This Software License Agreement (the “Agreement”) is made and effective [DATE],
(the "Licensor"), a company organized and existing under the laws of the Australia of NSW with its head office located at:
104 / 529 Old South Head Road, Rose Bay, NSW 2029 Australia.
(the "Licensee "), a company organized and existing under the laws of the Australia.
This License Agreement is entered into for the sole purpose of allowing Licensee to use Licensor’s software product (the "Licensor Software") and accompanying Documentation (collectively, the "DayCareApp System").
Licensor hereby grants to Licensee a non-exclusive, non-transferable, revocable license to use the DayCareApp System, including any modified or enhanced versions thereof provided to Licensee by Licensor, at no cost($0) , beginning today.
2. LIMITED WARRANTY
Licensor warrants that it has the right to grant use by Licensee of the DayCareApp System. Licensor makes no other warranties, express or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose.
3. PROPRIETARY RIGHTS
Licensee acknowledges that Licensor retains all right, title, and interest in the DayCareApp System and in all copies thereof, and no title to the DayCareApp System, or any intellectual property or other rights therein, are transferred to Licensee by virtue of this License Agreement other than as specified herein.
Licensee shall not without the express prior written consent of Licensor duplicate, copy or reproduce the DayCareApp System. Licensee agrees not to cause or permit the reverse engineering, reverse assembly or reverse compilation of the Licensor Software, or otherwise attempt to derive source code from the Licensor Software.
5.1 Licensee Confidential Information
Licensee acknowledges that the DayCareApp System is unpublished and contains proprietary and confidential information of Licensor, which Licensor considers to constitute valuable trade secrets. In addition, Licensee may also be provided with or be exposed to confidential information of third parties with which Licensor conducts business. The confidential information of Licensor and third parties is called collectively "Confidential Information." In recognition of the foregoing, Licensee covenants and agrees:
a. That Licensee will keep and maintain all Confidential Information in strict confidence, using such degree of care as is appropriate to avoid unauthorized use or disclosure;
b. That Licensee will not, directly or indirectly, disclose any Confidential Information to any third party, except with Licensor 's prior written consent;
c. That Licensee will not make use of any Confidential Information for its own purposes, such as creation of a competitive product; or for the benefit of anyone or any other entity other than Licensor;
d. That (i) on termination of discussions with Licensor, or (ii) if Licensor is engaged to perform services for Licensee, upon completion of the engagement, or (iii) at any time Licensor may so request, Licensee will deliver promptly to Licensor or, at Licensor 's option, will destroy all memoranda, notes, records, reports, media and other documents and materials (and all copies thereof) regarding or including any Confidential Information which Licensee may then possess or have under its control; and
e. That Licensee will take no action with respect to the Confidential Information that is inconsistent with its confidential and proprietary nature.
Licensee shall be permitted to disclose the Confidential Information only as follows:
a. To its employees and agents ("Employees") having a need to know such information in connection with this License Agreement (and in any event Licensee shall be responsible for all Employees' compliance with the terms of this License Agreement); and
5.2 Licensor Confidential Information
b. If disclosure is required by law, but in such event Licensee shall notify Licensor in writing in advance of such disclosure, and provide Licensor with copies of any related information so that Licensor may take appropriate action to protect the Confidential Information.
For purposes of this License Agreement, Confidential Information shall include, but not be limited to, all business information of Licensor, including the following:
a. All information and data related to the Software and Documentation;
b. All information relating to Licensor 's planned or existing computer systems and systems architecture, including computer hardware, computer software, source code, object code, documentation, methods of processing and operational methods;
c. Confidential information of third parties with whom Licensor conducts business.
Notwithstanding the foregoing, Confidential Information shall not include information that (i) is or becomes generally known to the public not as a result of a disclosure by Licensee, (ii) is rightfully in the possession of Licensee prior to disclosure by Licensor or (iii) is received by Licensee in good faith and without restriction from a third party not under a confidentiality obligation to Licensor and having the right to make such disclosure. Licensee acknowledges that the disclosure of Confidential Information may cause irreparable injury to Licensor and damages which may be difficult to ascertain. Licensor shall, therefore, be entitled to injunctive relief upon a disclosure or threatened disclosure of any Confidential Information, without a requirement that Licensor prove irreparable harm, in addition to such other remedies as may be available at law or in equity. Without limitation of the foregoing, Licensee shall advise Licensor immediately in the event that it learns or has reason to believe that any person or entity which has had access to Confidential Information has violated or intends to violate the terms of this License Agreement.
In addition, Licensee shall not release the results of any evaluation or benchmark of the DayCareApp System to any third party without the express prior written consent of Licensor.
Licensor agrees to defend Licensee from and against any claim or action based on any alleged infringement of any Australian patent, copyright, trade secret or other proprietary right as a result of the use of the System according to the terms and conditions of this License Agreement, and Licensor agrees to indemnify Licensee from any costs and/or damages awarded against Licensee in any such infringement claim or action or settlement thereof; provided that: (i) Licensor is promptly notified in writing of such claim, (ii) Licensee grants Licensor sole control of the defense and any related settlement negotiations, and (iii) Licensee cooperates with Licensor in defense of such claim.
Notwithstanding the foregoing, Licensor shall have no liability to Licensee if the infringement results from:
a. Use of the DayCareApp System in combination with software not provided by Licensor
b. Modifications to the DayCareApp System not made by Licensor, or
c. Use of other than a current release of the DayCareApp System, if such infringement would have been avoided by use of a current Licensor release. The foregoing states the entire liability of Licensor with respect to infringement of any patents, copyrights, trade secrets or other proprietary rights by the DayCareApp System or any part thereof.
Licensor may terminate this License Agreement at any time with or without cause by giving written notice of termination to Licensee, effective on Licensee's receipt thereof.
Written notice to be sent to firstname.lastname@example.org with clear indication of cancelation of this License Agreement.
Anything to the contrary herein notwithstanding, immediately upon such termination Licensee shall return to Licensor the DayCareApp System, including all related documentation and all copies thereof.
The waiver or failure of Licensor to exercise any right provided for herein shall not be deemed a waiver of any further right hereunder. The rights and remedies of Licensor set forth in this Agreement are in addition to any rights or remedies Licensor may otherwise have at law or in equity. If any provision of this License Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.
Neither party may assign its rights, duties or obligations under this Agreement without the prior written consent of the other party.
9. GOVERNING LAW AND JURISDICTION
This Trial License Agreement and performance hereunder shall be governed by the laws of the Australia of New South Whales without regard to conflicts of laws. Licensee and Licensor hereby agree that the sole jurisdiction and venue for any litigation arising from or relating to this License Agreement shall be an appropriate federal or state court located in NSW, Australia.
All provisions hereof relating to proprietary rights, confidentiality and non-disclosure, indemnification and limitation of liability shall survive the completion of the Services or any earlier termination of this License Agreement.
11. DATA OWNERSHIP
All data inputed by the Licensee to the DayCare App System is owned by the Licensee. This data can be deleted anytime via the software.
All data will be deleted upon termination of this License Agreement.
12. ENTIRE AGREEMENT
This License Agreement constitutes the entire agreement and understanding of the parties and supersedes and merges any and all prior proposals, understandings and agreements, oral and written, between the parties concerning the subject matter hereof.