LICENCE AGREEMENT TERMS & CONDITIONS
Hopewiser Limited whose registered address is Suite 512 Level 5 530 Little Collins St MELBOURNE VIC 3000, Australian Registered Body No. 089 152 223, (“Hopewiser”) hereby agrees to grant the Licensee [Company name as per the details of the signed order form] (“the Customer”) a non-exclusive Licence for one year from the Date of Purchase specified in the Schedule to use the Hopewiser Products (“the Products”) detailed in The Schedule or the signed Order Form upon the Terms and Conditions set forth in this Licence Agreement.
In this agreement the following words and expressions shall be deemed to have the following meanings:
“Initial Licence Fee” means the first licence fee in respect of the Product(s) specified in the The Schedule payment of which will fix the Annual Renewal Date.
“Annual Renewal Date” means the anniversary of payment of the Initial Fee and subsequent Annual Licence Fee payments when the licence for the Product(s) will be renewed.
“Annual Licence Fee” means the annual licence fees in respect of the Licensed Product(s) specified in the The Schedule as varied from time to time in accordance with provisions of such Schedule.
“PAF” means the Australia Post’s Postal Address file as defined in the PAF End User Licence Agreement copies available from https://www.hopewiser.com.au/developer-document/australia-post-terms-and-conditions/
“Data Supplier” means a third party licensor of any Database made available to the End User.
1. EXTENSION OF LICENCE
i. This Agreement will commence from the initial Date of Purchase and will continue until terminated in accordance with the provisions of Clause 10.
ii. This Licence will continue for one year following the payment of the Initial Licence Fee specified in The Schedule provided that if there is a substantial breach of contract (including failure to pay on the due date) or the Customer goes into liquidation or has a receiver appointed over any of its assets Hopewiser may by written notice to the Customer terminate this Licence.
iii. The Annual Licence will automatically renew on the anniversary of payment of the Initial Licence Fee for a further one year, and will continue to automatically renew on this anniversary each subsequent year unless the Customer terminates this Agreement in accordance with the provisions of Clause 10. This anniversary will be known as the “Annual Renewal Date”. The Annual Licence Fee will be due on or before this anniversary.
2. UPDATES
Hopewiser undertakes to provide on suitable magnetic media or by download enhancements, updates and new versions of the Product(s) that Hopewiser makes available generally providing receipt by Hopewiser of the Annual Licence Fee specified in The Schedule.
3. RESTRICTIONS ON USE
The Customer may use a copy of the Product(s) on no more than one computer at any one time. The Customer may not copy the Product(s) (other than for the purpose of providing one back up copy), transfer the Product(s) electronically from one computer to another, alter modify or adapt the Product(s), sell distribute sub-licence or lease the Product(s) without the written consent of Hopewiser.
4. WARRANTY
Hopewiser warrants that the magnetic media which contains the Product(s) is free of defects in materials and workmanship under normal use for ninety days after purchase. During the ninety day period the Customer may return the defective magnetic media to Hopewiser or to an authorised dealer of Hopewiser and Hopewiser will replace the magnetic media without charge to the Customer. The Customer’s sole and exclusive remedy in the event of a defect is expressly limited to replacement of the magnetic media as provided above and any implied warranties of merchantability and fitness for a particular purpose are limited in duration to the period of ninety days from the date specified above. If the failure of any magnetic media has resulted from accident abuse or misapplication of the magnetic media then Hopewiser shall have no responsibility to replace the magnetic media under the terms of this warranty.
5. NO WARRANTY OF PERFORMANCE
Subject to the warranty contained in Clause 4 no warranty representation or condition either express or implied as to the performance quality merchantability or fitness of the Product(s) for any particular purpose is given by Hopewiser and in no event will Hopewiser be liable for direct, indirect, special or consequential damages arising out of the use or inability to use the Product(s) except that Hopewiser will not exclude any liability for death or personal injury arising from its proven negligence.
