Software Licence & Support Agreement

“Commencement Date” means date set out in Item 1 of the Schedule date of this Agreement;

“Access Date” means the date the Licensor grants the Customer access to the Software;

“Licence Fees” means the fees specified in Item 4 of the Schedule;

“Licence Plan” means the level of service purchased by the Customer in respect of the Software as specified in Item 4 of the Schedule;

“Projects” means each use case of the Software by the Customer as granted to it under the requisite Licence Plan;
“Purpose” means the purpose described in Item 5 of the Schedule;

“Software” means the software described in Item 4 of the Schedule together with all additions, amendments, modifications and improvements supplied by the Licensor pursuant to this Agreement and all systems documentation relating thereto.

1. The Licensor grants to the Customer a non-exclusive, non-transferable licence to use the Software solely for the Purpose prescribed in the Schedule for the duration of the Term;
2. The Customer acknowledges that it and its employees, servants and agents have no right, title or interest in any part of the Software other than as specified in this Agreement or as agreed in writing between the parties.
3. The Customer may only use the Software in accordance with any normal operating procedures set out in any documentation provided as part of the Software and any modifications to these operating procedures as notified to the Customer by the Licensor or as otherwise provided for in this Agreement.
4. The Customer acknowledges and agrees that this Licence gives the Customer no right to use, supply or licence the Software to, for or on behalf of a third party.
5. If the Licensor provides to the Customer any upgrade, improvement, variation, modification, or one or more new releases to or of the Software, this Agreement and any other agreement between the parties relating to the Software will apply to those upgrades, improvements, variations, modifications and new releases as if the same were named as the Software under this Agreement.
6. The Customer acknowledges that usage and access of the Software will be via either the Software web address or the Software mobile device App. In this instance, the Customer’s use of the App will allow mobile connectivity in respect of the Software so that the Customer can, amongst other things, upload site photos, employee cards and initiate chat facilities in a remote fashion and without the need of a desktop computer.
7. To avoid any doubt, the Customer has no right to download, reproduce or copy the Software or App (or parts thereof) onto its own or any third-party computer, phone or other machine.

1. Notwithstanding anything to the contrary herein, the Licensor hereby provides to the Customer a 30-day licence during which the Customer may utilise the Software for the Purpose without charge (“Trial Period”).
2. The Customer shall be provided with use of the Software in respect of a sample project only and will not be fully functional as otherwise contemplated under this Agreement. Accordingly, support in respect of the Trial Period will be limited to reasonable video and/or physical demonstrations at dates, locations and times suitable to Licensor. The Customer acknowledges that any further support during the Trial Period shall be the subject of further agreement.
3. To avoid doubt, the Customer hereby acknowledges that the Software will not be fit for purpose in respect of its utilisation for real-life projects during the Trial Period as such usage is provided by Licensor as to allow the Customer to gain an understanding of the functionality and abilities of the Software in respect of a virtual project only.
4. The Customer acknowledges and agrees that all representations, warranties, obligations, rights granted and indemnities provided by it to the Licensor hereunder shall apply to the Trial Period.
5. If, prior to or at the date of the completion of this Trial Period:
   
   1. the Customer chooses not to continue with the Software: this Agreement shall terminate 14 days following Licensor’s receipt of such notice with no charge to the Customer in respect of such Trial Period use – it being noted that such notice must be provided to the Licensor prior to the end of the Trial Period;
   2. the Customer chooses to continue with the Software, the Term of this Agreement shall continue on the terms hereof provided that all payments are to commence on from the date of the end of the Trial Period – it being noted that no notice must be provided to the Licensor in this instance.

