END USER LICENSE AGREEMENT (CLIENT)

 

This SOFTWARE LICENSING AGREEMENT (this "Agreement") is entered into by and between the following Parties on the date of installation.

Licensor: Wetwell Software pty ltd. ,including its promoters, directors, employees, assignors and agents

Licensee: The purchaser of (a) a compact disc bearing the software system as described below, either singly or together with other software systems; or (b) rights to use the software system as described below, whether hosted by the Licensor or by the Licensee. This purchase may only be made via the Licensor’s website www.wetwellsoftware.com. The purchaser may be a person, a proprietorship, partnership, corporation or a business entity structured as per the laws applicable. The terms of this agreement apply to the Licensee and to all who may have access to the CD and its use through the licensee, including but not limited to, his promoters, directors, employees, assignors and agents, howsoever associated.

WHEREAS:

1. The Licensor owns the software system known as the “Variance Beta”.

2. The Licensee desires to obtain the license of the software system mentioned above.

3. The Licensor is willing to provide the Licensee with the license of the software system mentioned above.

NOW THEREFORE, the Parties, through negotiations, agree to enter into this Agreement and the provisions are as follows:

 

1 DEFINITIONS

The terms concerned used in this Agreement are hereby defined as follows:

1.1 "Licensed Program" means the executable processing programs of licensed information, which comprised various modules from the Licensed Software package provided by the Licensor.

1.2 "Licensed Information" means any information concerning the Licensed Program, which is owned by the Licensor and is licensed to the Licensee together with the Licensed Program. Licensed Information includes such information as input form, user manual, interface format and input/output format and is delivered to and used by the Licensee as confidential information or proprietary property of the Licensor.

1.3 “Licensed Software" means “Variance Beta", including the Licensed Program and the Licensed Information. The Licensed Software is available in English language only. The purpose of the Variance beta has been set forth in detail in the Licensed Information. This purpose is as a reporting and invoicing program designed primarily for the construction industry; but usable for any construction industry where plant, equipment and personnel are used to perform any construction related task. The Licensed Software will track hours expended by plant, equipment and personnel, as well as materials and consumables purchased to perform construction contract variations. The Licensed Software will produce invoices and reports based on these hours.

1. The Licensee can store the description of a construction project, ‘New Project’, the scope of which is defined between the entity or person in control of the project, ‘Client’, and the provider of construction services, ‘Contractor’, into the Licensed Software. The description would be in the form of variable parameters, based on which the monies that such Contractor may charge to the Client are computed.

2. The Client & Contractor function independently, and their actions are not governed by the Licensed Software. Either of them may use the Licensed Software as the Licensee.

3. The Licensed Software is able to adjust its reports and invoices flexibly to changing charging parameters related to a particular defined New Project stored in it. Where the scope of a New Project changes by mutual agreement between the Client & the Contractor, the variations are recorded into Variance beta by the Licensee. The defining parameters related to this variation are stored as a ‘New Variation’ in the Licensed Software.

4. For those tasks that are performed by the Contractor after such variation, values of parameters such as personnel hours, plant & equipment hours and materials & consumables are entered into the Licensed Software on a daily basis by the Licensee. The veracity of the data entered cannot be established by the Licensed Software. The Licensed Software would only compute invoices and generate reports based on data entered into it by the licensee. Reports would be generated on a user defined basis.

1.4 "Authorised Personnel" means the employees of the Licensee and the other contractors who work for the Licensee under a contract (which shall include confidentiality clause) entered into by and between the Licensee and the contractors, to the extent that the Authorised Personnel can work on the Licensed Software within the License granted by Article 2.1

1.5 "Upgraded Version" means the Licensed Software comprising of Licensed Program and/or the Licensed Information to which updates, enhancements, corrections, installations of bug patches or other changes have been made. The exterior form of the Updated Version is reflected by changes to the version numbers. For example, in the version number 2.1, a change in the first number from left to right means the occurrence of a later version of the software, and a change in the second number means improvements to the software performance.

1.7 "Confidential Information" means the technical information and management information which are unknown to the public, can bring economic benefit to recipients, have practicability and are subject to the confidential measures adopted by the recipients, including, but not limited to, computer software, technical parameters, price lists, designs, software documentations, manuals, models and account tables. "Confidential Information" also means any information, including, but not limited to, trade secrets, business processes, manufacturing processes, business plans, inventions, techniques, data of any kind, drawings, customer lists, financial statements, sales data, proprietary business information of any sort, research or development projects or results, tests, and / or any non-public information which concerns the business, operations, ideas or plans of Licensor conveyed to the Licensee by any format or means including, but not limited to, written, typed, magnetic, or verbally transmitted.

1.8 "Agreement" means this Agreement and all the supplementary agreements and exhibits signed according to this Agreement.

