TERMS OF SERVICE

BETWEEN: Future Journeys Pty Ltd ACN 092 455 680 trading as “Teazl” of 608 Bunnerong Road, Matraville NSW 2036 Australia

AND: The Party described in Item 2 of the Schedule

RECITALS

  1. The Licensor owns certain computer software.
  2. The Licensor has agreed to grant the Licensee a non-exclusive and non-transferable licence to use the computer software and its associated documentation, on the terms and conditions contained in this Agreement.

OPERATIVE PARTS

  1. Grant of Licence

In consideration of the covenants and promises given by the Licensee to the Licensor and the payment of the Licence Fee by the Licensee to the Licensor (under this Agreement), the Licensor grants to the Licensee a non-exclusive and non-transferrable licence to use the Licensed Software and the Documentation during the Term in relation to the Licensee’s Business, subject to and in accordance with the terms and conditions of this Agreement.

  1. Licence Fee
    1. In consideration of the Licence granted under this Agreement, the Licensee must pay the Licence Fee to the Licensor.
    2. Unless otherwise agreed between the Parties:
      1. the Licence Fee is payable monthly (and pro rata for part of a month in the event of termination pursuant to clause 17.2) or annually  (and pro rata for part of a year in the event of termination pursuant to clause 16.2; and
      2. the Licensee must pay the Licence Fee on or before the day of the month, or where the Licence Fee is payable annually, the day of the year, on which the anniversary of the commencement falls.
    3. The Licence Fee must be paid by electronic funds transfer  or by such other online payment method as the Licensor directs.
  1. Delivery and Installation
    1. The Licensor will provide the Licensee with access to the Licensed Software and the Documentation on the Commencement Date.
    2. The Licensee will be responsible for the compatibility of the Licensed Software with the Licensee’s server, servers or software.
    3. The Licensee must ensure that the computer equipment on which the Licensed Software is accessed is in good, up to date working order and operating condition both:
      1. when the Licensee receives access to the Licensed Software; and
      2. throughout the period that the Licensee uses the Licensed Software.
    4. The Licensor is not responsible to provide any services or support in respect of the compatibility of the Software under this Agreement.
  2. Updates

The Licensor will provide updates but not new releases of the Licensed Software pursuant to this Agreement.

  1. Use of Licensed Software
    1. The Licensee agrees that the Licensee must only use the Licensed Software and the Documentation in connection with the conduct of the Licensee’s Business and not for or in connection with any other purpose or other business. The Licensee further agrees that the Licensee must not:
      1. use the Licensed Software for any purpose or in any manner other than as set out in clause 1;
      2. 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;
      3. permit any third party (except an employee of the Licensee and limited to extent contemplated in Item 5 of the Schedule) to use the Licensed Software;
      4. except as expressly permitted by this Agreement and except to the extent that applicable laws including but not limited to the Copyright Act prevent the Licensor restraining the Licensee from doing so:
        1. reproduce, make error corrections to or otherwise modify or adapt the Licensed Software or the Documentation or create any derivative  works based on the Licensed Software or the Documentation; or
        2. de-compile, disassemble or otherwise reverse engineer the Licensed Software or permit any third party to do so; or
        3. modify or remove any copyright or proprietary notices on the Licensed Software or the Documentation.
  2. Ownership of Software

The Licensee acknowledges and agrees that the Licensor retains ownership of the Licensed Software whether in its original form or as modified during the Term.

  1. No Copies of Software

The Licensee must not copy the Licensed Software, in whole or in part.

  1. No Modifications
    1. The Licensee must not modify the whole or any part of the Licensed Software or combine or incorporate the whole or any part of the Licensed Software in any other program or system without the prior written consent of the Licensor which will be at the Licensor’s absolute discretion.
    2. If the Licensed Software is modified with the Licensor’s prior written consent then the Licensed Software as modified remains the property of the Licensor and this Agreement will continue to apply to the Licensed Software as modified.
  2. Security

The Licensee will be responsible for protecting the Licensed Software at all times from unauthorised access, use or damage.

