ADPRO Video Central Gold
1. Grant of license
Subject to this agreement, Xtralis Pty Ltd grants the Licensee a non-transferable, non-exclusive licence to use the Software and Documentation for its internal business purposes in accordance with the terms of this agreement.
2. Restrictions on use
The Licensee must:
(a) only use the Software in conformity with:
(i) all applicable laws, regulations, guidelines and decisions of judicial or regulatory bodies;
(ii) any patent or other proprietary rights of third parties; and
(iii) and as envisaged by the Documentation and this agreement;
(b) not copy all or part of the Software or Documentation, or allow all or part of the Software or Documentation to be copied (other one copy of the Software for backup purposes), without obtaining Xtralis's prior written permission;
(c) not publish, distribute or commercialise all or part of the Software or Documentation, or any adaptation, modification or derivative of the Software or Documentation;
(d) not sell, rent, lease, sub-license, assign or transfer all or part of the Software or Documentation or any of its rights under this agreement;
(e) not use the Software or the Documentation for the benefit of any third party, or disclose the Software or the Documentation to any third party, except with Xtralis's prior written consent;
(f) not modify, adapt, reverse engineer, decompile, disassemble the Software or Documentation or create derivative works based on the Software or Documentation (other than to the extent permitted by applicable copyright laws); and
(g) comply with any reasonable directions of Xtralis Pty Ltd from time to time in relation to the installation or use of the Software and the Documentation.
3. Intellectual property
3.1 Licensor IP
All Licensor IP, including but not limited to any images, audio, video and text in the Software, is owned by or licensed to Xtralis Pty Ltd, and no Licensor IP is transferred to the Licensee under this agreement.
3.2 Proprietary Markings
The Licensee must not alter or remove any notices of proprietary rights, any rights management information or any serial numbers appearing on, attached to or incorporated in Xtralis Pty Ltd IP or any copies thereof, and must not use or attempt to register any trademark, trade name, business name or company name which is confusingly similar to any trademark or trade name of Xtralis Pty Ltd.
The Licensee must comply, at all times, with any terms and conditions relating to the Third Party Material notified to the Licensee by Xtralis Pty Ltd and/or the third party supplier of that Third Party Material ('Third Party Licence Terms').
4. Back up and security of data
It is the Licensee's responsibility to:
(a) perform regular backups of data and to store these; and
(b) provide contingency plans for the event of a failure of any sort (eg: fire, flood, and theft);
and Xtralis Pty Ltd has no liability (including for negligence) for any loss whether direct or indirect, that could have been prevented by the Licensee performing the above responsibilities, or which occurs as a consequence of inadequate back up, computer viruses or the ongoing functions of computer hardware (including backup hardware), whether supplied by Xtralis Pty Ltd or any other supplier.
5. Exclusions and Limitations
The Licensee acknowledges that:
(a) it has selected the Goods from a range of products and has satisfied itself that the Goods meet the Licensee's requirements;
(b) no oral or written information, representation or advice given by or on behalf of Xtralis Pty Ltd, other than as contained in this agreement, creates a warranty or in any way increases the scope of this agreement; and
(c) unless expressly agreed otherwise in writing, the Licensee has not relied on any information, representation or advice given by or on behalf of Xtralis Pty Ltd in selecting the Goods; and
(d) Xtralis Pty Ltd makes no representation that the Goods conform to country, state or local laws, ordinances, regulations, codes or standards (except as may otherwise be agreed to in writing by Xtralis Pty Ltd) and the Licensee is responsible for complying with all local laws relating to use of the Goods at its own cost.
5.2 Exclusion of Implied Terms
Xtralis Pty Ltd excludes from this agreement all conditions, warranties and liabilities implied or imposed by law or custom except any liability or implied condition or warranty the exclusion or limitation of which would contravene any statute or cause any part of this clause 5 to be void ('Non-Excludable Condition').
5.3 Non - Excludable Conditions
To the extent permitted by law, Xtralis's liability for any breach of any Non-Excludable Condition is limited to:
(a) in the case of services, the resupply of the services or the cost of having the services supplied again (at Xtralis's option); and
(b) in the case of goods, the lowest of the cost of replacing the goods, acquiring equivalent goods or having the goods repaired.
5.4 Exclusion of liability
To the extent permitted by law, Xtralis Pty Ltd excludes all liability (including liability for negligence) for:
(a) any indirect or consequential expenses, losses, damages or costs (including, without limitation, loss of profits, loss of revenue, loss of or damage to data, failure to achieve anticipated savings or benefits, and any third party claims) incurred by or awarded against the Licensee under or in any way connected with this agreement or the use of the Software or Documentation; and
(b) the operation or performance of, and any expenses, losses, damages or costs suffered or incurred by the Licensee as a result of its use of, any Third Party Material.
5.5 Limitation of liability
To the extent permitted by law, Xtralis Pty Ltd limits its total aggregate liability (including liability for negligence) for any damage arising under or in any way connected with this agreement or the use of the Software to the total sales price of the software.
The Licensee indemnifies Xtralis Pty Ltd against all expenses, losses, damages and costs (on a solicitor and own client basis) incurred by or awarded against Xtralis Pty Ltd arising directly or indirectly from or in relation to:
(a) any use of the Software not in compliance with this agreement;
(b) any breach of any Third Party Licence Terms by the Licensee;
(c) the Licensee's infringement of Xtralis's Intellectual Property rights;
(d) the Licensee's negligent acts or omissions; and/or
(e) any other use or misuse of the Software by the Licensee.
7. Term and termination
This agreement commences on the Effective Date and continues until terminated in accordance with this agreement.
7.2 Termination for Convenience
(a) Without prejudice to any other rights or remedies, Xtralis Pty Ltd may terminate this agreement without cause on 90 days' written notice to the Licensee.
(b) The Licensee may terminate this agreement without cause on 30 days' written notice to Xtralis Pty Ltd.
8. Force Majeure
Neither party will be liable for any delay or failure to perform its obligations pursuant to this agreement (other than on obligation to pay money) if that delay is due to Force Majeure. If a delay or failure of a party to perform its obligations is caused by or anticipated due to Force Majeure, the performance of that party's obligations will be suspended. Either party may terminate this agreement if a Force Majeure persists for a continuous period of 90 days.
Part or all of any provision of this agreement that is illegal or unenforceable may be severed from this agreement and the remaining provisions will continue in force.
9.2 Entire Agreement
This agreement (including any additional terms notified to the Licensee by Xtralis Pty Ltd) constitutes the entire agreement between the parties and supersedes any prior representations, warranties, understandings or agreements that relate to the same subject matter.
This agreement may only be amended by agreement in writing between the parties.
9.4 Governing Law
This agreement is governed by the laws of the State of Victoria, Australia, and the parties submit to the non-exclusive jurisdiction of the courts in that State.