MillerBiller
Evolve
SOFTWARE LICENCE AGREEMENTBETWEEN: Lakesbay Pty Ltd ATF the Andrew Miller Family Trust ACN095 853 160 having its registered office at 316/25 McCourt St Subiaco WA 6008 (the “Licensor); AND: the “Licensee" user of MillerBiller RECITALS:A. The Licensor is the owner of and has the right to license the Software and the Materials.B. The Licensee wishes to use the Software and the Materials.C. The Licensor has agreed to license the Software and the Materials to the Licensee for the Permitted Purpose and the Licensee accepts the licence on the following terms and conditions.THE PARTIES AGREE:1. LICENCE1.1. The Licensor grants non-exclusive, non-transferable, revocable licence to the Licensee to Use the Software and Materials on and from the date of this Agreement for the Permitted Purpose.1.2. The Licensee may not assign the Licence.1.3. The Licensee may not sublicense the Licence. The Licensee is not permitted to adapt/modify the code.1.4. The Licensee is not permitted to reverse engineer, reverse assemble or reverse compile or otherwise endeavour to obtain the source code from the object code.1.5. The Licensee is not limited in its Use of the Software.2. TERM OF LICENCE2.1. The parties agree that the Licence is for a period of three (3) year(s) from the date of this Agreement unless terminated by either party as set out in this Agreement.3. LICENCE FEE3.1. The Licensee will pay the Licensor the fee as set out in Part D of the Schedule.3.2. The Licensee is not obliged to pay any fee due unless it has received a Tax Invoice from the Licensor.4. INTELLECTUAL PROPERTY4.1. The Licensee acknowledges and agrees that the Licensor is the owner of all Intellectual Property Rights in the Software and the Materials.4.2. The Licensee must not alter, remove or obscure any trade mark or copyright symbol or legend or other proprietary mark on the Software and the Materials.5. CONFIDENTIAL INFORMATION5.1. The Licensee acknowledges and agrees that the Software and the Materials contain Confidential Information belonging to the Licensor.5.2. The Licensee agrees to disclose the Software and Materials only to its employees and contractors who need to access such information so that the Licensee can exercise its rights and obligations under this Agreement. 5.3. The Licensee undertakes to obtain signed deeds of confidentiality from any contractor who needs access to the Software and Materials.6. LICENSOR REPRESENTATIONS AND WARRANTIES6.1. The Licensor represents and warrants that it has the right to license the Software and the Materials to the Licensee.6.2. The Licensee’s Use of the Software and the Materials will not infringe the rights including Intellectual Property Rights of any third party. 7. LICENSEE WARRANTIES, OBLIGATIONS & ACKNOWLEDGEMENTS7.1. The Licensee warrants that it has not relied upon any representation made by the Licensor other than as set out in this Agreement.7.2. The Licensee is not permitted to sell, charge, mortgage or otherwise encumber the Software and/or the Materials in any way.7.3. The Licensee is solely responsible for the use, supervision, management and control of the Software and the Materials.7.4. The Licensee will ensure that the Software and Materials are at all times protected from access, use or misuse and damage and destruction by any person not authorised by either the Licensor or the Licensee, and the Licensee will notify the Licensor immediately if it becomes aware of any unauthorised use of the Software and/or Materials. 7.5. The Licensee acknowledges that, subject to Clause 1, it has no Intellectual Property Rights in the Software and/or the Materials.7.6. The Licensee acknowledges that the Licensor gives no guarantee as to the accuracy or completeness of the Software and the Materials or that they are free from error.7.7. The Licensee acknowledges that the Licensor is not contracted under this Agreement to install or provide acceptance testing of the Software.8. LIMITATION OF LIABILITY8.1. To the fullest extent permitted by law, the Licensor expressly disclaims all implied warranties and conditions including without limitation implied warranties as to merchantability and fitness for purpose of the Software and Materials.8.2. To the extent that any liability of the Licensor under the Competition and Consumer Act 2010 (Cth) cannot be excluded, the Licensor’s liability is limited to replacing the Software and/or Materials or the value of the most recent fee paid by the licensee.8.3. To the fullest extent permitted by law, the Licensor excludes all liability for indirect and consequential loss including without limitation the theft, loss or corruption of the Software and or the associated data, loss of revenue, loss of profits, failure to realise expected profits or savings and any other commercial or economic loss of any kind arising from this Agreement howsoever caused.9. INDEMNITY9.1. The Licensee indemnifies and holds harmless the Licensor and promises to keep the Licensor indemnified against any loss, claim, action, settlement, award, judgment, expense or damage of whatsoever kind or nature and howsoever arising that the Licensor might suffer as a result of any inaccuracy of the Software and/or the Materials including any unauthorised use of the Software and/or Materials by the Licensee.10. SOURCE CODE IN ESCROW10.1. The parties agree that source code is not required