BACKGROUND
Environmental Systems Solutions wishes to license information management software to the Licencee and the Licencee desires to purchase the Software licence under the terms and conditions stated below.
Licence
- Under this Agreement the Vendor grants to the Licencee a non-exclusive and non-transferable licence to use the Environmental Systems Solutions Information Management System (the “Software”).
- “Software” includes the executable computer programs and any related printed, electronic and online documentation and any other files that may accompany the product.
- Title, copyright, intellectual property rights and distribution rights of the Software remain exclusively with the Vendor. Intellectual property rights include the look and feel of the Software. This Agreement constitutes a licence for use only and is not in any way a transfer of ownership rights to the Software.
- The software can be installed onto a single Microsoft Windows server managed by ESS via a services agreement or by the licensee
- The Software may not be modified, reverse-engineered, or de-compiled in any manner through current or future available technologies.
- Failure to comply with any of the terms under the licence section will be considered a material breach of this Agreement.
Licence Fee
- The purchase price stated in the Terms of Service Agreement and paid by the Licencee will constitute the entire licence fee and is the full consideration for this Agreement.
Limitation of Liability
- The Software is provided by the Vendor and is accepted by the Licencee “as is”. Liability of the Vendor will be limited to a maximum of the original purchase price of the Software. The Vendor will not be liable for any general, specific, incidental or consequential damages including, but not limited to, loss of production, loss of profits, loss of revenue, loss of data, or any other business or economic disadvantage suffered by the Licencee arising from the use or failure to use the Software.
- The Vendor makes no warranty expressed or implied regarding the fitness of the Software for a particular purpose or that the Software will be suitable or appropriate for the specific requirements of the Licencee.
- The Vendor does not warrant that the use of the Software will be uninterrupted or error-free. The Licencee accepts that Software in general is prone to bugs and flaws within an acceptable level as determined in the industry.
- The Vendor does not warrant that any hosting and backup services provided by ESS under a "Services Agreement" or via annual support arrangement will be uninterrupted or error-free. The Licensee accepts that hosting and backup services are prone to interruptions within an acceptable level as determined in the industry. Any restoration of data as a result of system failure will be restored where possible within a reasonably acceptable time frame. Any costs associated with the restoration of data will be at the expense of the licensee.
Warrants and Representations
- The Vendor warrants and represents that it is the copyright holder of this Software. The Vendor warrants and represents that granting the licence to use this Software is not in violation of any other Agreement, copyright or applicable stature.
Acceptance
- All terms, conditions and obligations of this Agreement will be deemed to be accepted by the Licencee (“Acceptance”) upon execution of any service agreement that includes the purchase of the software licence.
User Support
- User support and maintenance is limited to the number of days or hours as specified in the Terms of Service Agreement.
Term
- The term of this Agreement will begin on acceptance and is perpetual.
Termination
- This Agreement will be terminated and the licence forfeited where the Licencee has failed to comply with any of the terms of this Agreement or is in breach of this Agreement. On termination of this Agreement for any reason, the Licencee will promptly destroy the Software or return the Software to the Vendor.
Force Majeure
- The Vendor will be free of liability to the Licencee where the Vendor is prevented from executing its obligations under this Agreement in whole or in part due to Force Majeure, such as earthquake, cyclone, flood, fire, and war or any other unforeseen and uncontrollable event where the Vendor has taken any and all appropriate action to mitigate such an event.
Additional Clauses
- The functions and ongoing performance of third-party software included under the Terms of Service Agreement (e.g. third-party data collection software) is not the responsibility of the Vendor, nor does it come under the terms of this Agreement.
- Where third party software subscriptions (ie Fulcrum) are purchased by ESS on behalf of the licensee. the licensee agrees to abide by the terms and conditions set by third party vendors. Any breach of those terms and conditions will be the sole responsibility of the Licensee
Governing Law
- The Parties to the Agreement submit to the jurisdiction of the courts of the relevant Commonwealth States and Territories for the enforcement of this Agreement. This Agreement will be enforced or construed according to the laws of the state of Victoria.
Miscellaneous
- This Agreement can only be modified in writing signed by both the Vendor and the Licencee.
- This Agreement does not create or imply any relationship in agency or partnership between the Vendor and the Licencee.
- Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine gender include the feminine gender and vice versa. Words in the neuter gender include the masculine gender and the feminine gender and vice versa.
- If any term, covenant, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, it is the parties' intent that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable and the remainder of the provisions of this Agreement will in no way be affected, impaired or invalidated as result.
- This Agreement contains the entire Agreement between the parties in relation to this Software. All understandings have been included in this Agreement. Representations that may have been made by any party to this Agreement may in some way be inconsistent with this final written Agreement. All such statements are declared to be of no value in this Agreement. Only the written terms of this Agreement will bind the parties.
- This Agreement and the terms and conditions contained in this Agreement apply to and are binding upon the Vendors successors and assigns.
Notices
- All notices to the parties under this Agreement are to be provided at the following address or at such address is as may be later provided in writing:
Environmental Systems Solutions: PO Box 1029, Moonee Ponds Victoria 3039