 

2 GRANT OF LICENSE AND LIMITATIONS

2.1 License of the Licensed Software. In accordance with the terms and conditions hereof, the Licensor agrees to grant to the Licensee, and Licensee agrees to accept, a non-transferable and non-exclusive Designated Server (Individual) license of the Licensed Software, pursuant to which the Licensee shall be allowed to install and operate the Licensed Software only on the Designated Server and to grant to Authorised Personnel the right to use such Licensed Software. For the purposes of clarity, the licensed software may not be used concurrently by more than one user, at any given time unless multiple licenses are obtained

2.2 Reservation of Rights. The Licensee shall not copy or duplicate the Licensed Software or any part thereof except for the purposes of system backup, testing, maintenance or recovery. The Licensee may duplicate the Licensed Information only for internal training provided that all the names, trademark rights, product names, copyright statement and other proprietary right statements of the Licensor are reserved. The Licensor reserves all rights, which are not expressly granted to the Licensee in this Agreement.

2.3 Limitations. The Software is licensed as a single product. Its component parts may not be separated for use on more than one device. The Licensee shall not amend, translate, decrypt the Licensed Software or engage in de-compilation, disassembly or any other acts attempting to detect the source code of the Licensed Software. The licensee further shall not:

1. Rent, lease, lend or provide commercial hosting services with the Licensed Software.

2. Sell the Licensed Software or otherwise transfer it for value, or use it for any purpose other than demonstration, test or evaluation

3. License it on on forward

4. Distribute it commercially

5. Create obscene works, using media elements in the Licensed Software

6. Use the Licensed Information for anything other than internal, non-commercial reference purposes only

7. Use the templates in the Licensed Software, for any non personal commercial purpose or as an independent product

8. Post the templates on the internet, or broadcast them

9. Alter the Licensed Software to overcome restrictions on the license

10. Use the Licensed Software to hack, or disturb anybody online from using internet peacefully

11. Import the Licensed Software contrary to the provisions under the laws applicable to the Licensee

12. Export any element of the Licensed Software, except such reports as make the Licensed Software ‘fit for purpose’

13. Not transfer the Licensed Software, except internally

 

 

3. SERVICES SUPPLIED BY THE LICENSOR

3.1 The Supply of the Licensed Program and the Licensed Information

a. The Licensor shall, upon the purchase of Licensed Software, provide the Licensee with the Licensed Program in the form of object code, and provide no less than one (1) copy of the Licensed Information.

b. The Licensor shall, within five (5) days of the payment by the Licensee according to Article 5.1(a), commence to provide technical support and maintenance services via email only. Licensor and its affiliates may collect and use technical information gathered as part of the product support services provided to Licensee, if any, related to the Licensed Software. Licensor may use this information solely to improve our products or to provide customised services or technologies to Licensee and will not disclose this information in a form that personally identifies the Licensee, except as required by the applicable law.

3.2 Improvements and Enhancements. If, during the term of this Agreement, the Licensee desires to have the Licensor add new functions or make enhancements to the Licensed Software, the Licensee shall notify the Licensor in writing and clearly indicate its requirements. The Licensor shall give the Licensee a written notice if it has been developing a new version containing such requirements or it agrees to satisfy the requirements proposed by the Licensee. Under such circumstances, the Licensee may, at its option, (1) upgrade the Licensed Software pursuant to the upgrade schedule when a new Upgraded Version is available or (2) negotiate with the Licensor in an attempt to reach an agreement in the development of new functions or the improvement of the Licensed Software. Occasionally, some changes in the nature or repairs or corrections may also be made available for download by the Licensor on it website –www.wetwellsoftware.com

3.3 Installation and Use. The Licensor shall not provide the Licensee with services such as the installation and elementary training relating to the Licensed Software.

 

4 FEES

4.1 In consideration of the license granted by the Licensor of the Licensed Software, pursuant to Article 2.1, and the services provided by the Licensor under Article 3.3 above, the Licensee shall refer to the Licensor’s website, http://www.wetwellsoftware.com for a list of applicable fees.

 

5 PAYMENT

5.1 Payments of the fees under Article 4.1 above shall be made as follows:

(a) The Licensee shall pay the Licensor via direct bank transfer or credit card according to the fees established in Article 4.1.

 

6 PROTECTION AND CONFIDENTIALITY

6.1 The Licensee agrees to protect the Confidential Information disclosed by the Licensor by using the same degree of care, but no less than a reasonable degree of care, as the Licensor uses to protect its own similar confidential information. Without the written consent of the Licensor, the Licensee shall not copy, or disclose the Confidential Information to any third party or permit any third party to use such Confidential Information.

6.2 The Licensor hereby represents that the Licensed Software has been developed by the Licensor by investing a great amount of funds, contains various proprietary trade secrets and is proprietarily owned by the Licensor. Hence, the Licensee agrees that, without the express written approval of the Licensor, it will not engage in any of the following activities:

(a) To provide all or any part of the Licensed Software to any party other than the Authorised Personnel;

(b) to make, have made, or license any third party to make, any copy of the Licensed Software, except for the backup of a Licensed Program and certain copies of the Licensed Information which are necessary to be used by the Authorised Personnel when such Authorised Personnel accept training and use the Licensed Software upon approval;

(c) to disclose or permit the disclosure of the Licensed Software to any third party, except for the disclosure of Licensed Software to the Authorised Personnel necessary for enabling the Authorised Personnel to use the Licensed Software.