  1. Intellectual Property Rights
    1. Nothing in this Agreement constitutes a transfer of any of the Intellectual Property Rights in the Licensed Software owned by the Licensor to the Licensee.
    2. The Licensee:
      1. acknowledges and agrees that the Licensor owns all the Intellectual Property Rights in and to the Licensed Software; and
      2. will not directly or indirectly do anything that would or might invalidate or put the Licensor’s Intellectual Property Rights in or to the Licensed Software in dispute.
    3. If any person makes any claim alleging that any of the Licensed Software (or any use of the Licensed Software) infringes any Intellectual Property Rights or Moral Rights of any person, the Licensee must:
      1. promptly notify the Licensor in writing;
      2. not make any admissions or take any actions in relation to the claim without the Licensor’s prior written consent;
      3. permit the Licensor to have complete control over any and all investigations, negotiations, settlement and dispute resolution proceedings relating to the claim; and
      4. 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. The Licensor acknowledges that the Intellectual Property Rights in and to any content created by the Licensee while using the Licensed Software in accordance with the terms of this Agreement remain the property of the Licensee.
    5. The Licensee warrants that it owns the Intellectual Property Rights to all content placed by it onto the Licensed Software.
    6. The Licensee warrants that no content placed by it onto the Licensor’s server infringes any Intellectual Property Rights or other commercial property rights of any person, and in the case that it does, the Licensee acknowledges and agrees that the Licensee is solely liable for the payment of any licence fee, compensation and/or damages to any third party.
  2. GST Matters
    1. For the purposes of this clause:
      1. GSTmeans the goods and services tax as imposed by the GST Law together with any related interest, penalties, fines or other charge;
      2. GST Amountmeans any Payment (or the relevant part of that Payment) multiplied by the appropriate rate of GST (currently 10%);
      3. GST Lawhas the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999, or, if that Act does not exist for any reason, means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia and any regulation made under that Act;
      4. Input Tax Credithas the meaning given to that term by the GST Law;
      5. Paymentmeans any amount payable under or in connection with this Agreement including any amount payable by way of indemnity, reimbursement or otherwise (other than a GST Amount) and includes the provision of any non-monetary consideration;
      6. Tax Invoicehas the meaning given to that term by the GST Law; and
      7. Taxable Supplyhas the meaning given to that term by the GST Law.
    2. The parties agree that where the provision of the License for the Licensed Software is an overseas supply, it will be a GST-free supply.
    3. Despite clause 11.2, if a Party incurs a liability to pay GST in connection with a supply to the Licensee pursuant to this Agreement, the consideration that the Licensee must provide to the Licensor for that supply is increased by an amount equal to the GST liability that the Licensor incurs in making the supply and that amount is payable at the same time as the consideration is payable in respect of that supply before that increase.
    4. The parties agree that:
      1. unless specifically stated otherwise, all Payments have been calculated without regard to GST;
      2. each Party will comply with its obligations under the GST Law when calculating the amount of any Payment and the amount of any relevant Payments will be adjusted accordingly;
      3. if the whole or any part of any Payment is the consideration for a Taxable Supply, the payer must pay to the payee an additional amount equal to the GST Amount, either concurrently with that Payment or as otherwise agreed in writing;
      4. any reference to a cost or expense in this Deed excludes any amount in respect of GST forming part of the relevant cost or expense when incurred by the relevant party for which that party can claim an Input Tax Credit; and
      5. the payee will provide to the payer a Tax Invoice.

 

  1. Audit

The Licensee must permit the Licensor (or its nominated auditor) to audit the records and premises of the Licensee at any time during the Term and for three (3) years following the end of the Term, on at least five (5) days written notice for the purpose of confirming the Licensee’s compliance with this Agreement provided that such audit shall not unduly interfere with the conduct of the Licensee’s Business.  If the audit reasonably establishes that the Licensee has breached this Agreement then the Licensee must pay the reasonable cost of the audit.

  1. General Warranties by both Parties

Each Party warrants to the other that:

    1. it has authority to enter into and to perform its obligations under this Agreement;
    2. it has the ability to perform its obligations under this Agreement; and
    3. it is authorised by all necessary government and other agencies and authorities to perform its obligations under this Agreement and will continue to be authorised to perform this Agreement.
  1. Warranties by Licensor

The Licensor warrants to the Licensee that the Licensed Software meets the description set out in Item 5 of the Schedule.

  1. Liability
    1. To the full extent permitted by law, the Licensor excludes all liability in respect of loss of data, interruption of business and/or any Consequential Loss or Damage.
    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.
    3. The Licensor’s total aggregate liability for all claims relating to this Agreement is limited to the fees, if any, payable under this Agreement.
    4. Each 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.
    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 or obligations.  If such legislation applies then, to the extent possible, the Licensor limits its liability in respect of any claim to, at the Licensor’s option:
      1. in the case of goods:
        1. the replacement of the goods or the supply of equivalent goods;
        2. the repair of the goods;
        3. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
        4. the payment of the cost of having the goods repaired; and
      2. in the case of services:
        1. the supply of the services again; or
        2. the payment of the cost of having the services supplied again.
  2. Termination
    1. Either Party may terminate this Agreement by giving  written notice  (including by giving written notice online) to the other Party within seven (7) days of the monthly anniversary of the Commencement Date.
    2. If any of the following events has occurred in respect of the other Party:
      1. a material breach of this Agreement which is not remediable or, if capable of remedy, where the other Party fails to remedy the breach within fourteen (14) days of written notice to do so; and/or
      2. an insolvency event occurs other than for the purpose of internal reconstruction with notice to the other Party;

then either Party may terminate this Agreement forthwith by written notice to the other Party.

