Pempek Systems Pty Ltd (‘Pempek’) Terms and Conditions
- Pempek Website Terms and Conditions of Use
- Pempek May revise its Terms and Conditions
- Pempek Legal Notice
- Pempek Intellectual Property Licence Agreement
Pempek Terms and Conditions for the Supply of Goods and Services
1. Definitions and Interpretation
1.1 "Customer" means the purchaser of the Goods specified on Pempek's invoice.1.3 "Goods" means the goods specified in Pempek's invoice. The goods may include, incorporate or comprise ofPempek Software and or other Pempek Intellectual Property, in which case the terms of the Licence Agreement also applies.
1.4 “Intellectual Property Rights” has the meaning given to that term in the Licence Agreement.
1.5 “Licence Agreement” means Pempek’s Intellectual Property Licence Agreement, accessible here.
1.6 “Pempek” means Pempek Systems Pty Ltd (ACN 622 172 721).
1.7 “Pempek Hardware” has the meaning given to that term in the Licence Agreement.
1.8 “Pempek Intellectual Property” has the meaning given to that term in the Licence Agreement.
1.9 “Pempek Software” has the meaning given to that term in the Licence Agreement.
1.10 "Price" means the price specified on Pempek's invoice;
1.11 “Services” means the services provided by Pempek as specified in Pempek’s invoice, and as otherwise provided by Pempek incidental or ancillary to Pempek’s provision of Goods;
1.12 “Site” means any website owned or operated by Pempek, including the following: https://pempek.com.au/
1.13 Words imputing singular include the plural and vice versa;
1.14 Words imputing natural persons include corporations and vice versa;
1.15 Nothing in these terms and conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding restricting or modifying any condition, warranty, guarantee right or remedy implied by law and which by law cannot be excluded, restricted or modified.
2. Terms of Sale
2.1 These Terms and Conditions shall apply to and be terms and conditions of any contract formed as a result of acceptance by Pempek of an offer made by the Customer and shall in the event and to the extent of any inconsistencies prevail over all terms and conditions contained in any offer, order or other document submitted to Pempek by the Customer unless other Terms and Conditions agreed by Pempek and in effect concurrently with any contract the subject of these Terms and Conditions.
3.1 Pempek shall use reasonable endeavours to comply with any reasonable time requested or specified for the delivery of the Goods by the Customer.
3.2 The Customer acknowledges that any delivery times are estimated delivery times only and that Pempek shall not be liable to the Customer for any loss, damage or delay whatsoever occasioned to the Customer or any other person as a direct or indirect result of late delivery or non-delivery of the Goods or any part of the Goods.
3.3 The Customer agrees to pay the delivery charge as charged by Pempek for delivering goods.
4.1 Unless otherwise stated in writing, all prices quoted by Pempek shall be in Australian Dollars.
4.2 Unless the subject of a written quotation, if the cost to Pempek of any Goods increases for any reason whatsoever before the Price is paid to Pempek by the Customer, then Pempek may increase the Price to cover the increased cost and the Customer shall pay to Pempek the increased Price.
5. Payment / Retention of Title
5.1 Unless other credit terms have been agreed in writing, the Customer shall pay Pempek the Price of the Goods in full prior to despatch of the Goods.
5.2 Where payment is not made by the Customer in accordance with Clause 5.1, or any other payment terms agreed in writing between Pempek and the Customer, then notwithstanding and without prejudice to any of its other rights, Pempek may do any one or more of the following;
5.2.1 Charge interest on the daily outstanding balance of all amounts due and payable at the rate of 1.5%per month from the due date until the payment is received by Pempek, such interest to be paid by the Customer forthwith on demand or failing demand contemporaneously with the payment of such outstanding balances;
5.2.2 withhold delivery of the Goods or any part of the Goods not delivered to the Customer;
5.2.3 where Pempek has despatched the Goods, stop the Goods in transit;
5.2.4 where the Goods have been delivered to the Customer, enter the premises of the Customer (where the Goods are located) without liability for trespass or any resulting damage and take possession of the Goods or mark the goods as property of Pempek;
5.2.5 keep or re-sell any Goods repossessed pursuant to Clause 5.2.4.
5.3 Until payment is made by the Customer in full, the Customer;
5.3.1 must not sell, charge, dispose of or otherwise deal with the Goods in any manner whatsoever save with the express consent in writing of Pempek;
5.3.2 must hold the Goods in a dry and safe location as the fiduciary agent and bailee of Pempek but at the Customer's own risk;
5.3.3 must keep the Goods so that they can be clearly identified as belonging to the Pempek;
5.3.4 must deliver up the Goods to Pempek as and when required;
5.3.5 must so long as Pempek is entitled to the property in the Goods, store the Goods so that they are clearly identifiable as the property of Pempek.
