Software Licence Agreement
1. Definitions and interpretation
In this agreement:
Business Day means a day that is not a Saturday, Sunday or public holiday and on which banks are open for business in Sydney, New South Wales.
Confidential Information means the confidential information of a party which relates to the subject matter of this agreement and includes:
(a) confidential information relating to the Software;
(b) information relating to the personnel, policies or business strategies of a party;
(c) information relating to the terms upon which the Software has been supplied pursuant to this agreement
Consequential Damages means special, incidental, indirect, exemplary, punitive or consequential damages, loss of revenue, loss of profits, loss of production, loss of data, loss of goodwill or credit, loss of reputation or future reputation or publicity, loss of use, loss of interest, damage to credit rating, loss or denial of opportunity, loss of anticipated savings, or increased or wasted overhead costs, or which relates to additional expenses incurred or rendered futile; or which is not a natural or immediate consequence of the cause of action; or which is suffered as a result of a claim by a third party; or which consists of a claim for personal injury or damage to property, whether in contract, tort, statute or otherwise.
Device. In this agreement, “device” means a hardware system (either a single device or group of devices) approved by Pempek. Without express written authorisation provided by Pempek, this means a device or group of devices manufactured and supplied by Pempek.
Licensee is the person or company to who Pempek has supplied the devices and who intends to use the software.
Licensor is Pempek.
Software. Pempek Firmware is software that interacts directly with hardware. It might turn on a motor, answer a field bus message, a valve or drive a solenoid. Firmware is generally stored in flash memory or within another memory device or within a microprocessor which is closely linked to the hardware. Firmware is generally installed in the device at manufacture and usually remains unchanged throughout the life of the product. Pempek Software Is Input Output systems that interface the firmware to the application layer and software libraries and or code that Pempek application engineers would amend in order to control the actions of the devices is such a way as to realise the custom features of the specific application such as the defined operations of a miner. In this agreement, “software” is all of this code and the related system logical design and related system physical design including wiring layouts.
Software Lock means a technical mechanism (including a software lock or software key), the purpose of which is to manage the proper use of the Software (which may include being capable of disabling or reducing the functionality or performance of all or any part of the Software).
In this agreement unless the context requires otherwise:
(a) reference to a person includes any other entity recognized by law and vice versa;
(b) the singular includes the plural and vice versa;
(c) one gender includes every gender;
(d) clause headings are for reference purposes only;
(e) reference to a party to includes that party’s executors, administrators, successors (including any entity resulting from a permitted amalgamation), permitted assigns and substitutes; and
(f) reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of it.
1.3 Time & Duration of agreement
The Term shall commence on the date of supply of the Device and or Software.
2. License of Software
Subject to this agreement, the software is licensed not sold. Under this agreement Pempek grants you the right to run one instance of the software on a device on a Pempek product.
2.2 Use of Software
Licensee must use the Software only for the purpose of operating the Device;
2.3 Licensee’s obligations in using the Software
(a) Other than as expressly permitted by this Agreement, Licensee shall not do or permit anything to be done in respect of the Software. Without limiting the preceding sentence, Licensee shall not:
- (i) use or virtualize features of the Software separately to the Device;
- (ii) remove or modify any Software markings or any notice of Licensor’s rights;
- (iii) publish, distribute or transmit, lend or lease any part of the Software by any means other than a copy maintained for the purposes of system backup.
- (iv) modify or copy the Software or create any derivative works based on the Software;
- (v) reverse assemble, reverse compile or disassemble, or directly or indirectly allow or cause a third party to reverse assemble, reverse compile or disassemble the whole or any part of the Software;
- (vi) access the Software in order to build any commercially available product or service; or
(vii) modify, copy or create derivative works of any features, functions, integrations, interfaces or graphics of the Software.
- (viii) transfer the software (except as permitted by this agreement);
(ix) work around any technical restrictions or limitations in the software;
- (x) The Licensee shall not interface to Pempek hardware in any way other than by using Pempek licensed software and Pempek proprietary control systems and hardware
(b) Licensee shall use reasonable efforts to prevent unauthorised third parties from accessing or using the Software and notify Licensor promptly of any unauthorised access or use.