The limitations mentioned above shall apply to any software system containing the Licensed Software, notwithstanding that such a software system may contain software, which belongs to the Licensee.

6.3 The provisions of this Article 6 shall not apply to the information which (1) is in the public domain; (2) has been acquired by the Licensee by normal means upon the disclosure of the information by the Licensor; (3) is duly obtained by the Licensee directly or indirectly from a third party who has independently developed the information and is entitled to disclose the information to the Licensee, and such disclosure does not directly or indirectly violate the confidentiality obligation of such third party.

Likewise, the provisions of this Article 6 shall not apply to such information which, after the receipt of the information by the Licensee, the information becomes the information in the public domain not as a result of negligence of the Licensee.

6.4 In case of any breach of Article 2.3 and/or Article 6 by the Licensee, the Licensee shall compensate the Licensor for all the losses incurred by the Licensor arising out of such breach.

6.5 In the event of a termination of the Agreement, subject to Article 10, the obligation of this Article 6 will continue to apply for 6 years.

 

7 WARRANTIES ON PERFORMANCE

The Licensor warrants that upon the installation of the Licensed Software on the Designated Server and Operational Computer, the Licensed Software will conform to the specifications as set forth in the Licensed Information. However, the said warranty shall be revoked in the event that any person other than the Licensor and its agents make any amendment or change to the Licensed Software in any manner.

 

8 LIMITATION OF LIABILITY

8.1 The express warranties provided herein are the only warranties made by the Licensor in respect of the Licensed Software and will supersede all other express or implied warranties, including but not limited to any warranties of marketability and warranties for any special purpose.

8.2 Unless otherwise provided in this Article 8, the only remedy available for the Licensee upon any damages or losses arising out of the Licensor's breach of warranties hereunder, or the Licensor's negligence or violation of other responsibilities will be, at the option of the Licensor, to amend the Licensed Software, or replace the Licensed Software with a system having equivalent functions, or to refund the part of license fee corresponding to the faulty part of the Licensed Software and services provided by the Licensor under this Agreement. If there is a malfunction of any part of the Licensed Software and the Licensor decides to refund the license fees, the Parties may terminate this Agreement upon mutual agreements.

8.3 If a malfunction of the Licensed Software occurs solely due to the material negligence or intentional action of the Licensor in relation to the provision of information, materials or services, then the liability of the Licensor shall include any incidental, consequential, or special damages whatsoever, including but not limited to interruption of work, loss of profits, any claims or requests by any third party arising out of such malfunction, or all other commercial damages or losses. However, the said liability of the Licensor shall in no event exceed the total license fees paid by the Licensee to the Licensor under this Agreement. Any breach of warranty as set forth in Article 9 by the Licensor shall not be subject to this Article 8.3.

8.4 If the Licensed Software is disclosed to any third party or used by any unauthorised party solely due to the material negligence or intentional action of the Licensee and such disclosure does not constitute an exception to the Licensee's non-disclosure obligations set forth in Article 6.2 hereof, then the Licensee shall bear all damages and losses incurred by the Licensor. In any event the Licensee shall assume the liability to the Licensor arising out of said disclosure or unauthorised use of the Licensed Software, no matter whether or not the total liability exceeds the license fees of the Licensed Software as set forth in Article 4.1.1 hereof.

 

9 WARRANTIES OF ORIGINALITY

9.1 The Licensor warrants that the Licensed Software does not infringe any copyright, patent or trademark or proprietary information of any third Party.

9.2 In the event of any legal proceedings or claims brought by a third party against the Licensee alleging an infringement of any PRC copyright, patent or trade secrets owned by such third party in connection with the use of the Licensed Software or any part thereof within the scope of the license hereunder, the Licensor will reimburse the Licensee any cost, expense and loss and the litigation fees and attorney fees payable by the Licensee in accordance with the final judgment, provided that (a) the Licensee promptly inform the Licensor of the claims relating to said infringements, (b) the Licensee grants full authorisation to the Licensor and provide the Licensor with all information and assistance necessary for enabling the Licensor to defend the claims, and (c) the Licensor has full control over the defence against the claims and the compromise and settlement of the claims.

9.3 If the Licensee's use of the Licensed Software infringes or, in the Licensor's opinion, is likely to upon the copyright, patent or trade secrets alleged by the third party in the above mentioned claims, the Licensor shall be entitled to adopt any measures to enable the Licensee to continue to use the Licensed Software, or the Licensor may replace with substitutes or modify the Licensed Software so that it will be free of infringement and at the same time achieving the equivalent function as the Licensed Software.

9.4 Notwithstanding any provisions herein, the Licensor shall not be liable for infringement of copyright, patent or trade secret arising out of any of the following circumstances:

(a) The latest version of the Licensed Software, which is free of the said infringement, has been provided to the Licensee for free without any changes, and the Licensee still uses other versions;

(b) The program and data of the Licensed Software has been provided to the Licensee based on extensive studies. The licensee uses the Licensed Software together with other program or data, and had the Licensee not done so, the said infringement would have been avoided. However, the Licensee fails to avoid the use of the Licensed Software together with other program and data;

(c) The Licensee uses the Licensed Software in systems other than the designated CPU operating system.

