Terms and Conditions
a. The Licensor (“MDB Consulting”) has the right to license the Software and the Materials.
b. The Licensee (“Company Name”) wishes to use the Software and the Materials.
c. The Licensor has agreed to license the Software and the Materials to the Licensee for the Permitted Purpose and the Licensee accepts the licence on the following terms and conditions.
The parties agree:
1.1 The Licensor grants non-exclusive, non-transferable, revocable licence to the Licensee to Use the Software and Materials for the Permitted Purpose.
1.2 The Licensee may not assign the Licence.
1.3 The Licensee may not sublicense the Licence. The Licensee is not permitted to adapt/modify the code.
1.4 The Licensee is not permitted to reverse engineer, reverse assemble or reverse compile or otherwise endeavour to obtain the source code from the object code. 1.5 The Licensee is limited to the number of concurrent user licences as specified in Part E. If the Licensee wishes to use the Software over this limit, the Licensee agrees to seek the Licensor’s permission in writing and the Licensor reserves the right to charge an additional Licence fee as per the rate at Part D Fees “Licence Fees”. The Licensor will issue the Licensee with a tax invoice for any additional licences at a pro-rata rate.
1.6 The Licensee may not violate any applicable laws, rules or regulations in connection with its use of the software.
1.7 The Licensee may only use the Software on a computer that it owns or controls and as permitted by the Microsoft Services Agreement and, where applicable, the Parallels End User Licence Agreement.
1.8 The Licensee may not use the Software to send automated queries to any website or to send any unsolicited commercial email.
1.9 The Licensee may not use the Software for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any services, product or software offered by The Licensor.
1.10 The Licensee may not use any proprietary information or interfaces of The Licensor or other intellectual property of The Licensor in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the Software.
1.11 The Licensee is entitled to operate a Test, and/or Training version of the Software and any users connected to these do not require separate licences. This access is granted on the condition that the Licensee is not to use the Software in this format to conduct business.
1.12 With permission from the Licensor, the Licensee may run their business across multiple central databases, each with a separate data set. In such instances, the total number of licences connected to any of the databases at a given time must not exceed the number of licences purchased by the Licensee.
Term of Licence
2.1 The parties agree that the Licence is for a minimum period of one (1) year.
2.2 The parties agree that this agreement will automatically renew at the end of each term for a further 12 months unless either party gives the other written notification of termination at least 30 days prior to the end the relevant term.
3.1 The Licensor will provide assistance to ensure that the Software is installed and functioning correctly. It is the Licensee’s responsibility to ensure that the Software has been installed in accordance with instructions provided by the Licensor as well as in line with the Licensee’s local information technology specifications.
3.2 The Licensor will ensure that the Software works correctly as designed and will act upon any reported instance of the Software not working as expected, by working with the Licensee to determine the cause and by applying any data or software fixes as necessary.
3.3 The Licensor will grant the Licensee access to its online Learning Management System which is an online, automated training course covering the main functions of the Software.
3.4 The Licensor will grant the Licensee access to the Software’s online knowledge base which provides instructions relating to the software’s use, functions and common troubleshooting.
3.5 The Licensor grants the Licensee access to a web-based helpdesk system, allowing Licensees to report issues and request help for the duration of the contract. The Licensor provides telephone helpdesk support in Australia and New Zealand during the hours of 8:30am to 5:30pm Australian Eastern Standard Time or Australian Eastern Daylight Time (whichever is current in Victoria, Australia at the time). When unattended, Licensees may also leave voice messages. The Licensor will respond to helpdesk tickets with an active response based on the categorisations outlined in Clause 4.
3.6 The Licensor will update the Software as may, in The Licensor’s opinion be necessary to keep the Software efficient for its users. The Licensor must update the Software at least once per calendar year at no additional charge to The Licensee.
Where a problem with the Software is reported by the Licensee, the Licensor will endeavour to actively address the incident as follows:
Service Level Guarantees
5.1 The Licensor warrants that the Software will have an uptime of 99.5% during the hours of 7am to 7pm Monday to Friday and an uptime of 99% outside these hours.