(c) Licensee agrees not to make or permit any use of the Software in a way that is unacceptable. Use is unacceptable if:
- (i) it involves anything which is false, defamatory, harassing or obscene;
- (ii) it involves unsolicited electronic messages;
- (iii) it would involve the contravention of any person’s rights (including intellectual property rights);
- (iv) it may offend any laws; or
- (v) it may otherwise be regarded by Licensor, on reasonable grounds, to be unacceptable (Licensor may from time to time notify Licensee of the circumstances which Licensor regards as unacceptable).
- (vi) the Licensee utilises an ex-employee or contractor of Pempek who has access to confidential and/or commercially sensitive Pempek software code and uses a version of that code to access or interface with a Pempek product.
2.4 Software Locks
(a) Licensee acknowledges that the Software may contain Software Locks.
(b) Without limiting the use of the Software Locks, where, in Licensor’s opinion, Licensee is or may be in breach of clause 2 or 6, Licensor may use the Software Lock to disable or reduce the functionality of the Software.
(a) Licensee shall be solely responsible for the use, supervision, management, and control of the Software.
(b) Licensee shall ensure that the Software is protected at all times from misuse, damage, destruction, or any form of unauthorised use.
(a) From time to time Licensor may (but is not obliged to) issue a software update. Updates supplied by Licensor and installed according to Licensor’s instructions form part of the Software.
(b) For clarity:
(i) the Software is provided “as is” and Licensor does not warrant that operation of the Software will be uninterrupted or error-free; and
(ii) Licensor has no obligation to provide support (such as defects fixes, updates, and new releases).
The licensee may transfer the license to use the software directly to another user, only with the licensed device. Before any permitted transfer, the other party must agree that this agreement applies to the transfer and use of the software.
6. Intellectual property
6.1 Intellectual property rights
Licensor owns all rights, including intellectual property rights, title, and interest in anything developed or provided under this agreement (including the Software).
6.2 Licensee acknowledgments
(a) this agreement grants Licensee no title or rights of ownership in the Software or any components;
(b) the Software is the Confidential Information of Licensor;
(c) the Software and any components, and all copies made by Licensee, including translations, derivatives, compilations, and partial copies, and all patches, revisions, and updates are and remain the property of Licensor;
(d) none of the provisions of this agreement will prevent Licensor, its affiliates, agents or employees from using the general skills and knowledge gained while performing duties under this agreement.
6.3 Reservation of rights by Licensor
Except for those limited rights expressly granted to Licensee under this agreement, Licensor reserves all other rights in the Software, including without limitation, the right to pursue actions against infringers. No rights are granted to Licensee other than as expressly set out in this agreement.
(a) A party shall not, without the prior written approval of the other party, disclose the other party's Confidential Information.
(b) A party shall not be in breach of clause 7(a) in circumstances where it is legally compelled to disclose the other party's Confidential Information.
(c) Each party shall take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this agreement, do not make public or disclose the other party's Confidential Information.
(d) This clause shall survive the termination of this agreement.
8. Employees and contractors
(a) The Licensee shall not solicit for employment, either directly or indirectly, any person who is or was employed or contracted by the Licensor.
(b) The Licensee shall promptly advise and seek approval from the Licensor if a person who is or was employed or contracted by the Licensor seeks to be employed or contracted by the Licensee.
(c) The Licensor approval in (b) can only be granted by the Pempek Board of Directors.
9. Liability and indemnity
9.1 Limitation of liability
(a) To the extent permitted by law, Licensor, its officers, employees, agents, contractors or suppliers, are not liable for Consequential Damages even if Licensor, its officers, employees, agents, contractors or suppliers are aware of the possibility of those Consequential Damages.
(b) Licensor’s liability (other than that addressed in clause 9.1(a)), whether in contract, tort, statute or otherwise, to Licensee or any third party concerning performance or nonperformance by Licensor or in any manner related to this agreement, for all claims, is limited in the aggregate to an amount equal to the value of the purchase price of the individual device and software part of any claim as paid by Licensee.