1. The Customer acknowledges and agrees that:
   
   1. this Agreement is a licence agreement only and does not constitute or effect the sale or transfer of title to the Customer of the intellectual property comprised in the Software;
   2. the Licensor may at any time and in its absolute discretion, reproduce, publish, sell, distribute, licence and in any other way disclose the Software to any third party;
   3. the licence is applicable only in relation to the use of the Software in respect of the number of Projects provided under its Licence Plan;
   4. nothing in this Agreement conveys to the Customer any right, title or interest in the Software except those expressly granted pursuant to this Agreement;
   5. all communication media and systems associated with the Software, the Licensor’s Website or Apps and any underlying services remain the Licensor’s property;
   6. by using the Software, the Customer hereby acknowledge that it does not obtain any rights for the infrastructure, content or software associated with the Software; and
   7. all intellectual property rights created by this Agreement are the sole property of the Licensor.
2. Nothing in this Agreement shall be taken to confer on the Customer the right to:
   
   1. copy or reproduce the whole or any part of the Software for any reason whatsoever;
   2. copy or reproduce the whole or any part of the systems documentation for the Software for any reason whatsoever except that the Customer may make a reasonable number of copies of the systems documentation for its own internal use of the Software, provided that all copyright notices in respect thereof are also reproduced;
   3. merge, modify, adapt, translate, reverse, compile or disassemble the Software or change the configuration of the Software;
   4. permit any person to use the Software other than the Customer and its officers and employees; or
   5. directly or indirectly assign, transfer or charge in any way to a third party this Agreement or the licence hereby granted or the Software.

1. The Customer acknowledges that Licensor requires the Customer’s registration details  in respect of Ancillary Software to ensure integration of the Software’s processes with the same in order to fulfil the Purpose.
2. For the purposes of this Clause 3.5, the Customer agrees to do the following in respect of its third party Xero platform and subscription as to allow the Software to integrate with its components to achieve the Purpose:
   
   1. invite Licensor’s customer initiation team via an automatic Xero user invite to allow the Software to, amongst other things, share payroll time cards and directly manage employee payments;
   2. enable project invoice and expenses (costs) relating to the specific Project to be integrated to the Software for allocation and real-time cost tracking; and
   3. reporting into Ancillary Software to ensure integration of Software’s processes.
3. To avoid doubt, the Purpose cannot be fulfilled without such information and any delay, error or non-conformity with the delivery of such details to Licensor shall be sole responsibility and expense of the Customer.

1. The Customer must pay the Licence Fee and Support Fees as follows:
   
   1. the first payment of the Licence Fee applicable to its relevant Licence Plan: on the Commencement Date;
   2. thereafter the applicable Licence Fees: on the first day of each succeeding calendar month or week (the frequency of which is to be agreed between the parties, however the yearly total of such Licence Fees paid by the Customer must not be less than the total noted under the relevant Licence Plan);
   3. Support Fee: to be agreed between the parties under separate support services agreement; and
   4. the Licence Fee and the Support Fees shall be paid by the Customer by wire transfer into such bank account as the Licensor may from time to time nominate.
2. As to enable mobile device usage of the Software, the Customer will be required to purchase the relevant App from the Apple App Store via a one-off payment.
3. In addition to the above, for the duration of the Term, Customer grants the Licensor a non-exclusive right to display Licensor’s signage and branding at the Customer’s physical work-site where the forms, dimensions and location of such signage is to be mutually agreed between the parties.

1. The Licensor has the right to review and adjust the Support Fees by 1 months’ notice to the Customer.
2. The Customer and the Licensor may from time to time agree to changes to the product configuration and/or licensing structure of the Software, and the Licensor shall notify the Customer of any resulting changes to the Fees.

1. The Licensor will use all best endeavours to correct any reported faults as soon as reasonably practicable.  However, the Licensor do not give any undertakings that the Software will be free of minor faults.
2. The Customer further accept that failures of the Software from technical fault, project contractual management faults and/or disputes or Customer errors or omissions may occur from time to time and that such failures will not constitute a breach of this Agreement unless they continue for a period in excess of 21 days. To avoid doubt, any such faults shall be dealt with by Licensor in accordance with its standard Customer support terms and conditions (available from the Software Website). Faults cannot be repaired if circumstances beyond the Licensor’s control prevent their repair. We shall use reasonable endeavours to ensure uptime of the Software.
3. Accordingly, Licensor reserves the right to:
   