5.2 The Licensor warrants that it will adhere to the information security requirements in Part G of this agreement.
5.3 The Licensor warrants that it will backup The Licensee’s data according the following schedule:
6.1 The Licensor will convert legacy data from other database systems or sources and import that data into the Software where possible. The Licensor reserves the right to decline provision of a data conversion where the data supplied is not appropriate. Data Conversion services are quoted prior to commencement and are based on the estimated level of effort and the Licensor’s daily consulting rate.
7.1 The Licensee will pay the Licensor the fee as set out in Part D of the Schedule.
7.2 The Licensee will pay the Licensor for any travel costs and expenses set out in Part D of the Schedule.
7.3 The Licensee is not obliged to pay any fee due unless it has received a Tax Invoice from the Licensor.
7.4 Advice of any fee increase will be provided in writing through the renewal invoice at least 30 days prior to implementing such increases.
8.1The Licensor retains ownership of all intellectual property presented in software, reports, training materials and other documents brought to and developed during the course of supporting the Licensee. Disclosure to a third party is prohibited without permission.
8.2 The Licensee must not alter, remove or obscure any trade mark or copyright symbol or legend or other proprietary mark on the Software and the Materials.
8.3 All rights, title, and interests in and ownership of any and all information and data specific to The Licensee, or entered into or via the Software by The Licensee, including all information relating to the employees and clients of The Licensee (“Customer Data”) belong to, and remain with, The Licensee.
9.1 While this agreement is in effect and at all times thereafter, the Parties and their respective officers, employees, agents, and subcontractors will:
treat as confidential all information, data, documents, and materials acquired from, or to which access has been given by, the other Party in the course of, or incidental to this Agreement (“the other Party’s Confidential Information”);
not use, or permit the use of the other Party’s Confidential Information except for the proper performance of its obligations under the Agreement;
not disclose, or permit the disclosure of the other Party’s Confidential Information to any person, corporation, organisation or other entity without first obtaining the written permission of the other Party; and
comply with all reasonable restrictions, procedures, rules, and directions made or given by the other Party, with respect to the safeguarding or ensuring the confidentiality of the other Party’s Confidential Information prior to, during and subsequent to the term of this Agreement.
9.2 Each Party agrees to advise its officers, employees, representatives, agents and subcontractors that they may, during the course of discharging their individual or collective responsibilities under this Agreement, have access to or be in possession of the other Party’s Confidential Information and will advise such officers, employees, representatives, agents and subcontractors of all of the obligations contained in this Agreement pertaining to the protective of Confidential Information and ensure their compliance herewith.
9.3 The Parties agree that Confidential Information will not include any information which:
is or becomes part of the public domain without breaches of this Agreement;
the receiving party receives from an independent third party who is not under an obligation not to disclose it;
is required to be disclosed pursuant to the order of a governmental agency, legislative body, or a court of competent jurisdiction, provided reasonable prior notice of the intended disclosed is provided to the other Party
9.4 The Licensor must ensure that:
all Licensee Customer Data is kept confidential;
The Licensee’s Customer Data is not disclosed to, or accessed by, any unauthorized person or third party or by any person other than for the purposes of complying with its obligations under this Agreement;
Unless The Licensee otherwise requests or consents in writing, any Licensee Data that comes to be in possession of The Licensor is stored in Australia and that no Customer Data is transferred out of Australia;
if The Licensee requests or consents to any transmission of Customer Data outside of Australia, such transmission is only to facilities controlled by The Licensor and that The Licensor and any other person (including any contractor or employee of The Licensor) who has access to Customer Data (“Data Recipient”) complies with the requirements of the Aged Care Act 1997 (Cth), the Privacy Act 1998 (Cth) and the Health Records Act 2001 (Vic) (“Privacy Laws”) as if the Data Recipient was the recipient of the Customer Data in Victoria, Australia and was bound by, and required to comply with, the Privacy Laws in respect of the Customer Data;
it does not do anything that would constitute a breach by The Licensor or the Customer of any law relating to privacy, including any requirement of Aged Care Act 1997 (Cth), the Privacy Act 1998 (Cth) and the Health Records Act 2001 (Vic) .
Licensor Representations and Warranties
10.1 The Licensor represents and warrants that it has the right to license the Software and the Materials to the Licensee.