Licensee indemnifies and will defend Licensor and its employees, officers, and agents (those indemnified) from and against any loss or damage (including reasonable legal costs and expenses) or liability incurred or suffered by those indemnified resulting from:
(a) a breach by Licensee of its obligations under this agreement; or
(b) any willful, unlawful or negligent act or omission of Licensee.
The parties acknowledge that monetary damages alone may be an inadequate remedy for breach of the Licensee’s obligations under clause 2 or 6. In addition to any other remedy that may be available in law or equity, the Licensor may be entitled to interlocutory injunctive relief to prevent any conduct or threatened conduct which is or would be a breach of those clauses and to compel specific performance of this agreement.
(a) Any dispute arising in connection with this agreement that cannot be settled by negotiation between the parties or their representatives shall be submitted to arbitration in accordance with the Rules for the Conduct of Commercial Arbitrations for the time being of the Institute of Mediators & Arbitrators Australia. During such arbitration, both parties may be legally represented.
(b) Prior to referring a matter to arbitration pursuant to clause 10(a), the parties shall:
- (i) formally refer the dispute to their respective managers for consideration;
- (ii) if the respective managers are unable to resolve the dispute after 21 days (or such other period as is agreed between the parties) from the date of referral, refer the dispute to the respective chief executive officers of each party; and
- (iii) in good faith explore the prospect of mediation.
(c) Nothing in this clause shall prevent a party from seeking urgent equitable relief before an appropriate court.
(a) Licensor may assign, novate or otherwise transfer any of its rights or obligations under this agreement to a third party without notice to, or the prior consent of, Licensee, but if Licensor requires, Licensee will sign any documents to give effect to an assignment, novation or transfer by Licensor under this clause.
(b) Licensee will not transfer or assign its rights under this agreement without Licensor’s prior written consent (which may be given or withheld in Licensor’s absolute discretion).
11.2 Governing law
This agreement will be governed by the laws of New South Wales, Australia. The parties submit to the non-exclusive jurisdiction of the courts of that State.
If any provisions of the agreement or the application of any such provision shall be held by a tribunal of competent jurisdiction to be contrary to law, the remaining provisions of this agreement shall continue in full force and effect.
11.4 Waivers and modifications
The waiver, amendment, or modification of this agreement or any right hereunder shall not be effective unless made in writing and signed by an authorised representative of both parties.
The authorised representative of Pempek is the Board of Directors.
(a) Any notice, approval, request, demand or other communication (notice) to be given for the purposes of this agreement must be in writing and must be:
- (i) served personally; or
- (ii) sent by ordinary or registered post – person to person mail (airmail if overseas) to the address of the party specified in this agreement (or such other address as that party notifies in writing); or
- (iii) sent by facsimile transmission to the facsimile number that that party has specified in this agreement, (or such other facsimile number as that party notifies in writing).
(b) A notice is given:
- (i) personally will be served on delivery;
- (ii) by post will be served seven days after posting;
- (iii) by facsimile transmission will be served on receipt of a transmission report by the machine from which the facsimile was sent indicating that the facsimile had been sent in its entirety to the facsimile number specified in this agreement or such other number as may have been notified by the receiving party. If the facsimile has not been completely transmitted by 5:00 pm (determined by reference to the time of day at the recipient’s address) it will be deemed to have been served on the next day.
11.6 Entire understanding
(a) This agreement contains the entire understanding and agreement between the parties as to the subject matter of this agreement.
(b) All previous negotiations, understandings, representations, warranties, memoranda, or commitments in relation to, or in any way affecting, the subject matter of this agreement are merged in and superseded by this agreement and will be of no force or effect and no party will be liable to any other party in respect of those matters.
(c) No oral explanation or information provided by any party to another will affect the meaning or interpretation of this agreement or constitute any collateral agreement, warranty, or understanding between any of the parties.
Both parties agree that each is free to enter into similar agreements with other persons.