Lamaxu Trial Licence Agreement

Please read this agreement carefully before registering for a trial.

Annexure 1 — Agreed Terms

1. Definitions & Interpretation

Definitions and interpretation are as set out in annexure 2.

2. Commencement & Term

This agreement will commence on the date the software is downloaded, and continue for the Trial Period, unless earlier terminated in accordance with its terms.

2.1 Acceptance

By clicking "I agree to the Terms and Conditions" during the registration process, the Licensee accepts and agrees to be bound by this agreement.

3. Trial Licence

3.1 In consideration of the parties' obligations under this agreement, the Licensor grants the Licensee a non-exclusive, perpetual, royalty-free licence to use the Licensed Products during the Trial Period, on the terms and conditions set out in this agreement (the Trial Licence). The Trial Licence is solely for the Licensee's internal business use and excludes the right to commercialise or sub-license (except to the Licensee's contractors solely for the purpose of providing services in relation to the Licensed Products to the Licensee using the Licensee's systems).

3.2 The Trial Licence is for the purpose of the Licensee's evaluation of the Licensed Products within the Licensee's development environment only (the Trial). The Licensee is not entitled to copy, reverse engineer or decompile the Licensed Products, must not use the Licensed Products outside the Licensee's internal development environment, and is not entitled to source code for the Licensed Products.

3.3 The Licensee acknowledges and agrees that the Licensor and its licensors are the owners of all of the right, title and interest in the Licensed Products and must not act in any way that is inconsistent with those parties' ownership of the Licensed Products, including keeping them free of liens and encumbrances, and not transferring or altering them in any way during the Trial Period.

4. Requirements for Use of the Licensed Products

4.1 The Licensee must ensure that the Intellectual Property Notices are applied on all copies of the Licensed Products.

4.2 Each party agrees that, in performing this agreement, it will take all reasonable steps to avoid doing or causing anything that may cause detriment to the good standing or reputation of the other party.

5. Trial Process

5.1 The Licensee may test the Licensed Product in laboratory tests and standalone tests within its development environment.

5.2 During the course of the Trial, the Licensor will provide reasonable support at no charge at agreed times.

5.3 The Licensor will supply documentation for the Licensed Products in support of the conduct of the Trial.

6. Infringement

6.1 The Licensee must give the Licensor notice of any circumstance of which the Licensee becomes aware, which may constitute any infringement of any of the Licensed Products, passing off or contravention of consumer protection legislation, and must provide reasonable assistance to the Licensor in respect of any action which the Licensor may undertake against third parties in relation to the infringement, passing off or contravention.

6.2 The Licensor will have the sole right to institute infringement proceedings in respect of the Licensed Products.

7. Taxes

A recipient of a taxable supply made under this agreement must pay to the supplier, in addition to the consideration for the taxable supply, any GST paid or payable by the supplier in respect of the taxable supply, on presentation of a valid tax invoice.

8. Warranties

8.1 The Licensor warrants that:

  1. (a) it has all necessary right, title and interest to grant the Trial Licence and has not previously dealt with, and will not in the future deal with, the Licensed Products in a manner that is inconsistent with the Trial Licence;
  2. (b) the use of the Licensed Products by the Licensee in accordance with the Trial Licence will not infringe the IPR of any third party. This warranty does not apply to the extent that the infringement arose from the unauthorised use, modification or combination with other material of the Licensed Products, the Licensor's compliance with any directions or specifications of the Licensee, the Licensee's use of the Licensed Products outside its development environment, or the Licensee's continued use of the Licensed Products after the Licensee has advised it of an infringement claim; and
  3. (c) to the extent that the Licensed Products includes copyright material, it has obtained all necessary consents in relation to moral rights to enable the Licensee to deal with the Licensed Products in accordance with the Trial Licence.

8.2 In any case of a claim of intellectual property infringement, the Licensor's sole liability is, at its option, to procure the necessary rights for the Licensee, to provide a replacement product of equivalent functionality, or, if neither of these options is reasonably available, the Licensor is entitled to terminate this agreement in which case the provisions of clause 12 will apply.

8.3 Other than the warranty under clause 8.1, the Licensed Products are provided for trial purposes only on an AS IS basis. To the extent permitted by law, the Licensor excludes all warranties or representations as to the functionality or performance of the Licensed Products.

8.4 Each party warrants that it has all necessary authority to enter this agreement.

9. Liability

9.1 To the extent permitted by law, each party excludes all liability arising out of or in any way connected with this agreement, except in relation to:

  1. (a) the warranties in clause 8;
  2. (b) fraud or unlawful conduct; or
  3. (c) breach by the Licensee of the terms of the Trial Licence.

9.2 To the extent permitted by law, each party excludes all liability relating to indirect, consequential, special or economic loss, punitive damages, loss of data, loss of goodwill, loss of business or loss of anticipated profits.

9.3 A party's liability will be reduced proportionally to the extent caused or contributed to by the other party.

9.4 To the extent permitted by law, each party excludes any terms or warranties that might otherwise be implied into this agreement.

9.5 To the extent that liability cannot be excluded by this agreement, a party's liability is limited to:

  1. (a) in the case of goods, replacing or repairing the goods; or
  2. (b) in the case of services, supplying the services again.

10. Confidentiality

The Recipient must not use or disclose any Confidential Information of the Discloser except as required for performance of this agreement.

11. Compliance with Laws

11.1 Each party must comply throughout the Term with all applicable Laws in relation to the performance of this agreement.

