PLEASE READ THIS SOFTWARE LICENCE AGREEMENT CAREFULLY BEFORE DOWNLOADING OR USING THE SOFTWARE. BY COPYING, INSTALLING OR USING ALL OR ANY PORTION OF THE SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT IS ENFORCEABLE AGAINST YOU, AN ENTITY OR SIMILAR (HEREAFTER "YOU") THAT OBTAINED THE SOFTWARE AND/OR ON WHOSE BEHALF IT IS USED.
The Licensor is Funnelback Pty Limited (Australian Business Number 34 116 105 296) ("Funnelback"), which, together with its third party suppliers, own all Intellectual Property in the Software. The Software is licenced, not sold.
1. Definitions & Interpretations
(a) Commencement Date means the date on which the Software was purchased or was installed into Your system, whichever occurs first.
(b) Confidential Information means information of a Party that:
(i) is by its nature confidential; or
(ii) is designated by that Party as confidential; or
(iii) the other Party knows or ought to have known is confidential,
including, without limitation, information relating to:
(iv) the source code, design, specification and content of the Software; and
(v) the personnel, policies or business strategies of Funnelback; and
(vi) the terms upon which the Software is being licenced under this Agreement.
but does not include
(vii) information already known to the receiving party at the time of disclosure by the other party; or
(viii) information in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under this agreement;
(c) Documentation means any technical and user information relating to the Software provided by Funnelback.
(d) Instance means a single installation of the Software on a system capable of running it.
(e) Intellectual Property includes copyright, trade mark, design, patent, semiconductor or circuit layout rights, trade, business or company names, or other proprietary rights, or any rights to registration of such rights, whether created before, on or after the commencement date of this Licence;
(f) Licence means the licence of Software granted pursuant to this Agreement.
(g) Licence Fee means the fees payable by You to Funnelback or a Funnelback Authorised Representative for the use of the Software as granted pursuant to this Agreement.
(h) Related Bodies Corporate means (i) where the Software is installed in Australia, the United States of America, the United Kingdom or New Zealand, the same meaning as in corporate law in operation in the respective jurisdiction in which the Software is installed, or (ii), where the Software is not installed in Australia, the United Kingdom or New Zealand, the same meaning as in corporate law in operation in Australia.
(i) Software means the Funnelback software, without limitation all files comprising the Funnelback program on which it functions as per the Documentation, including updates as may be issued from time to time.
(j) Funnelback Authorised Representative means a party with written authorisation by Funnelback to market and sell the Software.
(k) Third Party means any party other than You or Funnelback and includes (i) Related Bodies Corporate, and (ii) parties having a different Australian Business Number, UK Registered Number or New Zealand Company Number to You (if applicable).
(l) You means one of either (i) the individual, (ii) an entity or (iii) similar, but does not include Related Bodies Corporate, who has purchased the Software from Funnelback or a Funnelback Authorised Representative and has installed the Software into their system in accordance with the terms of the Licence granted in this Agreement.
1.2 Presumptions and interpretation
Unless the context otherwise requires a word which denotes:
(a) the singular denotes the plural and vice versa; and
(b) any gender denotes the other genders; and
(c) a person includes an individual, a body corporate, and a government.
Unless the context otherwise requires a reference to
(d) any legislation includes any regulation or instrument made under it and where amended, re-enacted or replaced means that amended, re-enacted or replacement legislation; and
(e) any other agreement or instrument where amended or replaced means that agreement or instrument as amended or replaced; and
(f) a group of persons includes any one or more of them; and
(g) a thing or amount is a reference to the whole and each part of it.
2. Licence Grant
2.1 Subject to the terms of this Agreement, Funnelback grants You:
(a) a limited, non-exclusive and non-transferable licence to use the Software in the manner and for the purposes described in the Documentation;
(b) the right to install one Instance of the Software in a production environment, together with one Instance of the Software in test and/or development environments;
(c) the right to make a reasonable number of backup copies of the Software, provided Your backup copies are not installed or used for other than archival purposes.
(d) the right to use the Documentation.
3.1 This Agreement and the Licence granted herein commences on the Commencement Date.
3.2 Subject to the terms of this Agreement, the Licence shall continue until Termination.
4. Conditions of Licence
4.1 You must not, and must not allow or cause any other person, entity or similar to:
(a) lease, licence, disclose, distribute, provide or otherwise make available all or any part of the Software or Documentation to any Third Party, except as otherwise expressly permitted in this Agreement; or
(b) copy, in whole or in part, the Software or Documentation, modify the Software, reverse compile or reverse assemble all or any portion of the Software or rent, lease, distribute, sell or create derivative works of the Software; or
(c) use the Software or Documentation to develop, enhance, modify, market or demonstrate other products; or
(d) alter, change, obscure or remove any logo, copyright or other proprietary notices, symbols or labels in the Software or Documentation.
4.2 You must not have received the Software from a party other than Funnelback or a Funnelback Authorised Representative.
4.3 You must immediately notify Funnelback if You become aware of any breach of this agreement and must give Funnelback all necessary assistance in connection with any proceedings Funnelback may institute relating to such breach.
4.4 This clause will survive the termination of this Agreement.
5.1 You agree to pay the Licence Fee within the terms specified on the invoice received from Funnelback.
5.2 All taxes, duties and government charges imposed or levied in Australia or overseas in connection with this Agreement will be borne by You.
5.3 In relation to taxable supplies made under this Agreement, Funnelback agrees to provide you with a tax invoice in accordance with the tax legislation applicable in the local jurisdiction.
6.1 You acknowledge that Funnelback retains ownership of the Software and Documentation, and, together with its third party suppliers, all proprietary rights in the Software and Documentation.