 

10 TERM AND TERMINATION; RIGHTS AND OBLIGATION PRIOR TO THE TERMINATION OF THE AGREEMENT; FOLLOW-UP WORK

10.1 The term begins from the date on which this Agreement is entered into and executed by all parties hereto.

10.2 In the event that the Licensee breaches any provision of this Agreement, then the Licensor may, in addition to any remedies available and if it deems to be necessary, terminate all the rights granted to the Licensee under this Agreement by giving the Licensee a two (2) months prior written notice stating the breach of the Licensee, unless the Licensee has remedied the breach to the satisfaction of the Licensor or the Licensee has been making continuous endeavour to remedy the breach to the satisfaction of the Licensor during the period stated in said notice.

10.3 This Article is subject to Article 9.3. In the event that this Agreement is terminated, the Licensor is not obliged to refund any payments made by the Licensee hereunder and the Licensee shall promptly make payment of all amounts payable to the Licensor under this Agreement. In addition, the Licensee shall, within thirty (30) days of the termination of this Agreement, return all documents supplied by the Licensor or relating to the Licensed Software to the Licensor, and the Licensee shall list out all the unused Licensed Software packages which are put in any memory units and recorded in any media. The Licensee may keep a copy of the Licensed Software package provided that it shall only use such package for filing purpose. The Licensor is entitled to inspect the use of the Licensed Software by the Licensee at any time so as to verify the compliance of the said obligation of the Licensee.

10.4 In the event that a dispute relating to whether the Licensee is in breach of this Agreement occurs, the Licensee shall not be requested to waive the right of control to the License Software or any part thereof, until a court judgment has been obtained and no party appeal to that judgment.

10.5 No change of owner shall be made by the Licensee. Upon any change of the owner of the Licensee, the Licensor may terminate this Agreement by providing the Licensee with a thirty (30) days prior notice.

10.6 Upon the termination hereof, the Licensee shall return all the Licensed Software to the Licensor.

 

11 APPLICABLE LAWS

The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the Western Australia. The Western Australia state courts shall have exclusive jurisdiction and venue over any dispute arising out of this Agreement, and Licensee hereby consents to the jurisdiction of such courts.

 

12 AMENDMENT OF THE AGREEMENT

No variation of or supplement to this Agreement shall be effective unless the Parties have agreed in writing and have respectively obtained the required authorisations and approvals.

 

13 DISPUTE RESOLUTIONS

Any disputes arising out of or in relation to the performance of this Agreement shall be settled by both Parties hereof through negotiations, and if no settlement is reached through negotiations, any Party may bring a legal proceeding against the other Party in the people's court where the Licensor is dwelled.

 

14 GENERAL PROVISIONS

14.1 This Agreement and the exhibits hereof signed by the Parties constitutes the entire agreement between the Parties hereto with respect to the subject matter hereof, merges all discussions between them and supersedes and replaces any and every other prior or contemporaneous agreement, understanding or negotiation that may have existed between the Parties. No amendment to this Agreement shall be effective until the Parties mutually agree in the form of a written instrument. Headings used herein are for convenience only, are not part of this Agreement, and shall not be used in construing it.

14.2 The Licensee agrees that it will incorporate the name of the Licensed Software and the following wordings into all publications which mention the Licensed Software or the name of the Licensor “This Licensed Software is proprietarily owned by Wetwell Software pty ltd”

14.3 Any notice, payments or other communication to be given in connection with this Agreement shall be in writing. If any communication is personally delivered, then the delivery date shall be the date on which the recipient actually receives the communication. Any communication intended for the Licensor, transmitted by mail, shall be made by registered mail or courier services, and shall be delivered to the address as set forth in the first paragraph hereof, as varied in writing by the Licensor, or to other addresses provided by the Licensee to the Licensor in writing.

14.4 No provision hereof or expression herein shall be deemed as a waiver of rights by any Party, and no consent to a breach of any Party shall be deemed to be an exemption of liabilities of the other Party, unless the Party having such rights acknowledges such waiver or exemption in writing. A Party's express or implicit consent to or waiver of the right of requesting the defaulting Party to assume defaulting liabilities for a breach of hereof shall not operate as a consent, waiver or exemption of requesting the defaulting Party to assume liabilities for other breaches or any breaches hereof in the future.

14.5 If any provision of this agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.

14.5 This Agreement shall be available in a digital format in (a) the compact disc bearing the Licensed Software, (b) the location on the internet where the Licensed Software may be hosted by the Licensor or the Licensee. Upon the Licensee clicking a particular section of this agreement, marked out as ‘accept’, the Agreement shall be deemed to be entered into between the Licensor and the Licensee.

 

END USER LICENSE AGREEMENT (SERVER)

 

This SOFTWARE LICENSING AGREEMENT (this "Agreement") is entered into by and between the following Parties on the date of installation.