   1. suspend the (use of the) Software for operational reasons such as maintenance, upgrades or to carry out technical alterations and repairs to our equipment and/or the Software or because of an emergency;
   2. before such suspension, we shall make reasonable efforts to give the Customer as much notice as possible and will restore the Software as soon as reasonably practicable and where such restoration is within our control.
   3. For operational reasons, change the technical specification of the Application or amend or improve the technical specifications where such changes will not detrimentally impact on the Customer’s use of the Software;
4. The Customer hereby acknowledges that:
   
   1. it must obtain access to the internet, either directly or through devices that access web-based content, and pay any respective service fees associated with such access.  In addition, the Customer must provide its own equipment necessary to make such a connection to the internet;
   2. data and information are sent via major telecommunications companies and/or its internet services providers in respect of the Software and the Licensor can therefore only influence the receipt with respect to transmission of such information within the technical constraints imposed by the abovementioned providers;
   3. access to the internet and other communication media is associated with risks including but not limited to authentication, data security, privacy, availability of services and reliability of transmission.
   4. the Licensor will use all reasonable endeavours to keep the Customer’s data and interactions with the Software secure, however, the Licensor does not guarantee such security and the Customer hereby acknowledges that there can be no guarantee of security on the internet.  The Customer hereby agrees to bear full and exclusive responsibility arising from such risks and consequences of the usage of the Software and fully indemnifies the Licensor in connection herewith, however such an indemnity shall not apply in cases in which we have not employed standard industry protocols in respect of the security of such data.

The Customer is liable for any duty or tax, including any goods and services tax (GST) (but excluding income tax), payable for any goods or services supplied under this Agreement provided that the Licensor provides the Customer with a tax invoice which complies with GST law. Further, to avoid doubt, any and all income tax and/or superannuation liabilities (and other similar taxes and levies) owed by the Customer to their staff are the sole responsibility of the Customer and the Customer hereby indemnifies the Licensor in respect of any liability arising in connection with such matters.)

The Licensor makes no warranty, express nor implied, in relation to the Software or its suitability for purpose, and subject to clause 5.3, all other conditions and warranties implied by statute or otherwise are expressly negatived and excluded, or, in the case of non-excludable warranties or conditions, limited to the maximum extent permitted by the relevant statute or otherwise. In addition, the Licensor does not warrant that:

1. the Software is error free;
2. the use of the Software will be uninterrupted;
3. the Software will meet the Customer’s requirements; or
4. the Software will provide any function not designated in any systems documentation or manuals accompanying the Software.

The Customer assumes the entire risk of using the Software and acknowledges and agrees that the Licensor will not be bound by any representations, promises or inducements in respect of the Software other than as set out in or referred to in this Agreement or in any subsequent written variation thereof.

In the event that this Agreement constitutes a supply of goods or services to a consumer as defined in the Australian Consumer Law or any equivalent statute or territory legislation as amended (the “Act”), nothing contained in this Agreement restricts or modifies in relation to this Agreement and/or the goods or services to be supplied hereunder any condition, warranty, right or remedy which pursuant to the Act applies to this Agreement or is conferred on the Customer, provided that to the extent that the Act permits the Licensor to limit its liability for breach of condition or warranty implied by the Act, then the Licensor’s liability for such breach including any consequential loss which the Customer may sustain or incur is limited to:

1. in the case of goods, any one or more of the following acts as determined by the Licensor:
   
   1. the replacement of the goods or the supply of equivalent goods; or
   2. the repair of the goods; or
   3. the payment of the cost of replacing the goods or acquiring equivalent goods; or
   4. the payment of the cost of having the goods repaired.
2. in the case of services any cost of the following as determined by the Licensor:
   
   1. the supplying of the services again; or
   2. the payment of the cost of having the services supplied again.

1. The warranty set out in clause 5.1 is void to the extent that failure of or defects in the Software are caused by any of the matters set out in clause 6.1 or to the extent that failure or defect is caused by:
   
   1. accident;
   2. the Customer’s abuse or misapplication of the Software;
   3. the Customer’s failure to follow any instructions provided by the Licensor;
   4. any additions, amendments, modifications or improvements to the Software made without the written approval of the Licensor;
   5. the use of the Software with any databases, operating systems or hardware other than as approved in writing by the Licensor from time to time; and
   6. damage to the Software from causes external to the Software and occurring subsequent to delivery of the Software to the Customer.