6.2 You agree all Intellectual Property Rights in the Software and Documentation are and shall remain the exclusive property of Funnelback and any of its third party suppliers.
6.3 Unless expressly permitted in this Agreement, You must not use any of Funnelback's or its third party suppliers' intellectual property without Funnelback or its third party suppliers' prior written consent.
6.4 Nothing in this Agreement should be construed as transferring any aspects of such rights mentioned in this clause to You or any Third Party. Funnelback reserves any and all rights not expressly granted herein.
7.1 You agree not to disclose Funnelback's Confidential Information.
7.2 You will not be in breach of clause 7.1 in circumstances where You are legally compelled to disclose Funnelback's Confidential Information.
7.3 You will take all reasonable steps to ensure that its employees and agents, and any subcontractors engaged for the purposes of this Agreement, do not make public or disclose the other party's Confidential Information.
7.4 This clause will survive the termination of this Agreement.
8.1 Funnelback may from time to time make available updated versions of the Software. This Agreement does not create an obligation for Funnelback to provide You with updated versions of the Software or support and upgrade services relating to the Software.
9.1 This Agreement and the Licence granted herein shall terminate upon the happening of any of the following events:
(a) You fail to comply with any of the terms and conditions of this Agreement, including the non-payment of Charges described in Clause 5;
(b) You have received the Software from a party other than Funnelback or a Funnelback Authorised Representative;
(c) Funnelback provides You with another licence, and You agree to be bound by its terms; or
(d) You become liquidated, dissolved, bankrupt or insolvent, whether voluntarily or involuntarily; or
(e) You and Funnelback agree, in writing, to terminate this Agreement.
9.2 On termination, You must immediately cease use of the Software and return to Funnelback all copies of the Software, all revisions, enhancements and upgrades of the Software and the Documentation. Alternatively, You must destroy such Software, copies, revisions, enhancements and upgrades and must certify in writing to Funnelback that they have been destroyed.
9.3 On termination, any amounts paid by You to Funnelback are non-refundable in their entirety.
10.1 Funnelback warrants that as at the Commencement Date it has the rights, power and authority to enter into this Agreement and to grant the Licence.
10.2 Funnelback warrants that the Software will operate substantially in accordance with the Documentation. If the Software fails to operate substantially in accordance with the Documentation, Funnelback will supply another copy of the Software at its cost.
10.3 Except as expressly warranted above, Funnelback does not warrant or make any representations:
(a) that the Software is suitable for Your use, or is fit for any other purpose; or
(b) that operation of the Software will be-uninterrupted or that the Software is error-free; or
(c) regarding the results of any use of the whole or any part of the Software; or
(d) as to the accuracy, reliability or content of any data, information, service or goods obtained through any use of the whole or any part of the Software.
11.1 You hereby agree to indemnify, defend and hold Funnelback, its directors, officers, employees and affiliates harmless from and against any and all liability and costs, including reasonable legal fees incurred, in connection with this Agreement.
11.2 This clause will survive the termination of this Agreement.
12. Exclusions and Limitation of Liability
12.1 Funnelback makes no express or implied warranties under this Agreement, except under clause 10 (Warranty).
12.2 To the extent permitted by law, Funnelback excludes:
(a) from this Agreement all conditions, warranties and terms implied by statute, general law, international convention or custom;
(b) all liability to You in contract for consequential or indirect damages arising out of or in connection with this Agreement even if:
- Funnelback knew they were possible; or
- they were otherwise foreseeable
including without limitation, damages for loss of business profits or other pecuniary loss and damages suffered as a result of claims by any Third Party.
(c) all liability to You in contract for direct or consequential or indirect damages arising out of or in connection with the use or inability to use the Software or Documentation including without limitation, damages for loss of business profits or other pecuniary loss and damages suffered as a result of claims by any Third Party; and
(d) all liability to You in negligence or other non-contractual cause of action in respect of which liability can be excluded for acts or omissions of Funnelback, its employees, agents and contractors arising out of or in connection with this Agreement.
12.3 Funnelback's liability to You for breach of
(a) any express provision of this Agreement is limited to the amount paid by You in Licence Fees.
(b) any implied condition or warranty where the exclusion of which would contravene any statute or cause this clause 12 to be void, is limited, at the option of Funnelback, to one or more of the following:
- the replacement of the Software or Documentation
- repair of such Software or Documentation
13. General Terms.
13.1 Governing law
This Agreement shall be governed by, and construed in accordance with the laws of (i) where the Software is installed in Australia, the States of America, the United States of America, the United Kingdom or New Zealand, the corresponding country in which the Software is installed, or (ii) in all other cases, the laws of New South Wales, Australia. The parties agree to submit to the jurisdiction of the courts and tribunals as determined in this clause 13.1.
13.2 Entire agreement
This Agreement constitutes the entire agreement between the parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.
13.3 No reliance on other matters
Each of the parties acknowledges that in agreeing to enter into this Agreement it has not relied on any representation, warranty or other assurance except those set out in this Agreement.
13.4 New Versions of the Agreement
Notwithstanding clause 13.5 below, Funnelback reserves the right to modify this Agreement at any time by providing such revised Agreement to You. Your continued use of the Software shall constitute Your acceptance to be bound by the terms and conditions of the revised Agreement.
13.5 Amendment of Agreement
No amendment to or modification of this Agreement shall be binding unless in writing and signed by both parties.
You must not assign, whether in whole or part, the benefit of this agreement or any rights or obligations hereunder, without the prior written consent of Funnelback.
If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law; that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect.
A waiver by either party in respect of a breach of a provision of this Agreement by the other party shall not be deemed to be a waiver in respect of any other breach and the failure of either party to enforce at any time a provision of this Agreement shall in no way be interpreted as a waiver of such provision.