Licensor: Wetwell Software pty ltd. including its promoters, directors, employees, assignors and agents

Licensee: The purchaser of (a) a compact disc bearing the software system as described below, either singly or together with other software systems; or (b) rights to use the software system as described below, whether hosted by the Licensor or by the Licensee. This purchase may only be made via the Licensor’s website http://www.wetwellsoftware.com The purchaser may be a person, a proprietorship, partnership, corporation or a business entity structured as per the laws applicable. The terms of this agreement apply to the Licensee and to all who may have access to the CD and its use through the licensee, including but not limited to, his promoters, directors, employees, assignors and agents, howsoever associated.

WHEREAS:

1. The Licensor owns the software system known as the “Variance Beta”.

2. The Licensee desires to obtain the license of the software system mentioned above.

3. The Licensor is willing to provide the Licensee with the license of the software system mentioned above.

NOW THEREFORE, the Parties, through negotiations, agree to enter into this Agreement and the provisions are as follows:

 

1 DEFINITIONS

The terms concerned used in this Agreement are hereby defined as follows:

1.1 "Licensed Program" means the executable processing programs of licensed information, which comprised various modules from the Licensed Software package provided by the Licensor.

1.2 "Licensed Information" means any information concerning the Licensed Program, which is owned by the Licensor and is licensed to the Licensee together with the Licensed Program. Licensed Information includes such information as input form, user manual, interface format and input/output format and is delivered to and used by the Licensee as confidential information or proprietary property of the Licensor.

1.3 “Licensed Software" means “Variance Beta ", including the Licensed Program and the Licensed Information. The Licensed Software is available in English language only. The purpose of the Variance Beta has been set forth in detail in the Licensed Information. This purpose is as a reporting and invoicing program designed primarily for the construction industry; but usable for any construction industry where plant, equipment and personnel are used to perform any construction related task. The Licensed Software will track hours expended by plant, equipment and personnel, as well as materials and consumables purchased to perform construction contract variations. The Licensed Software will produce invoices and reports based on these hours.

1. The Licensee can store the description of a construction project, ‘New Project’, the scope of which is defined between the entity or person in control of the project, ‘Client’, and the provider of construction services, ‘Contractor’, into the Licensed Software. The description would be in the form of variable parameters, based on which the monies that such Contractor may charge to the Client are computed.

2. The Client & Contractor function independently, and their actions are not governed by the Licensed Software. Either of them may use the Licensed Software as the Licensee.

3. The Licensed Software is able to adjust its reports and invoices flexibly to changing charging parameters related to a particular defined New Project stored in it. Where the scope of a New Project changes by mutual agreement between the Client & the Contractor, the variations are recorded into Variance beta by the Licensee. The defining parameters related to this variation are stored as a ‘New Variation’ in the Licensed Software.

4. For those tasks that are performed by the Contractor after such variation, values of parameters such as personnel hours, plant & equipment hours and materials & consumables are entered into the Licensed Software on a daily basis by the Licensee. The veracity of the data entered cannot be established by the Licensed Software. The Licensed Software would only compute invoices and generate reports based on data entered into it by the licensee. Reports would be generated on a user defined basis.

1.4 "Authorised Personnel" means the employees of the Licensee and the other contractors who work for the Licensee under a contract (which shall include confidentiality clause) entered into by and between the Licensee and the contractors, to the extent that the Authorised Personnel can work on the Licensed Software within the License granted by Article 2.1

1.5 "Upgraded Version" means the Licensed Software comprising of Licensed Program and/or the Licensed Information to which updates, enhancements, corrections, installations of bug patches or other changes have been made. The exterior form of the Updated Version is reflected by changes to the version numbers. For example, in the version number 2.1, a change in the first number from left to right means the occurrence of a later version of the software, and a change in the second number means improvements to the software performance.

1.7 "Confidential Information" means the technical information and management information which are unknown to the public, can bring economic benefit to recipients, have practicability and are subject to the confidential measures adopted by the recipients, including, but not limited to, computer software, technical parameters, price lists, designs, software documentations, manuals, models and account tables. "Confidential Information" also means any information, including, but not limited to, trade secrets, business processes, manufacturing processes, business plans, inventions, techniques, data of any kind, drawings, customer lists, financial statements, sales data, proprietary business information of any sort, research or development projects or results, tests, and / or any non-public information which concerns the business, operations, ideas or plans of Licensor conveyed to the Licensee by any format or means including, but not limited to, written, typed, magnetic, or verbally transmitted.

1.8 "Agreement" means this Agreement and all the supplementary agreements and exhibits signed according to this Agreement.

 

2 GRANT OF LICENSE AND LIMITATIONS

2.1 License of the Licensed Software. In accordance with the terms and conditions hereof, the Licensor agrees to grant to the Licensee, and Licensee agrees to accept, a non-transferable and non-exclusive Designated Computer (Network) license of the Licensed Software, pursuant to which the Licensee shall be allowed to install and operate the Licensed Software only on the Designated Computer Network and to grant to Authorised Persons the right to use such Licensed Software.