5.3.6 must not use the Goods in any manufacturing process or otherwise change their character or incorporate them in any item without the prior written consent of Pempek;
5.3.7 in the event that the Customer has used the Goods in some manufacturing or construction process of its own or that of some third party, then the Customer shall hold such part of the proceeds of such manufacturing or construction process as relates to the Goods in trust for Pempek. Such part shall be deemed to equal in dollar terms the amount owing by the Customer to Pempek at the time of the receipt of such proceeds;
5.3.8 until payment has been made by the Customer in full, Pempek may at any time, on reasonable notice to the Customer, either by its own officers or employees or by contractors or agents, carry out an inspection of all premises, inventory, accounts, and documentation to ensure compliance with the obligation of the Customer to keep separate accounts, records, and storage of the Goods.
5.4 Pempek shall charge and the Customer agrees to pay to Pempek a two percent (2%) surcharge calculated on the value of all payments made by credit card by the Customer for the Goods.
5.5 In the event that the Customer is a sole trader or trustee of a trading trust Pempek reserves the right in addition to its reliance upon the retention of title provisions referred to herein, in its sole discretion, to register a security interest in respect of any goods provided on credit in accordance with its rights pursuant to The Personal Property Securities Act 2009 and the Customer agrees to execute any and all documents to assist with the registration of the relevant security interest.
6. Title & Risk
6.1 Title of the Goods shall not pass to the Customer until payment is made in full of the Price to Pempek.
6.2 The Customer shall in the meantime take custody of the Goods and retain them as the fiduciary agent and bailee of Pempek.
6.2.1 The Customer may resell the Goods but only as a fiduciary agent of Pempek.
6.2.2 Pending resale or utilisation in any manufacturing or construction process, to be kept separate on its own, properly stored, protected, and insured.
6.2.3 The Customer will receive all proceeds whether tangible or intangible, direct or indirect of any dealing with the Goods in trust for Pempek and will keep such proceeds in a separate account until the liability to Pempek has been discharged.
6.3 Risk of loss or damage to the Goods passes to the Customer upon despatch of the Goods to the Customer.
6.4 Pempek shall not be liable to the Customer or any other person for any loss, deterioration of, or damage to Goods in transit.
7. Limitation of Liability/Indemnity by Pempek
7.1 It is acknowledged and agreed by the parties that the extent of the indemnity provided by Pempek to its Customers pursuant to these terms and conditions shall only extend directly to the Customer and any and such indemnity shall only extend to any and all damage based solely on an assessment and proof of the failure of the Goods supplied by Pempek to the Customer and only any and all direct loss and or damage associated with the Goods failure and no consequential damage whatsoever.
8. Expiration of Provision of Credit
Any agreement for the provision of credit to the Customer agreed to by Pempek shall expire if any of the following events occur:-
8.1 Any money owing by the Customer to Pempek is not paid on or before its due date;
8.2 The Customer being a company – any application is made for the winding up or the appointment of a receiver and/or administrator and/or controller to the Customer;
8.3 The Customer is an individual – enters into a composition of its creditors or any execution on a judgment is not satisfied in full;
8.4 The Customer does anything that is a fundamental breach of the agreement between the parties. Upon the happening of any of the above events, any and all credit granted by Pempek to the Customer will automatically expire and any and all monies due by the Customer to Pempek at that time shall become immediately due and payable.
Pempek's liability shall extend only to the repair or replacement of goods under warranty consistent with clause 7.1 above;
9.1 12 month warranty for parts and labour (repair or replace) for all part numbers that have a prefix 'L'.
9.2 3 month warranty for parts and labour (repair or replace or refurbished) for Repairs made outside the warranty term.
9.3 Pempek shall not be liable in any manner whatsoever either to repair or replace goods if the goods purchased by the Customer from Pempek have been used incorrectly or misused or tampered with.
9.4 Pempek's liability under any warranty will be automatically discharged if the static sensitive devices in the goods supplied have been tampered with, whether by the Customer or any third party and it is Pempek's opinion that any and all failure of the goods supplied has occurred as a result of the static-sensitive device having been tampered with.
9.5 Pempek's liability under any warranty will be automatically discharged if the goods supplied have been tampered with, whether by the Customer or any third party.
9.6 Pempek's liability under any warranty will be automatically discharged if it is found that the Customer has not complied with the terms of the Pempek Software License.
10.1 Pempek warrants that it has and will maintain with a reputable insurance company and keep in effect at all times during the term of this agreement, insurance with a reputable insurer to cover every event giving rise to any liability or obligation imposed upon or arising from any breach of these terms and conditions by Pempek to the limits of that insurance.
11. Cancellation of Orders
11.1 Upon cancellation of a written order, the Customer must put the same in writing and forward to Pempek immediately. Goods that are manufactured to client order cannot be cancelled.
12.1 Returns for credit of goods supplied will be accepted at the sole discretion of Pempek and must be received within 14 days.
12.2 In certain circumstances, a restocking charge may apply for returned goods, or should goods be returned for repair and are found to be non-faulty, an AU $45 per half-hour service fee may be charged.
12.3 To be entitled to a return for credit, the returned goods must be in a complete format with unmarked packaging and manuals.