1. The Customer hereby warrants and undertakes that it:
   
   1. has full power and authority to enter into this Agreement, to perform the terms hereof and is free of any and all liens, claims or encumbrances of every kind, nature and description;
   2. will comply with all applicable laws, rules and regulations (including codes of practices and such guidelines as may be issued by regulatory authorities) of whatever jurisdiction relating to the Software and its use and all advertising, consumer protection, product liability data protection and privacy laws.   Parties acknowledge that this warranty is not in respect of data that is controlled by us nor any actions made by us that are in breach of this Agreement
   3. shall remain responsible for the creation, maintenance and control of all data and information and the uploading of such information via the Software
   4. shall be solely responsible for the data and information that is delivered to the Software or received or processed by the Licensor.
   5. Shall ensure that information or data delivered to the Software or Licensor not be in breach of confidence, copyright, privacy or any other rights

1. The Customer indemnifies the Licensor against all damages, losses, costs and expenses (including legal costs on an indemnity basis and whether incurred by or awarded against the Licensor) incurred by the Licensor arising out of:
   
   1. any breach by the Customer of its obligations under this Agreement; and
   2. the negligence of the Customer, its agents, employees or subcontractors or of any other person for whose acts the Customer is vicariously liable.
2. The parties agree that in no event shall the Licensor be liable for any special, indirect, incidental or consequential loss or damages.
3. The Customer shall promptly notify the Licensor in writing of any actual, suspected or anticipated infringement of the Licensor’ intellectual property rights coming to its attention.

1. The Licensor must at its expense and as soon as reasonably practical, correct any inherent defect in the Software which is notified to it within 3 months from the Access Date. Notwithstanding the foregoing, the Licensor will not be liable to correct any defect in the Software if the defect:
   
   1. does not result in the performance of the Software significantly deviating from the functional specifications or the specifications set out in the Software (as the case may be);
   2. is the result of alterations, modifications, repairs or maintenance of the Software made by a person other than the Licensor or a service provider authorized by the Licensor;
   3. is the result of catastrophe, accident, neglect, misuse or modification of the Software without the written permission of the Licensor or negligence by the Customer;
   4. is the result of causes external to the Software such as, but not limited to, failure of or a defect in the Customer’s hardware or faulty electric power, or as a result of any causes other than ordinary use of the Software;
   5. is the result of unauthorized access or use of the Software;
   6. is the result of use of the Software in combination with equipment, programs or services not authorised in writing by the Licensor;
   7. is the result of the Customer’s failure to provide suitably qualified and adequately trained operating and programming staff for the operation of the Software;
   8. is the result of use of the Software other than in the operating purpose recommended by the Licensor or other than in accordance with the Licensor’s directions, any Software manual, systems documentation or the Licensor’s operating instructions;
   9. is the result of changes or updates to Ancillary Software or other external coding matters outside of the Licensor’s control results in a failure of defect in respect of the Software or its suitability for the Purpose; or
   10. is the result of or related to a failure of the Customer to meet its obligations under this Agreement or any other agreement relating to the Software provided that such failure is not the direct result of a genuine dispute arising under this Agreement.

The Licensor’s obligation to correct inherent defects in the Software in accordance with clause 6.1 is the Customer’s sole remedy in relation to such defects.

1. The Customer acknowledges that the Software is a trade secret of the Licensor and that irreparable harm may be caused to the Licensor by the unauthorised disclosure of the Software notwithstanding that the Licensor may have licensed or otherwise disclosed the Software to other customers or potential customers of the Licensor.
2. The Customer accordingly agrees to keep confidential all the Software and not to divulge, provide or otherwise make available the Software or any additions, amendments, modifications or improvements thereto or rewrites thereof in any other code in whole or in any part whatsoever or any data or information with respect to the Software to any person other than the Customer’s employees for the specific purpose of performing work for the Customer.
3. The Customer agrees to hold in the strictest confidence all other material and information which is or could reasonably be regarded by the Licensor as being of a confidential nature, supplied by the Licensor to the Customer or of which the Customer becomes aware in the course of its dealings with the Licensor and not to make use thereof other than in the course of performing its obligations or exercising its rights under this Agreement.