  1. Consequences of Termination

If this Agreement is terminated or expires for any reason then, in addition and without prejudice to any other rights or remedies available:

    1. the Parties are immediately released from their obligations under this Agreement except those obligations in clauses:
      1. 5 – Use of Licensed Software;
      2. 10 – Intellectual Property Rights;
      3. 11 – GST Matters;
      4. Audit;
      5. 15 – Liability;
      6. 18 Confidentiality,

and any other obligations that, by their nature, survive termination;

    1. each Party retains the claims it has against the other Party;
    2. the Licensee’s right to use the Licensed Software immediately ceases and the Licence terminates; and
    3. the Licensee must immediately pay all outstanding fees, if any.
  1. Confidentiality
    1. A Party must not, without the prior written consent of the other Party, use or disclose any other Party’s Confidential Information unless expressly permitted to do so by this Agreement or required to do so by law or any regulatory authority.
    2. A Party may:
      1. 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
      2. disclose the Confidential Information to its personnel or advisors 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 Confidential Information is retained.
    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.
    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.
  2. Notices
    1. For the purposes of this clause:
      1. Notice” means any notice, demand or other document or communication; and
      2. Given” means given, served, made or received, as the case may be.
    2. Any Notice under or pursuant to this Deed may be Given by a Party to the other Party, delivered personally, or posted by prepaid post addressed to the Party’s address shown in this Agreement.
    3. Any Notice Given by post is deemed to have been duly Given at the time when it would in the ordinary course of post be delivered.
    4. Despite anything to the contrary contained in this Deed, a Notice is Given for the purpose of this Deed if the Notice is sent by facsimile transmission and in such case will be deemed to be duly Given when the transmission has been completed except where:
      1. the sender’s machine indicates a malfunction in transmission or the recipient immediately notifies the sender of an incomplete transmission, in which case the facsimile transmission will be deemed not to have been Given; or
      2. the time of dispatch is at or after 5.00pm (recipient’s local time) on a day on which business is generally carried on in the place at which such notice is sent, in which case the notice will be deemed to have been Given at the commencement of business on the next business day in that place.
    5. Also despite anything to the contrary contained in this Deed, a Notice is Given  for the purposes of this Agreement if the Notice is sent by email transmission and in such case will be deemed to be duly Given when the transmission has been completed except where:
      1. the sender’s computer indicates a malfunction in transmission or the sender receives a non-delivery notice or the recipient notifies the sender that the recipient is “out of office”,  in which case the email transmission will be deemed not to have been Given; or
      2. the time of dispatch is at or after 5.00pm (recipient’s local time) on a day on which business in the place to which such notice is sent, in which case the notice will be deemed to have been Given at the commencement of business on the next business day in that place.
    6. Except as otherwise provided in this Deed, all Notices required or permitted to be Given under this Deed must be in writing or electronic form and, if signed, may be signed by the Party or the Party’s duly appointed attorney or by his, her or its legal personal representative or solicitor.
  3. Costs
    1. Each Party must pay its own costs and expenses incurred in relation to the negotiation, preparation and execution of this Agreement and, subject to clause 20.2, any matter or thing done pursuant to this Agreement.
    2. If any Party breaches this Agreement and another Party successfully enforces this Agreement against that Party, the defaulting Party must pay the enforcing Party’s costs and expenses incurred in respect of such enforcement on a solicitor and own client basis.
  4. Definitions

In this Agreement including the recitals, the following words have the following meanings respectively unless the context requires otherwise:

    1. Agreement” means this software licence agreement and all amendments to this agreement.
    2. Business Day” means any day which is not Saturday, Sunday or a public holiday in New South Wales.
    3. Commencement Date” means the date set out in Item 1 of the Schedule.
    4. 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:
      1. 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
      2. information developed independently by a Party.
    5. Consequential Loss or Damage” means all or any of the following:
      1. loss of profit;
      2. loss or denial of opportunity;
      3. loss of use;
      4. loss of revenue;
      5. loss of production;
      6. loss of labour;
      7. loss of access to markets;
      8. loss of goodwill;
      9. loss of business reputation including future reputation;
      10. adverse publicity;
      11. damage to credit rating;
      12. removal costs;
      13. re-installation costs;
      14. commissioning costs;
      15. increase in maintenance costs;
      16. indirect, remote, abnormal or unforeseeable loss; and
      17. any similar loss whether or not in the reasonable contemplation of the Parties at the time of execution of this Agreement;

whether arising from a breach of contract or tort (including negligence) or under statute or any other basis in law or equity.