6. SUPPORT SERVICES
i. End Users should use the relevant Service Documentation and on-line help before contacting the Hopewiser Support team. Hopewiser shall provide a telephone and email service to respond to queries and to analyse Product(s) problems between the hours of 0900 and 1730 Monday to Friday excluding public holidays. Hopewiser will not provide support for third party applications.
ii. The Customer will reimburse Hopewiser for onsite visits at a standard daily rate agreed at the prevailing rate exclusive of days allocated in The Schedule. Onsite visits subject to these charges will include training and consultancy days. All reasonable expenses incurred in relation to these shall be charged to the customer.
7. DATA LICENSES
(i) The data supplied by Hopewiser for use of the Service is subject to terms and conditions and licences set by the providers of that data. The End User agrees to comply with all terms relating to the Data Supplier Licence(s).
(ii) Where the End User chooses to use the Service to access PAF they agree to comply with the terms of the PAF Licence Agreement (See PAF Definition)
(iii) The End User warrants that the details contained in the Account are correct and undertakes that any changes, including without limitation the intended use of the Service are promptly notified to Hopewiser for forwarding to the Australia Post or Data Supplier.
(iv) Hopewiser will update the PAF and Database(s) used by the Service within two months of such updates being received by Hopewiser in an acceptable and readable manner.
(v) Hopewiser does not warranty the accuracy of any Data Supplier Database.
8. DATA PROTECTION
Both parties agree to comply with the standards asserted by the relevant provisions of the Data Protection Act 2018 (UK) and the General Data Protection Regulation 2016 (EU) together with the Australian Privacy Act 1988 which amends them and to obtain and maintain all necessary registrations required by the Acts; and to ensure that all requirements of these rules and standards are met in respect of Data Supplier data and indemnify the other party against all consequences of a breach.
9. CHARGES
i. The Licence Fees in The Schedule are net sums and all Goods & Services Tax shall be paid by the Customer. All Licence Fees shall be paid not later than thirty days after the date of the invoice in respect thereof. Hopewiser shall be entitled to charge interest at the rate of eight per cent on all overdue accounts.
ii. Hopewiser reserves the right to withhold updates and support from overdue accounts
10. TERMINATION
i. The Customer may terminate this Licence by giving 3 months’ notice in writing prior to the Annual
Renewal Date provided always that such termination will not discharge the Customer from any obligations
hereunder or from payment of any sums already due.
ii. Once terminated, the Customer will undertake to delete the Product(s) and PAF data from the Customer’s computers and provide written confirmation that no copies of the Product(s) and PAF data have been taken.
11. JURISDICTION
This agreement is governed by the law of Victoria and each party submits irrevocably and unconditionally to the non-exclusive jurisdiction of the Victorian courts.
12. VARIATION
We may modify these Terms and Conditions at any time by posting a notice on the Website. By continuing to use the service after such changes are posted, you acknowledge and agree to the updated Terms and Conditions. The date of the latest revision will be indicated at the top or bottom of the Terms and Conditions document on our Website.
13. LIMITATION OF LIABILITY
Except for liability arising from
(i) personal injury or death caused by negligence, (ii) fraud or fraudulent misrepresentation:
(a) to the full extent permitted by law, Hopewiser ’s entire liability under this Agreement will be limited to direct damages in an amount equal to the fees paid by the Customer to Hopewiser pursuant to this Agreement during the twelve (12) month period immediately preceding the first event giving rise to the claim; and (b) neither party will be liable for:
(i) any special, punitive, indirect, incidental or consequential damages arising from or related to this
Agreement; or (ii) any loss of revenue, profits, goodwill or data, or data use (including as a result of a virus), business
interruption, failure to realize an expected saving, corruption of data, or claims against them by any third party, even if the parties are advised, or may reasonably supposed to have been aware, of the possibility of such damages in advance.
Such limitations will apply regardless of how the claim arises, whether arising based on contract, tort, negligence, or otherwise and will apply to all order forms, schedules, addenda, agreements and attachments related to this Agreement. The foregoing limitations of liability allocate the risks between Hopewiser and the Customer and form a material basis of the bargain between the parties. Hopewiser’s pricing reflects this allocation of risk and the limitation of liability specified herein.