10.2 The Licensee’s Use of the Software and the Materials will not infringe the rights including Intellectual Property Rights of any third party.
Licensee Warranties, Obligations and Acknowledgements
11.1 The Licensee is not permitted to sell, charge, mortgage or otherwise encumber the Software and/or the Materials in any way.
11.2 The Licensor warrants that the Software and Materials are complete, free from defect and error, are fit for purpose and of merchantable quality.
11.3 The Licensee acknowledges that The Licensor gives no guarantee as to the accuracy or completeness of the Software and the Materials or that they are free from error.
11.4 Should a Licensee require a customisation that will have no benefit to other Licensees, The Licensor may agree to provide changes to the Software at cost to The Licensee. The Licensor will provide a written quotation to The Licensee, and on acceptance, will provide the requested modifications.
Limitation of Liability
12.1 Except in respect of infringement of intellectual property rights and/or breach of confidentiality, each Party (“defaulting Party” must promptly pay to the other Party an amount equal to all expenses and losses incurred by the other Party as a results of:
negligence of Defaulting Party or its employees, agents, or contractors; or
the failure of the Defaulting Party to perform any of its obligations under this Agreement.
Provided however that The Licensee’s maximum cumulative liability for all damages pursuant to this paragraph is limited to forty (40%) percent of the sum of the annual fees paid under this contract.
INTELLECTUAL PROPERTY INDEMNITY.
13.1 The Licensor agrees to indemnify and hold The Licensee harmless from any Losses, which The Licensee may become liable for as a result of, or in connection with, any third party claim asserted against The Licensee to the extent that such claim is based upon a contention that the Software or any portion thereof, used within the scope of this Agreement infringes any valid, registered, enforceable patents, copyrights, trade secrets, trademarks or any other intellectual property rights of any third party, provided that The Licensee has notified The Licensor in writing of such a claim within ten (10) days of a responsible officer of The Licensee becoming aware of such a claim. If the Software or any portion thereof is held to constitute an infringement of another person’s right, and use thereof is enjoined, The Licensor will, at its option and expense, either:
use Reasonable Efforts to obtain for The Licensee the right to continue to use the allegedly infringing Software; or
replace the Software with a non-infringing item or modify it so it becomes non-infringing. Such action by The Licensor will not affect any other right or remedy of The Licensee.
13.2 To the extent that any liability of The Licensor under the Competition and Consumer Act 2010 (Cth) (Australia) or Fair Trading Act 1986 (New Zealand) and cannot be excluded, The Licensor’s liability is limited to replacing the Software and/or Materials.
13.3 To the fullest extent permitted by law, and where The Licensor has exercised duty of care and the loss is not attributable, by an act or omission, by The Licensor, The Licensor excludes all liability for indirect and consequential loss including without limitation the loss or corruption of the Software, loss of revenue, loss of profits, failure to realise expected profits or savings and any other commercial or economic loss of any kind arising from this Agreement.
14.1 The agreement may be renewed for subsequent annual terms.
14.2 The Licensor will send the Licensee a renewal invoice at least one (1) month prior to the renewal date.
14.3 Price increases are applied from the commencement of the renewal date for the duration of the agreed term of the renewal.
Term and Termination
Term of Agreement.
15.1 This Agreement commences on the date the Licensee first accepts it and continues until expired or terminated.
15.2 If the Licensee does not require renewal of the agreement for a further annual term they shall provide at least thirty (30) days’ notice in writing before the expiry.
15.3 At the end of the licensing period all of the Software files must be removed from the User server (if applicable) and each individual computer on which the Software is installed by the Licensee, at the Licensee’s own cost.
15.4 Where the Licensee fails to perform any of its obligations set out in this Agreement, the Licensor reserves the right to immediately terminate the Licence with Notice to the Licensee.
Subject to Clause 14.5, on termination the parties agree that all rights granted to the Licensee under this Agreement will cease immediately and the Licensee will remove the Software completely from the server (if applicable) and each individual computer on which the Software is installed.
The Licensee will provide Notice to the Licensor stating that the Software has been removed from the server (if applicable) and all computers on which the Software has been installed.
