Licence Agreement Terms and Conditions

A. Definitions and Interpretation

Interpretation

Unless the context requires otherwise, in this Deed

1. headings are for convenience only and do not affect the interpretation of this Deed
2. words in the singular include the plural and vice versa;
3. the meaning of general words is not limited by specific examples introduced by "including" or "for example" or similar expressions
4. references to persons include bodies corporate, government departments and agencies and vice versa;
5. references to the parties include references to respective directors, officers, employees, agents of the parties;
6. Nothing in this Deed is to be interpreted against a party solely on the ground that the party put forward this Deed or any part of it
7. Where an expression is defined, any other grammatical form of that expression has a corresponding meaning.

Definitions

Application means computer programs developed by the Licensee which incorporate any part of the Software.

Binary Code means machine-readable, executable code of a computer program.

Claim means any cost, expense, loss, damage (including indirect, special, identical, consequential loss and loss of anticipated revenue), claim, action, proceeding or other liability (whether in contract, tort or otherwise), however arising and includes legal costs on a full indemnity basis.

Commercialise, in relation to the Software, means to:

1. reproduce for the purpose of offering for sale or hire;
2. offer for sale or hire or otherwise exploit an Application incorporating any part of the Software;
3. provide a service, which incorporates any part of the Software; or
4. license any third party to do any of those things;

Intellectual Property Rights includes all rights in relation to copyright, inventions, trademarks, logos, trade secrets and all other rights comprising the Software but does not include Moral Rights.

Software means the Binary Code, any other machine readable materials (including, but not limited to, libraries, source files, header files, and data files), any database schema (that is the logical database description), any Updates, third party incorporated code, user manuals, programming guides and other documentation which together constitute the Program(s) provided to the Licensee by NSW DPI under this Deed.

Source Code means any materials, including without limitation flow charts, logic diagrams, binaries and object codes, whether in machine or human readable form, which are necessary to allow a reasonably skilled programmer to analyse, improve, modify, enhance, or update software without reference to any other person.

Updates means any patch or piece of software supplied by NSW DPI which is designed to update, fix problems or correct errors including fixing bugs, replacing graphics and improving the usability or performance of the Program(s).

The following words have the meaning ascribed to them in the Details: Approved Purposes, Citation, Contributing Organisation, DPI Contact Person, Licensee, Software Program(s), and Special Conditions.

B. Ownership

All Intellectual Property Rights in the Software vest in NSW DPI and NSW DPI on behalf of the Contributing Organisation.

C. License to use

Subject to the terms and conditions of this Deed NSW DPI grants the Licensee a non-exclusive, non-transferable, royalty free, limited licence without licence fees to reproduce and use the Software in its unmodified form internally for the Approved Purpose identified in the Details.

C. License to Distribute

NSW DPI also grants the Licensee a licence to reproduce and distribute the Software, provided that:

1. the licensee does not Commercialise the Program, any part of the Software or any Application,
2. the Licensee distributes the Software complete and unmodified and only bundled as part of, and for the sole purpose of running the Applications,
3. the Applications add significant and primary functionality to the Software,
4. the Licensee only distributes the Software subject to a license agreement that protects NSW DPIs interests consistent with the terms contained in this Deed, and
5. the Licensee agrees to defend and indemnify NSW DPI and its licensors from and against any and all Claims arising from or as a result of the use or distribution of any and all Programs and/or Software.

D. Source Code

The Software may contain Source Code that is provided solely for reference purposes of the Licensee. Such Source Code may not be reproduced or redistributed to any other party without the written permission of NSW DPI.

E. Third Party Code

1. The Software provided under this Deed may incorporate third party code. Such code is provided on the basis that the Licensee complies with the terms and conditions of any licences attached to such third party code. Any additional copyright notices and license terms applicable to third party code incorporated into the Software will be set out in a THIRDPARTYLICENSEREADME.txt file.
2. The limited warranty and limitation of liability contained in clauses 11 and 12, apply to any third party code in addition to any terms and conditions of any third party open source/freeware licence.

F. Updates of the Software

1. From time to time NSW DPI may have available Updates to the Program(s). The Licensee may contact NSW DPI and enquire whether any Updates are available. NSW DPI may, at its sole option, provide Updates to the Licensee during the Term of the Deed which will be supplied subject to the terms and conditions contained in this Deed.
2. Nothing in this Deed will be deemed to impose any obligation on NSW DPI to create and make available such Updates to the Licensee.

G. Reporting of Problems

NSW DPI welcomes reports by the Licensee of any bugs, errors, limitations or other problems with the Program, however this Licence is provided on the basis that NSW DPI will be under no obligation to fix any such problems encountered by the Licensee.

H. Use of Names and Trademarks

1. The parties agree that NSW DPI will take sole responsibility for all media announcements regarding the Software. The Licensee must refer any media enquiries regarding the Software to NSW DPI.
2. The Licensee must use the Citation listed in the Details whenever referencing the Software in any publication including and Application.
3. The Licensee must obtain written consent from NSW DPI before it uses the name, trade mark or logo of NSW DPI or any Contributing Organisation other than as permitted under clause 9.2 above.

I. Restrictions

J. Limited Warranty

1. The Licensee uses the Software at its own risk. NSW DPI does not warrant the Software is error free, or that it meets the Licensee’s particular requirements.
2. Unless otherwise specified in this Deed, all express or implied conditions, representations and warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement of third party rights are disclaimed, except to the extent that these disclaimers are held to be legally invalid.

K. Limitation of Liability

To the extent permitted by law, NSW DPI will not be liable for any Claim however caused in connection with or arising out of the performance of the Software, from the Licensee’s reliance on the Software, arising out of or related to the use or inability to use the software, even if NSW DPI as been advised of the possibility of such damages.

L. Term and Termination

1. This Deed will continue in force until terminated. The Licensee must destroy all copies of Software immediately on termination of this Deed.
2. The Licensee may terminate this Deed at any time by destroying all copies of Software.
3. This Deed will terminate immediately without notice from NSW DPI if the Licensee fails to comply with any provision of this Deed.
4. Either party may terminate this Deed immediately should any Software become, or in either party's opinion be likely to become, the subject of a claim of infringement of any intellectual property right.

M. General Terms

1. Survival : The following clauses survive termination or expiration of this Deed: clause [IP ownership], clause and [Warranties and Liability], clause [Termination] and any other clause which by its nature is intended to survive this Deed.
2. No waiver:
   1. If a Party fails to exercise any of its rights under this Deed, or delays exercising those rights, that failure or delay will not operate as a waiver of those rights or any future rights, or estop the Party from relying on the terms of this Deed to their full force and effect.
   2. Any waiver by a Party of a breach of this Deed must be in writing and will not be construed as a waiver of any further breach of the same or any other provision.
3. Entire Agreement: This Deed contains the entire agreement between the parties as to the matters referred to in this Deed. It supersedes all prior contracts, obligations, representations, conduct and understandings.
4. Variation: A variation of any term of this Deed must be in writing and signed by the parties.
5. Assignment: The Recipient must not assign or novate its obligations or interests under this Deed without the prior written consent of NSW DPI.
6. Governing law: The laws of New South Wales, Australia govern this Deed and the Parties submit to the non-exclusive jurisdiction of the courts in that State.