END-USER LICENCE AGREEMENT

 

1.       PARTIES

 

          This Agreement is between SKORPION PTY LTD ACN 076 272 672 of 708 Dunoon Rd, Tullera, New South Wales, 2480 (Skorpion) and the following person (End-user):

 

                                                                                               

          End-user's full company name

 

                                                                                               

          Full street address of End-user's head office

 

2.       DEFINITIONS

 

In this Agreement:

 

Location means the End-user's premises specified in the Schedule or other premises in the same legal jurisdiction (eg, state) approved by Skorpion, which approval Skorpion may not withhold unreasonably.

 

Manual means any user documentation relating to the Software.

 

Software means the software specified in the Schedule, and new releases and new versions of it supplied by Skorpion to the End-user under this Agreement or any maintenance agreement between the parties.

 

Warranty Period means the period of [12 months] after the date the End-user signs this Agreement.

 

3.       TERM

 

          This Agreement starts on the date it is executed by both parties and continues until it is terminated in accordance with clause 14.

 

4.       LICENCE AND FEE

 

4.1     Skorpion grants to the End-user a non-exclusive licence to use, on equipment owned and used by the End-user at the Location, the number of copies of the Software specified in the Schedule.

 

4.2     The End-user must pay Redan Skorpion the licence fee for the Software (as specified in the Schedule) before or on delivery of the Software.

 

5.       RESTRICTIONS

 

The End-user must not and must not allow any person other than Skorpion to:

 

(a)     copy the Software (except to make 1 copy of Software supplied in disk form for backup purposes, which must bear the same copyright notice as the original);

 

(b)     copy the Manual;

 

(c)     alter, modify, tamper with, reverse engineer or attempt to reverse engineer the Software;

 

(d)     use the Software to develop other software; or

 

(e)     permit the Software to be combined with or incorporated in other software.

 

6.       END-USER OBLIGATIONS

 

The End-user must:

 

(a)     promptly after receipt, properly install, or arrange for the proper installation of, all Software;

 

(b)     comply with all reasonable directions issued by Skorpion regarding use of the Software;

 

(c)     use the Software in accordance with the Manual;

 

(d)     ensure that the Software is used only by people trained to use the Software; and

 

(e)     establish and carry out reasonable backup procedures for the Software; and

 

(f)  keep a complete and accurate log of End-user complaints.

 

7.       WARRANTY

 

7.1     Skorpion warrants that the Software will substantially conform to the Manual.  While Skorpion does not warrant that the Software will be error-free, Skorpion will remedy errors or any other failures to comply with this warranty by supplying maintenance support in accordance with clause 7.2. 

 

7.2     Skorpion must supply the following maintenance for the Software during the Warranty Period but makes no other express warranties regarding the Software or its use by the End-user:

 

(a)  supply telephone support for the Software during Redan's support hours;

 

(ab)     after receiving notice from the End-user of a defect in the Software, correct or replace that defective Software; and

 

(bc)     supply make available any new release (but not new version) of the Software developed by Skorpion from time to time.

 

7.3     Skorpion’s only liability for breach of clause 7.2 is to supply free maintenance for the Software to remedy the breach.

 

8.       ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS

 

8.1     The End-user assigns to Skorpion all existing and future intellectual property rights in modifications and adaptations to the Software and in software developed using the Software, made by the End-user or its employees, agents and contractors (whether or not made with Skorpion’s approval) and acknowledges that by virtue of this clause, all such existing rights are vested in Skorpion, and on their creation, all such future rights will vest in Skorpion.

 

8.2     If requested by Skorpion, the End-user must promptly:

 

(a)     do all things to enable Skorpion to assure further the rights assigned under clause 8.1; and

 

(b)     provide Skorpion with copies of all modifications, adaptations and developed software referred to in clause 8.1.

 

9.       CONFIDENTIALITY AND SECURITY

 

9.1     The End-user must not, without Skorpion's written approval:

 

(a)     disclose the Software or the Manual (or any part of them) to any third person (except the End-user's employees who need to know); and

 

(b)     remove the Software or the Manual from the Location.

 

9.2     The End-user must take all steps to ensure that:

 

(a)     the End-user's employees are directed to and actually keep confidential the Software and the Manual; and

 

(b)     no unauthorised copy or use is made of the Software or the Manual including, but not limited to, use of or access to the Software by an unauthorised third person.

 

10.     INFRINGEMENT

 

The End-user must notify Skorpion immediately if it becomes aware of any:

 

(a)     unauthorised copying or use of the Software or the Manual; or

 

(b)     breach of confidence by any person to whom the End-user has disclosed part or all of the Software or the Manual.

 

11.     RISK AND TITLE

 

11.1   The media on which the Software and the Manual are recorded or printed are and will remain the property of Skorpion, but risk in the media passes to the End-user on delivery.

