The Licensor is under no obligation to support the Software or to provide Licensee with updates or error corrections (collectively "Software Updates"). If Licensor at its sole option, supplies Software Updates to Licensee, the Software Updates will be considered part of the Software, and subject to the terms of this Agreement.
8. OBLIGATIONS
8.1 The Licensee and the Licensor have entered into this Agreement for the purpose of
allowing the Licensee to evaluate the Software only. Neither the Licensee or the Licensor
will have any other obligations other than those expressed in this Agreement.
8.2 Neither the Licensee or the Licensor intend that any partnership, agency or joint
venture relationship is created by this Agreement.
9. PUBLICITY
9.1 The Licensee shall permit the Licensor to use the Licensee’s name for the purpose of or in connection with the advertising, marketing or promotion of the Software.
10. SECURITY
10.1 The Licensee shall be solely responsible for the use, supervision, management and
control of the Software and the Software Material during the Term.
10.2 The Licensee acknowledges that any failure by it to ensure proper use, supervision,
management and control over the Software and the Software Material could severely damage
the Licensor’s business.
11. LEGAL PROCEEDINGS
11.1 The Licensee acknowledges that the Licensor may take legal proceedings against the Licensee or third parties if there is any actual, threatened or suspected breach of this Agreement, including proceedings for an injunction to restrain such breach.
12. ENTIRE AGREEMENT
12.1 This Agreement sets forth and shall constitute the entire agreement between the parties with respect to the subject matter thereof, and shall supersede any and all prior communications between the parties, both oral and written, including but not limited to proposals, negotiations, representations, promises and agreements. No further agreement, amendment or modification of this Agreement shall be valid or binding unless made in writing and executed on behalf of the parties by their duly authorised officers or representatives.
13. HEADINGS
13.1 Headings in this Agreement are for convenience only and shall not be incorporated in the Agreement or deemed to be an indication of the meaning of the articles to which they relate.
14. SEVERANCE
14.1 In the event that any provision of this Agreement is declared by any judicial or competent authority to be void, illegal or otherwise unenforceable, the parties shall endeavour to agree to such amendment which shall as far as possible effect the intentions expressed herein. The remaining provisions of this Agreement shall remain in full force and effect.
15. APPLICABLE LAW AND JURISDICTION
15.1 This Agreement shall be construed, governed by and interpreted in accordance with
the laws of the State of New South Wales, Australia.
15.2 Subject to clause 16.5, before resorting to any external dispute resolution
mechanisms, the parties shall attempt to settle by negotiation any dispute in relation to
this Agreement including by referring the matter to other personnel of the parties who may
have authority to intervene and direct some form of resolution.
15.3 If a dispute is not settled by the parties within 10 days (or such other periods as
the parties agree) of one party first sending to the other party written notice that they
are in dispute, the dispute shall be submitted to an external dispute resolution mechanism
which is appropriate to deal with the dispute and is situated at a place convenient and
fair to both parties.
15.4 Notwithstanding the existence of a dispute, each party shall continue to perform its
obligations under this Agreement.
15.5 A party may commence court proceedings in relation to any dispute arising from the
Agreement at anytime where that party seeks urgent interlocutory relief.
16. OTHER AGREEMENTS NOT AFFECTED
16.1 This Agreement shall not affect or be affected by any agreement in effect at any time between the Licensor and the Licensee.