1. The Customer agrees to do all such best practice methods and to take all such best standard steps as are necessary to prevent unauthorised use and/or copying of the Software or any additions, amendments, modifications or improvements thereto or rewrites thereof in any other computer language in whole or in any part whatsoever or any data or information with respect to the Software.
2. The Customer will not use the Software or any part thereof to provide a bureau service to or for other persons.
3. The Customer agrees to do all such reasonable things and to take all such reasonable steps as are necessary to prevent unauthorised use and/or copying of the Software.
4. Nothing in this Agreement confers on the Customer the right to:
   
   1. copy or reproduce the whole or any part of the Software for any reason whatsoever;
   2. copy or reproduce the whole or any part of the systems documentation for the Software for any reason whatsoever except that the Customer may make a reasonable number of copies of the system documentation for its own internal use of the Software, provided that all copyright notices in respect thereof are also reproduced;
   3. merge, modify, adapt, translate, reverse, compile or disassemble the Software or change the configuration of the Software;
   4. permit any person to use the Software other than the Customer and its officers, employees, consultants and contractors; or
   5. directly or indirectly assign, transfer or charge in any way this Agreement or the licence hereby granted or the Software to a third party.

1. Online guides and manuals;
2. Email support service; and
3. Discretionary face to face support service.

1. when logging a support email, provide the following information with regard to the problem:
   
   1. all error messages that were displayed in regards to the problem including message numbers and text;
   2. in what form/panel/screen/program/process the problem occurred; and
   3. contact information for response including e-mail address;
   4. relevant company and project number(s); and
   5. screenshots (if applicable) relating to the problem.
2. provide internet terminal access through “TeamViewer” or similar remote terminal access software in respect of problems related to login/application or other issues derived outside of the App or Software;
3. provide App or Software remote access in respect of problems or other issues derived inside of the App or Software;
4. check e-mail on a regular basis for responses;
5. ensure that documentation is distributed and read by appropriate personnel prior to the loading of a new release.

1. correct errors or defects caused by operation of the Software in a manner other than that specified by the Licensor;
2. correct errors or defects caused by modification, revision, variation, translation or alteration of the Software not authorised by the Licensor;
3. correct errors or defects caused by the use of the Software by a person not authorised by the Customer;
4. correct errors caused by the failure of the Customer to provide suitably qualified and adequately trained operating and programming staff for the operation of the Software;
5. train operating or programming staff;
6. rectify operator errors;
7. rectify errors caused by incorrect use of the Software;
8. rectify errors caused by a fault in the Customer’s hardware;
9. diagnosis or rectification of faults not associated with the Software;
10. supply or maintain accessories, attachments, supplies, consumables or associated items, whether or not manufactured or distributed by the Licensor; or
11. correct errors arising directly or indirectly out of the Customer’s failure to comply with this Agreement or any other agreement between the parties relating to the Software.

1. the Customer breaches any of the restrictions on use or disclosure contained in this Agreement;
2. the Licence Fees, Support Fees or any other sum due and payable to the Licensor by the Customer remains outstanding for more than 14 days after service of a notice on the Customer specifying the sum due and requiring payment; or
3. the Customer breaches any provision of this Agreement and fails to rectify such breach within 14 days of being required in writing to do so (but this sub-clause does not apply to breaches referred to in sub-clause 9.1.1).

1. Immediately upon becoming aware of the termination of this Agreement the Customer must destroy the Software (if applicable) and all related original and copy documentation and preclude access to the Software and must provide the Licensor with a document, in a form of a statutory declaration, certifying that to the best of its information and belief that the Software and access to the same (and any printed matter relating thereto) have been destroyed.
2. To avoid doubt, upon termination, the Customer shall have no right to any refund of monies paid by it in respect of this Agreement from the date of such termination.