2.2 Reservation of Rights. The Licensee shall not copy or duplicate the Licensed Software or any part thereof except for the purposes of system backup, testing, maintenance or recovery. The Licensee may duplicate the Licensed Information only for internal training provided that all the names, trademark rights, product names, copyright statement and other proprietary right statements of the Licensor are reserved. The Licensor reserves all rights, which are not expressly granted to the Licensee in this Agreement.

2.3 Limitations. The Software is licensed as a single product. Its component parts may not be separated for use on more than one device. The software should be installed as a whole on each device in the Network. The Licensee shall not amend, translate, decrypt the Licensed Software or engage in de-compilation, disassembly or any other acts attempting to detect the source code of the Licensed Software. The licensee further shall not, outside the Designated Computer Network:

1. Rent, lease, lend or provide commercial hosting services with the Licensed Software.

2. Sell the Licensed Software or otherwise transfer it for value, or use it for any purpose other than demonstration, test or evaluation

3. License it on forward

4. Distribute it commercially

5. Create obscene works, using media elements in the Licensed Software

6. Use the Licensed Information for anything other than internal, non-commercial reference purposes only

7. Use the templates in the Licensed Software, for any non personal commercial purpose or as an independent product

8. Post the templates on the internet, or broadcast them

9. Alter the Licensed Software to overcome restrictions on the license

10. Use the Licensed Software to hack, or disturb anybody online from using internet peacefully

11. Import the Licensed Software contrary to the provisions under the laws applicable to the Licensee

12. Export any element of the Licensed Software, except such reports as make the Licensed Software ‘fit for purpose’

13. Not transfer the Licensed Software, except internally

 

 

3. SERVICES SUPPLIED BY THE LICENSOR

3.1 The Supply of the Licensed Program and the Licensed Information

a. The Licensor shall, upon the purchase of Licensed Software, provide the Licensee with the Licensed Program in the form of object code, and provide no less than one (1) copy of the Licensed Information.

b. The Licensor shall, within five (5) days of the payment by the Licensee according to Article 5.1(a), commence to provide technical support and maintenance services via email only. Licensor and its affiliates may collect and use technical information gathered as part of the product support services provided to Licensee, if any, related to the Licensed Software. Licensor may use this information solely to improve our products or to provide customised services or technologies to Licensee and will not disclose this information in a form that personally identifies the Licensee, except as required by the applicable law.

3.2 Improvements and Enhancements. If, during the term of this Agreement, the Licensee desires to have the Licensor add new functions or make enhancements to the Licensed Software, the Licensee shall notify the Licensor in writing and clearly indicate its requirements. The Licensor shall give the Licensee a written notice if it has been developing a new version containing such requirements or it agrees to satisfy the requirements proposed by the Licensee. Under such circumstances, the Licensee may, at its option, (1) upgrade the Licensed Software pursuant to the upgrade schedule when a new Upgraded Version is available or (2) negotiate with the Licensor in an attempt to reach an agreement in the development of new functions or the improvement of the Licensed Software. Occasionally, some changes in the nature or repairs or corrections may also be made available for download by the Licensor on its website – http://www.wetwellsoftware.com

3.3 Installation and Use. The Licensor shall not provide the Licensee with services such as the installation and elementary training relating to the Licensed Software. The Licensor is not responsible in any manner for any technical problem, arising in the Licensee’s Designated Computer Network in using the Software.

 

4 FEES

4.1 In consideration of the license granted by the Licensor of the Licensed Software, pursuant to Article 2.1, and the services provided by the Licensor under Article 3.3 above, the Licensee shall refer to the Licensor’s website, http://www.wetwellsoftware.com for a list of applicable fees.

 

5 PAYMENT

5.1 Payments of the fees under Article 4.1 above shall be made as follows:

(a) The Licensee shall pay the Licensor via direct bank transfer or credit card according to the fees establish in Article 4.1

 

6 PROTECTION AND CONFIDENTIALITY

6.1 The Licensee agrees to protect the Confidential Information disclosed by the Licensor by using the same degree of care, but no less than a reasonable degree of care, as the Licensor uses to protect its own similar confidential information. Without the written consent of the Licensor, the Licensee shall not copy, or disclose the Confidential Information to any third party or permit any third party to use such Confidential Information.

6.2 The Licensor hereby represents that the Licensed Software has been developed by the Licensor by investing a great amount of funds, contains various proprietary trade secrets and is proprietarily owned by the Licensor. Hence, the Licensee agrees that, without the express written approval of the Licensor, it will not engage in any of the following activities:

(a) To provide all or any part of the Licensed Software to any party other than the Authorised Personnel;

(b) to make, have made, or license any third party to make, any copy of the Licensed Software, except for the backup of a Licensed Program and certain copies of the Licensed Information which are necessary to be used by the Authorised Personnel when such Authorised Personnel accept training and use the Licensed Software upon approval;

(c) to disclose or permit the disclosure of the Licensed Software to any third party, except for the disclosure of Licensed Software to the Authorised Personnel necessary for enabling the Authorised Personnel to use the Licensed Software.