    1. Copyright” means copyright subsisting in the Works pursuant to the Copyright Act 1968 (Cth) and the Copyright Act 1994 (NZ).
    2. Copyright Act means the Copyright Act 1968 (Cth) and the Copyright Act 1994 (NZ).
    3. Designs means the designs of the Products or proposed Products, including unregistered designs and designs  registered under the Designs Act 2003 (Cth) and the Designs Act 1953 (NZ), and any other designs that the Licesnor notifies the Licensee it claims ownership of from time to time.
    4. Documentation” means any and all proprietary documentation, whether electronic or printed, made available to the Licensee by the Licensor for use with the Licensed Software, including any documentation available online.
    5. Force Majeure Event” means any event beyond the control of the relevant Party.
    6. “Intellectual Property” means the:
      1. Copyright;
      2. Designs;
      3. Trade Marks;
      4. patents and
      5. all other intellectual property, if any, of the Licensor in relation to the Licensed Software and the Works, individually and together, and each part of them.
    7. Intellectual Property Rights” means all the Licensor’s rights in respect of its Intellectual Property throughout the world, whether or not now existing and whether or not registered or registrable, and any applications for registration or rights to make any such application as well as all renewals and extensions of such rights.
    8. Licence” means the licence to use the Licensed Software and the Documentation granted pursuant to this Agreement.
    9. Licence Fee” means the fee set out in Item 4 of the Schedule.
    10. Licensed Software” means the Teazl clearing, authorising and publishing software owned by the Licensor and more fully described in Item 5 of the Schedule, which delivers interactive content to certain (but not all) smart phones and provided to the Licensee by the Licensor pursuant to this Agreement.
    11. Licensee” means the person or company described in Item 2 of the Schedule.
    12. Licensee’s Business” means the business set out in Item 3 of the Schedule.
    13. Licensor” means Future Journeys Pty Ltd ACN 092 455 680 trading as “Teazl” and its successors and assigns.
    14. Moral Rights” has the meaning give under the Copyright Act and includes any similar rights existing in other countries.
    15. Parties” means the parties to this Agreement, and each of them is a “Party”.
    16. Teazl means the business name registered by the Licensor and is the name of the Licensed Software
    17. Term” means the period from the Commencement Date until this Agreement is validly terminated by either Party for any reason.
    18. Trade Marks means all trade marks used in relation to the Licensed Software, whether unregistered or registered pursuant to the Trade Marks Act 1995 (Cth) or the Trade Marks Act 2002 (NZ) and whether subject to an application for registration or not, including any logos or product names used in relation to the Licensed Software from time to time.
    19. Works means any literary, dramatic, musical or artistic works within the meaning of the Copyright Act.
  1. Interpretation

In this Agreement, unless the context otherwise requires:

    1. an agreement or covenant by a company is an agreement or covenant by such company, its assigns and successors in title;
    2. an agreement or covenant by two or more persons binds them individually and together;
    3. words importing one gender include the other gender or genders;
    4. words importing the singular number include the plural number and vice a versa;
    5. the word “person” includes a corporation; and
    6. headings are inserted for ease of reference only.
  1. General Contractual Provisions
    1. The Licensee must not assign, sub-licence or otherwise deal in any way with any of its rights under the Agreement without the prior written consent of the Licensor which will be at the Licensor’s absolute discretion.
    2. Nothing contained in this Agreement creates any relationship of partnership or agency between the Parties.
    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.
    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.
    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 Party.
    6. This Agreement may only be amended by a document signed by both Parties.
    7. A provision of, or a right made under this Agreement cannot be waived or varied except in writing signed by the person to be bound.
    8. This Agreement may be executed in counterparts which will be taken together to constitute one document.
    9. A Party will not be responsible for a failure to comply with its obligations under this Agreement to the extent that the failure is caused by a Force Majeure Event provided that the Party affected by the Force Majeure Event keeps the other Party closely informed in such circumstances and uses reasonable endeavours to rectify the situation.
    10. Without limiting any other rights to terminate this Agreement, if a Force Majeure Event affects a Party’s performance under this Agreement for more than thirty (30) consecutive days then the other Party may immediately terminate this Agreement by written notice.
    11. If under the provisions of this Agreement or under any notice or demand, anything is required to be done on a day which is not a Business Day, the day or the last day for compliance is deemed to be the immediately following Business Day.
  2. Applicable Law and Jurisdiction

This Agreement is governed by and construed in accordance with the laws applicable in the Jurisdiction, and each Party submits to the non-exclusive jurisdiction of the courts and tribunals of the Jurisdiction and waives any right it might have to claim that those courts and arbitration tribunals are an inconvenient forum.

 

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