 

11.2   The End-user acknowledges that this Agreement does not transfer to it any right in the Software or the Manual other than the licence granted under clause 4.1.

 

12.     EXCLUSION AND LIMITATION OF LIABILITY

 

12.1   Skorpion does not exclude or limit the application of any provision of any statute (including the Trade Practices Act 1974 (Cth)) where to do so would:

 

(a)     contravene that statute; or

 

(b)     cause any part of this Agreement to be void.

 

12.2   Skorpion excludes:

 

(a)     from this Agreement all conditions, warranties and terms implied by statute, general law or custom, except any implied condition or warranty the exclusion of which would contravene any statute or cause this clause to be void ("Non-excludable Condition");

 

(b)     all liability to the End-user in contract for consequential or indirect damages arising out of or in connection with the Software, any services supplied by Skorpion or this Agreement even if:

 

(i)      Skorpion knew they were possible; or

 

(ii)     they were otherwise foreseeable,

 

including without limitation, lost profits and damage suffered as a result of claims by any third person; and

 

(c)     all liability to the End-user in negligence for acts or omissions of Skorpion, its employees, agents and contractors arising out of or in connection with the Software, any services supplied by Skorpion or this Agreement.

 

12.3   Skorpion’s total liability to the End-user for:

 

(a)     a breach of any express provision of this Agreement; or

 

(b)     a breach of any Non-excludable Condition (other than one implied by Section 69 of the Trade Practices Act 1974 (Cth))

 

is limited, at Skorpion’s option, to any one of supplying, replacing or repairing the goods or supplying again the services, in respect of which the breach occurred.

 

13.     END-USER INDEMNITY

 

The End-user indemnifies Skorpion against all expenses, losses, damages and costs (on a full indemnity basis and whether incurred by or awarded against Skorpion) that Skorpion may sustain or incur as a result, whether directly or indirectly, of any claim by a third person arising out of the End-user's use of the Software, except a claim for intellectual property right infringement arising out of the End-user’s use of the Software in accordance with this Agreement.

 

14.     TERMINATION

 

          Skorpion may terminate this Agreement at any time with immediate effect by giving written notice to the End-user if the End-user:

 

(a)     breaches any clause of this Agreement, or any other agreement between the parties, and fails to remedy that breach within 14 days after receiving written notice requiring it to do so;

 

(b)     becomes unable to pay the End-user's debts as they become due;

 

(c)     is a company and any step is taken to appoint a receiver, a receiver and manager, a liquidator, a provisional liquidator or other like person of the whole or any part of the End-user's assets, operations or business;

 

(d)     is a partnership and;

 

(i)      any member of the partnership is declared bankrupt; or

 

(ii)     any step is taken to dissolve the partnership; or

 

(e)     is a natural person and is declared bankrupt.

 

15.     ON TERMINATION

 

15.1   On termination of this Agreement the End-user must immediately:

 

(a)     stop using the Software;

 

(b)     return to Skorpion all copies of the Software and the Manual in its possession or control; and

 

(c)     ensure that all of the Software has been deleted or permanently removed from any equipment on which it is stored.

 

15.2   The End-user acknowledges that if this Agreement is terminated, in addition to any other remedies it may have, Skorpion may retain all fees paid under this Agreement.

 

15.3   Clauses 8, 9, 11, 12, 13, 15 and 16 continue after termination of this Agreement.

 

16.     TAX

 

The End-user must pay and indemnifies Skorpion against any tax (other than income tax), duty or charge payable arising out of or in connection with this Agreement or the End-user's use of the Software (including, but not limited to, stamp duty).

 

17.     ASSIGNMENT

 

The End-user must not assign or attempt to assign any right arising out of this Agreement without Skorpion's prior written approval, which approval Skorpion may withhold in its absolute discretion or give subject to satisfaction of one or more condition.

 

18.     GOVERNING LAW

 

          This Agreement is governed by the law applicable in New South Wales and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales.

 

19.     ENTIRE AGREEMENT

 

This Agreement (including the Schedule):

 

(a)     constitutes the entire agreement between the parties as to supply of Software and supersedes all prior representations and agreements in connection with that subject matter; and

 

(b)     may be altered only in writing executed by the parties.

 

SCHEDULE

 

LOCATION (for using Software):

 

 

 

 

 

SOFTWARE

 

Name/Type                                                                   Quantity

 

 

 

 

LICENCE FEE:

 

 

EXECUTED as an agreement.

 

 

Signed for and on behalf of                          )         Signed by ______________________       )

SKORPION PTY                                     )         ______________________________       )

Ltd by a duly authorised officer in the        )         who warrants that he or she is authorised     )

presence of:                                                )         to bind the End-user in the presence of:        )

 

 

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Signature of authorised officer                               Signature

 

 

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Name of authorised officer                                    Witness signature

 

 

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Witness signature                                                  Witness name

 

 

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Witness name                                                       Date

 

 

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Date