The limitations mentioned above shall apply to any software system containing the Licensed Software, notwithstanding that such a software system may contain software, which belongs to the Licensee.

6.3 The provisions of this Article 6 shall not apply to the information which (1) is in the public domain; (2) has been acquired by the Licensee by normal means upon the disclosure of the information by the Licensor; (3) is duly obtained by the Licensee directly or indirectly from a third party who has independently developed the information and is entitled to disclose the information to the Licensee, and such disclosure does not directly or indirectly violate the confidentiality obligation of such third party.

Likewise, the provisions of this Article 6 shall not apply to such information which, after the receipt of the information by the Licensee, the information becomes the information in the public domain not as a result of negligence of the Licensee.

6.4 In case of any breach of Article 2.3 and/or Article 6 by the Licensee, the Licensee shall compensate the Licensor for all the losses incurred by the Licensor arising out of such breach.

6.5 In the event of a termination of the Agreement, subject to Article 10, the obligation of this Article 6 will continue to apply for 6 years.

6.6 The Licensor is not responsible in any manner for the loss of any confidential information of the Licensee while using the software in Licensee’s Designated Computer Network.

 

7 WARRANTIES ON PERFORMANCE

The Licensor warrants that upon the installation of the Licensed Software on the Designated Computer, the Licensed Software will conform to the specifications as set forth in the Licensed Information. However, the said warranty shall be revoked in the event that any person other than the Licensor and its agents make any amendment or change to the Licensed Software in any manner.

 

8 LIMITATION OF LIABILITY

8.1 The express warranties provided herein are the only warranties made by the Licensor in respect of the Licensed Software and will supersede all other express or implied warranties, including but not limited to any warranties of marketability and warranties for any special purpose.

8.2 Unless otherwise provided in this Article 8, the only remedy available for the Licensee upon any damages or losses arising out of the Licensor's breach of warranties hereunder, or the Licensor's negligence or violation of other responsibilities will be, at the option of the Licensor, to amend the Licensed Software, or replace the Licensed Software with a system having equivalent functions, or to refund the part of license fee corresponding to the faulty part of the Licensed Software and services provided by the Licensor under this Agreement. If there is a malfunction of any part of the Licensed Software and the Licensor decides to refund the license fees, the Parties may terminate this Agreement upon mutual agreements.

8.3 If a malfunction of the Licensed Software occurs solely due to the material negligence or intentional action of the Licensor in relation to the provision of information, materials or services, then the liability of the Licensor shall include any incidental, consequential, or special damages whatsoever, including but not limited to interruption of work, loss of profits, any claims or requests by any third party arising out of such malfunction, or all other commercial damages or losses. However, the said liability of the Licensor shall in no event exceed the total license fees paid by the Licensee to the Licensor under this Agreement. Any breach of warranty as set forth in Article 9 by the Licensor shall not be subject to this Article 8.3.

8.4 If the Licensed Software is disclosed to any third party or used by any unauthorised party solely due to the material negligence or intentional action of the Licensee and such disclosure does not constitute an exception to the Licensee's non-disclosure obligations set forth in Article 6.2 hereof, then the Licensee shall bear all damages and losses incurred by the Licensor. In any event the Licensee shall assume the liability to the Licensor arising out of said disclosure or unauthorised use of the Licensed Software, no matter whether or not the total liability exceeds the license fees of the Licensed Software as set forth in Article 4.1.1 hereof.

 

9 WARRANTIES OF ORIGINALITY

9.1 The Licensor warrants that the Licensed Software does not infringe any copyright, patent or trademark or proprietary information of any third Party.

9.2 In the event of any legal proceedings or claims brought by a third party against the Licensee alleging an infringement of any PRC copyright, patent or trade secrets owned by such third party in connection with the use of the Licensed Software or any part thereof within the scope of the license hereunder, the Licensor will reimburse the Licensee any cost, expense and loss and the litigation fees and attorney fees payable by the Licensee in accordance with the final judgment, provided that (a) the Licensee promptly inform the Licensor of the claims relating to said infringements, (b) the Licensee grants full authorisation to the Licensor and provide the Licensor with all information and assistance necessary for enabling the Licensor to defend the claims, and (c) the Licensor has full control over the defence against the claims and the compromise and settlement of the claims.

9.3 If the Licensee's use of the Licensed Software infringes or, in the Licensor's opinion, is likely to upon the copyright, patent or trade secrets alleged by the third party in the above mentioned claims, the Licensor shall be entitled to adopt any measures to enable the Licensee to continue to use the Licensed Software, or the Licensor may replace with substitutes or modify the Licensed Software so that it will be free of infringement and at the same time achieving the equivalent function as the Licensed Software.