16.1 Following termination, the parties agree that the provisions set out in 10 (Licensor Representations and Warranties), 11 (Licensee Warranties, Obligations and Acknowledgements) and 12 (Limitation of Liability) will continue to be binding.
17.1 In the event of a dispute arising between the parties in respect of any right or obligation under this Licence, each party covenants with the other in good faith to take all steps necessary to attempt to resolve the dispute.
17.2 In the event that the parties are unable between themselves to resolve a dispute within a reasonable period having regard to the nature of the Licence and the dispute, then either party may apply to their local State/Territory Alternative Dispute Resolution centre for resolution of the dispute. At the time of the dispute referral, both the Licensee and Licensor will discuss and agree on the treatment of travel costs required for the arbitration or mediation.
18.1 (Law and Jurisdiction) The parties submit to the non-exclusive jurisdiction of the courts of Australia and any courts that may hear appeals from those courts in respect of any proceedings in connection with this contract.
18.2 (Relationship) Nothing in this Agreement will constitute or be deemed to constitute a partnership, joint venture or agency between the parties.
18.3 (Entire Agreement) The terms of this Agreement constitute the entire terms of this Agreement and all understandings, prior representations, arrangements or commitments that are not contained in this Agreement have no effect whatsoever and do not bind the parties.
18.4 (Waiver): No waiver of any right or remedy will be effective unless in writing and shall not operate as a waiver of that right or remedy or any other right or remedy on a future occasion.
18.5 (Implied Terms): Any implied term under law that can be excluded is hereby expressly excluded and no term is to be implied as being a term of this Agreement unless by law it cannot be excluded.
Invoicing and Payments
19.1 The Licensor will issue invoices referencing a valid purchase order. Undisputed invoice amounts must be paid by the Licensee within 14 days of date of receipt of an invoice by the Licensee.
20.1 This Agreement may be amended or varied only by mutual agreement in writing by both Licensee and Licensor.
20.2 Customer amendments to licence number or type
20.3 Request to decrease number of user licences: customers may request to decrease licence numbers or hours of access (see Fees schedule below) at any time. If the request occurs part-way between licence renewals, the resulting fee reduction will be valid from the time of the next licence renewal. If the request occurs at the time of licence renewal and licence has not yet expired, a new invoice for the updated arrangement will be issued.
20.4 Request to increase number of user licences: any increase in licence number will be invoiced on a pro-rata basis and payable upon action.
“Customer Data” means data about The Licensee’s customers
“Agreement” means this licence agreement including the Schedule and any amendments in writing.
“Confidential Information” means all information in whatsoever form that is:
marked or identified as “Confidential”, “Secret”, “Not to be Disclosed” or “Private”;
is designated, described or referred to by the discloser in any document or correspondence as confidential, secret or private or not to be disclosed;
the receiving party knows or ought to know is confidential;
but does not include any information which prior to the date of these Terms & Conditions was lawfully in the public domain or which the discloser has published, circulated or announced publicly or was developed by the receiving party independently of the disclosing party.
“Intellectual Property Rights” means all rights in copyright, circuit layout, designs, trademarks, patents and all other rights in intellectual property as defined in Article 2 of the World Intellectual Property Organisation (WIPO) Convention whether registrable, registered, patentable or not.
“Licence” means the software licence granted by the Licensor to the Licensee in Clause 1.
“Materials” means the documentation provided by the Licensor to the Licensee including the operating manuals and other materials set out in Part A of the Schedule relating to the Software and includes updates to those materials.
“Permitted Purpose” means the purpose set out in Part B of the Schedule.
“Software” means the computer program/s provided by the Licensor set out in Part C of the Schedule and includes any updates provided by the Licensor during the term of these Terms & Conditions.
“Tax Invoice” means an invoice that is GST compliant.
“Use” means use/load, run.
The schedule of fees will be updated annually before 1 July and will be available upon request.
Part A – Materials
All available electronically.
Part B – Permitted Purpose
For use by the licensee only.
Part C – Software
Chintaro, which is a product of MDB Consulting Pty. Ltd.; and Upgrades. Chintaro consists of a central Database and one or more Client(s). Each person in the organisation who wishes to use Chintaro will do so using the Chintaro client software, which connects to the central database.