11.2 A party must promptly notify the other party if it receives a written allegation of non-compliance with any Laws in relation to the performance of this agreement.

12. Termination & Expiry

12.1 At the end of the Trial Period the Licensee will notify the Licensor whether it wishes:

  1. (a) for the Trial Period to end, in which case clauses 12.4, 12.5 and 12.6 will apply; or
  2. (b) to convert the Trial Licence to a full licence on the Licensor's standard commercial terms.

12.2 A party may terminate this agreement by giving written notice to the other party if:

  1. (a) the other party materially breaches this agreement or commits a series of breaches which, taken together, constitute a material breach of this agreement; or
  2. (b) the other party commits or is subject to an Insolvency Event.

12.3 The Licensor may terminate the agreement at any time during the Trial Period on written notice to the Licensee.

12.4 On termination or expiry of this agreement, Licensee will terminate any sublicenses, cease using the Licensed Products and delete all copies of the Licensed Products from its systems.

12.5 Each party must mitigate the cost of termination.

12.6 Termination does not affect the accrued rights of either party.

13. General

13.1 A party must not assign, novate, charge or otherwise deal with this agreement or any right or interest in it, without the prior written approval of the other party, which may be withheld in the other party's discretion.

13.2 This agreement sets out the parties' entire agreement in relation to its subject matter.

13.3 This agreement may only be amended by the parties' agreement in writing.

13.4 The failure of a party to insist on or enforce performance of any provision of this agreement or to exercise any rights under this agreement will not be construed as a waiver.

13.5 If any provision of this agreement is found to be illegal or unenforceable pursuant to any statute or rule of law or for any other reason, that provision is deemed to be omitted without affecting the remaining provisions, which will continue in full force and effect.

13.6 This agreement is governed by the laws of New South Wales. Each party submits to the non-exclusive jurisdiction of the courts having jurisdiction in New South Wales and courts of appeal from them in relation to matters arising from this agreement.

14. Privacy

The Licensor will collect and handle personal information provided during registration in accordance with its Privacy Policy and the Australian Privacy Act 1988 (Cth). Personal information will only be used for the purpose of administering this agreement and the Trial.

Annexure 2 — Definitions & Interpretation

1.1 In this agreement:

Confidential Information of a party (the Discloser):

  1. (a) includes all information (regardless of the form of disclosure or the medium used to store or represent it) treated by the Discloser as confidential and of which the other party (the Recipient) first becomes aware either:
    1. (i) through disclosure by the Discloser to the Recipient; or
    2. (ii) otherwise through the Recipient's involvement with the Discloser and its business operations, and which the Recipient ought reasonably to know is confidential;
  2. (b) includes information about the Discloser's finances, strategies, management or business operations and any materials provided by the Discloser to the Recipient; and
  3. (c) includes the terms of this agreement, but
  4. (d) excludes information:
    1. (i) that the Recipient creates, alone or jointly, or of which it becomes aware independently of the Discloser's Confidential Information; or
    2. (ii) that is public knowledge, and has become so other than as a result of a breach of confidentiality by the Recipient or any person to whom the Recipient has disclosed the Confidential Information.

Insolvency Event means any of the following events occurring to a person:

  1. (a) that person disposes of the whole or any part of its assets, operations or business other than in the normal course of business;
  2. (b) any step is taken to enter into any arrangement between that person and its creditors;
  3. (c) that person ceases to be able to pay its debts as they become due;
  4. (d) that person ceases to carry on business;
  5. (e) any step is taken by a mortgagee to enter into possession or dispose of the whole or any part of that person's assets or business;
  6. (f) any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other like person of the whole or any part of that person's assets or business; or
  7. (g) the person is a partnership and:
    1. (i) any member of the partnership commits or is subject to an Insolvency Event; or
    2. (ii) any step is taken to dissolve the partnership.

Intellectual Property Rights or IPR means all intellectual property rights at any time protected by statute or common law, throughout the world, including but not limited to:

  1. (a) patents, copyright, circuit layout rights, registered designs and trade marks; and
  2. (b) any application or right to apply for registration of any of the rights referred to in paragraph (a).

Laws means all laws, ordinances, rules, regulations, orders, licenses, permits and other requirements, in effect now or in the future, of any government or governmental authority.

Licensed Products means the Licensor's software product LAMAXU.

Trial Period means the period of 90 days from delivery of the Licensed Products, or as extended by agreement in writing between the parties.

1.2 In this agreement, unless the context otherwise requires:

  1. (a) the singular includes the plural and conversely;
  2. (b) a gender includes all genders;
  3. (c) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
  4. (d) a reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them;
  5. (e) headings are for convenient reference and do not affect interpretation;
  6. (f) clause means a clause of this agreement;
  7. (g) a reference to any agreement or document is to that agreement or document as amended, novated, supplemented, varied or replaced from time to time, except to the extent prohibited by this agreement;
  8. (h) a reference to a right or obligation of two or more persons confers that right, or imposes that obligation, as the case may be, jointly and severally;
  9. (i) one clause does not limit the effect of another;
  10. (j) a reference to "includes" means "includes, without limitation";
  11. (k) all references to consent refer to prior written consent except where otherwise qualified;
  12. (l) a reference to a month or year is a reference to a calendar month or calendar year;
  13. (m) a reference to any legislation is a reference to that legislation as amended or replaced from time to time;
  14. (n) a reference to this agreement includes the schedules or annexures to this agreement.

© Lamaxu. Governed by the laws of New South Wales, Australia.