9.4 Notwithstanding any provisions herein, the Licensor shall not be liable for infringement of copyright, patent or trade secret arising out of any of the following circumstances:

(a) The latest version of the Licensed Software, which is free of the said infringement, has been provided to the Licensee for free without any changes, and the Licensee still uses other versions;

(b) The program and data of the Licensed Software has been provided to the Licensee based on extensive studies. The licensee uses the Licensed Software together with other program or data, and had the Licensee not done so, the said infringement would have been avoided. However, the Licensee fails to avoid the use of the Licensed Software together with other program and data;

(c) The Licensee uses the Licensed Software in systems other than the designated CPU operating system.

 

10 TERM AND TERMINATION; RIGHTS AND OBLIGATION PRIOR TO THE TERMINATION OF THE AGREEMENT; FOLLOW-UP WORK

10.1 The term begins from the date on which this Agreement is entered into and executed by all parties hereto.

10.2 In the event that the Licensee breaches any provision of this Agreement, then the Licensor may, in addition to any remedies available and if it deems to be necessary, terminate all the rights granted to the Licensee under this Agreement by giving the Licensee a two (2) months prior written notice stating the breach of the Licensee, unless the Licensee has remedied the breach to the satisfaction of the Licensor or the Licensee has been making continuous endeavour to remedy the breach to the satisfaction of the Licensor during the period stated in said notice.

10.3 This Article is subject to Article 9.3. In the event that this Agreement is terminated, the Licensor is not obliged to refund any payments made by the Licensee hereunder and the Licensee shall promptly make payment of all amounts payable to the Licensor under this Agreement. In addition, the Licensee shall, within thirty (30) days of the termination of this Agreement, return all documents supplied by the Licensor or relating to the Licensed Software to the Licensor, and the Licensee shall list out all the unused Licensed Software packages which are put in any memory units and recorded in any media. The Licensee may keep a copy of the Licensed Software package provided that it shall only use such package for filing purpose. The Licensor is entitled to inspect the use of the Licensed Software by the Licensee at any time so as to verify the compliance of the said obligation of the Licensee.

10.4 In the event that a dispute relating to whether the Licensee is in breach of this Agreement occurs, the Licensee shall not be requested to waive the right of control to the License Software or any part thereof, until a court judgment has been obtained and no party appeal to that judgment.

10.5 No change of owner shall be made by the Licensee. Upon any change of the owner of the Licensee, the Licensor may terminate this Agreement by providing the Licensee with a thirty (30) days prior notice.

10.6 Upon the termination hereof, the Licensee shall return all the Licensed Software to the Licensor.

 

11 APPLICABLE LAWS

The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the Western Australia. The Western Australia state courts shall have exclusive jurisdiction and venue over any dispute arising out of this Agreement, and Licensee hereby consents to the jurisdiction of such courts.

 

12 AMENDMENT OF THE AGREEMENT

No variation of or supplement to this Agreement shall be effective unless the Parties have agreed in writing and have respectively obtained the required authorisations and approvals

 

13 DISPUTE RESOLUTIONS

Any disputes arising out of or in relation to the performance of this Agreement shall be settled by both Parties hereof through negotiations, and if no settlement is reached through negotiations, any Party may bring a legal proceeding against the other Party in the people's court where the Licensor is dwelled.

 

14 GENERAL PROVISIONS

14.1 This Agreement and the exhibits hereof signed by the Parties constitutes the entire agreement between the Parties hereto with respect to the subject matter hereof, merges all discussions between them and supersedes and replaces any and every other prior or contemporaneous agreement, understanding or negotiation that may have existed between the Parties. No amendment to this Agreement shall be effective until the Parties mutually agree in the form of a written instrument. Headings used herein are for convenience only, are not part of this Agreement, and shall not be used in construing it.

14.2 The Licensee agrees that it will incorporate the name of the Licensed Software and the following wordings into all publications which mention the Licensed Software or the name of the Licensor ’This Licensed Software is proprietarily owned by Wetwell Software pty ltd’.

14.3 Any notice, payments or other communication to be given in connection with this Agreement shall be in writing. If any communication is personally delivered, then the delivery date shall be the date on which the recipient actually receives the communication. Any communication intended for the Licensor, transmitted by mail, shall be made by registered mail or courier services, and shall be delivered to the address as set forth in the first paragraph hereof, as varied in writing by the Licensor, or to other addresses provided by the Licensee to the Licensor in writing.

14.4 No provision hereof or expression herein shall be deemed as a waiver of rights by any Party, and no consent to a breach of any Party shall be deemed to be an exemption of liabilities of the other Party, unless the Party having such rights acknowledges such waiver or exemption in writing. A Party's express or implicit consent to or waiver of the right of requesting the defaulting Party to assume defaulting liabilities for a breach of hereof shall not operate as a consent, waiver or exemption of requesting the defaulting Party to assume liabilities for other breaches or any breaches hereof in the future.

14.5 If any provision of this agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.

14.5 This Agreement shall be available in a digital format in (a) the compact disc bearing the Licensed Software, (b) the location on the internet where the Licensed Software may be hosted by the Licensor or the Licensee. Upon the Licensee clicking a particular section of this agreement, marked out as ‘accept’, the Agreement shall be deemed to be entered into between the Licensor and the Licensee.