to be placed in escrow.11. TERMINATION11.1. Where the Licensee fails to perform any of its obligations set out in this Agreement, the Licensor reserves the right to immediately terminate the Licence with Notice to the Licensee.11.2. Subject to the following clause, on termination the parties agree that all rights granted to the Licensee under this Agreement will cease immediately and the Licensee will return all Software and Materials provided under this Agreement. If requested by the Licensor, the Licensee will provide Notice to the Licensor stating that the Software and Materials have been returned, destroyed or otherwise dealt with as the case may be as directed by the Licensor.11.3. Following termination, the parties agree that the provisions set out in Clauses 5 (Confidentiality), 6.1 (Licensor warranty), 7.1 (Licensee warranty) and 8 (Limitation of Liability) will continue to be binding.12. NOTICES12.1. Any Notice given pursuant to this Agreement must be in writing, signed by an officer of the sender, addressed to the recipient at the address, facsimile number or email address as set out in Part E of the Schedule or as a party may from time to time notify in writing to the other.12.2. A Notice will be deemed given on the same day if hand delivered with authorised receipt; if posted, then three (3) business days after date of posting; if faxed, upon successful transmission record; and if by email, by return email to the sender informing receipt of the email.13. DISPUTE RESOLUTION13.1. In the event of a dispute arising between the parties in respect of any right or obligation under this Licence, each party covenants with the other in good faith to take all steps necessary to attempt to resolve the dispute. 13.2. In the event that the parties are unable between themselves to resolve a dispute within a reasonable period having regard to the nature of the Licence and the dispute, then either party may apply to their local State/Territory Alternative Dispute Resolution centre for resolution of the dispute under the ADRoIT Principles.14. GENERAL PROVISIONS14.1. (Law and Jurisdiction) This Agreement shall be governed by and construed in accordance with the laws of Western Australia and any claim made by one party against the other in any way arising out of this Agreement will be heard in Western Australia and the parties submit to the jurisdiction of those Courts.14.2. (Relationship) Nothing in this Agreement will constitute or be deemed to constitute a partnership, joint venture or agency between the parties.14.3. (Entire Agreement) The terms of this Agreement constitute the entire terms of this Agreement and all understandings, prior representations, arrangements or commitments that are not contained in this Agreement have no effect whatsoever and do not bind the parties.14.4. (Waiver): No waiver of any right or remedy will be effective unless in writing and shall not operate as a waiver of that right or remedy or any other right or remedy on a future occasion. 14.5. (Implied Terms): Any implied term under law that can be excluded is hereby expressly excluded and no term is to be implied as being a term of this Agreement unless by law it cannot be excluded.15. INTERPRETATION15.1. Definitions“Agreement” means this licence agreement including the Schedule and any amendments in writing.“Confidential Information” means all information in whatsoever form that is:(a) marked or identified as “Confidential”, “Secret”, “Not to be Disclosed” or “Private”;(b) is designated, described or referred to by the discloser in any document or correspondence as confidential, secret or private or not to be disclosed;(c) the receiving party knows or ought to know is confidential;but does not include any information which prior to the date of this Agreement was lawfully in the public domain or which the discloser has published, circulated or announced publicly or was developed by the receiving party independently of the disclosing party.“Intellectual Property Rights” means all rights in copyright, circuit layout, designs, trademarks, patents and all other rights in intellectual property as defined in Article 2 of the World Intellectual Property Organisation (WIPO) Convention whether registrable, registered, patentable or not.“Licence” means the software licence granted by the Licensor to the Licensee in Clause 1.“Materials” means the documentation provided by the Licensor to the Licensee including the operating manuals and other materials set out in Part A of the Schedule relating to the Software and includes updates to those materials.“Permitted Purpose” means the purpose set out in Part B of the Schedule.“Software” means the computer program/s provided by the Licensor set out in Part C of the Schedule and includes any updates provided by the Licensor during the term of this Agreement.“Tax Invoice” means an invoice that is GST compliant.“Use” means use/load, run. SCHEDULEPARTA – MATERIALSAccess to website millerbiller.com.au and any applicable subdomain.PART B – PERMITTED PURPOSEFor use in anaesthetic practice management.PART C – SOFTWAREMillerBiller™, which is an unregistered trademark of Lakesbay Pty Ltd ATF the Andrew Miller Family Trust; and Upgrades.PART D – LICENCE FEEAs advised and invoiced from time to time.PART E – NOTICESLakesbay Pty Ltd ATF the Andrew Miller Family Trust (the Licensor)of: 316/25 McCourt St Subiaco WA 6008