Note: All requests for return, repair, and or credit should be made via email to email@example.com
12.4 Payment of monies due is not to be withheld in expectation of credits.
12.5 Shipping costs for returns are the responsibility of the customer.
13. Complaints – Time Limits
13.1 Any complaint as to the goods supplied must be made in writing to Pempek within 14 days of delivery of the goods. Any complaint made after the expiry of 14 days' hours will not be accepted by Pempek.
13.2 If the complaint by the Customer is accepted by Pempek, Pempek has the sole discretion as to whether to replace the goods the subject of the claim or to credit the appropriate proportion of the purchase price of the good relevant to the complaint.
14. Goods on Evaluation
14.1 Goods may be supplied "on approval" at the sole discretion of Pempek. Any and all goods supplied on approval will be done so only on the provision of a Customer order number. Any and all goods supplied on approval shall be returned to Pempek within 31 days failing which the invoice rendered at the time of the supply of the goods on approval will become payable in accordance with the invoice account terms referred to above unless Pempek provides a written exception or revises the due date of the invoice. Any and all goods supplied on approval shall be subject to the conditions as to risk referred to above.
15. Force Majeure
18.1 Pempek shall not be liable to the Customer for any delay or failure to perform all or part of Pempek's obligations to the Customer under the contract where such a delay or failure is due to any cause whatsoever beyond the reasonable control of Pempek including but not limited to, acts of God or public enemy, insurrection or riot, war or military operation, national or local emergency, act or omissions of government, industrial disputes of any kind (whether or not involving Pempek's employees), fire, lightning, explosion, flood subsidence, inclement weather, quarantine, epidemic, pandemic, regulation or order affecting materials, act or omissions of third persons (including any supplier of the goods or parts of the Goods and any supplier of services) or any other cause whether similar or dissimilar outside of Pempek's reasonable control.
16. Applicable Law
16.1 These terms and conditions shall be governed by and construed in accordance with New South Wales and Australian law and the Customer hereby submits to the exclusive jurisdiction of the courts of New South Wales, Australia.
17.1 These Terms and Conditions may be varied by Pempek by notice in writing to the Customer. Notice will be deemed to have been given to the Customer 48 hours after any varied Terms and Conditions posted on the Pempek website.
18.1 If any part of these Terms and Conditions is invalid or unenforceable the remaining valid and enforceable Terms and Conditions shall remain in full force and effect.
19. Indemnity by Customer
19.1 Without prejudice to any other rights Pempek may have against the Customer, and to the extent permitted by the law, the Customer shall indemnify Pempek for, and save it harmless from, any loss, damage or expense (including, without limitation costs, whether or not the subject of a Court order) incurred by Pempek should the Customer breach any of these Terms and Conditions.
20. Goods and Services Tax
20.1 Should any Goods and Services Tax as levied under the A New Tax System (Goods and Services Tax) Act 1999 and any other tax, fee, levy, or duty imposed by any competent authority be payable on any of the Goods supplied by Pempek, such tax, fee, levy or duty will be to the Customer's account and shall be calculated using the rates and methods of assessment in force at the time of delivery. The Customer is liable for any other applicable tax, including, without limitation, withholding tax.
(a) copy, adapt, reproduce, broadcast, store, transmit, distribute, print, publish or create derivative works from any information or material on the Site, including the Content;
(b) alter, decompile, disassemble, reverse engineer or modify any material or information that you receive from the Site which can be accessed through the Site, including the Content; or
(c) use or apply for commercial purposes any material or information on the Site, including the Content. 21.3 Additional terms and conditions may apply to purchases of goods or services and to specific portions or features of the Site, including contests, promotions, or other similar features, all of which terms are made a part of these Terms and Conditions of Use by this reference.
21.4 The Customer/User agrees to abide by such other terms and conditions, including where applicable representing that it/ they are of sufficient legal age to use or participate in such service or feature.
21.5 If there is a conflict between these Terms and Conditions and the terms posted for or applicable to a specific portion of the Site or for any service offered on or through the Site, the latter terms shall control with respect to your use of that portion of the Site or the specific service.
21.6 Pempek may make changes to any products or services offered on the Site, or to the applicable prices for any such products or services, at any time, without notice. The materials on the Site with respect to products and services may be out of date, and Pempek makes no commitment to update the materials on the Site with respect to such products and services.
22. Customers' Responsibilities
22.1 The Customer/ User agrees to notify Pempek immediately of any unauthorized use of their account or password, or any other breach of security. The Customer may be held liable for losses incurred by Pempek or any other User of or visitor to the Site due to someone else using your Pempek Customer ID, password, or account as a result of your failing to keep your account information secure and confidential. Responsibility for safeguarding the Pempek Customer ID rests solely with the owner of the Pempek Customer ID.
22.2 The Customer may not use anyone else's Pempek ID password or account at any time without the express permission and consent of the holder of that Pempek ID password or account. Pempek cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations.
23. Links to Other Sites and to the Pempek Site
23.1 Sites are provided solely as a convenience to our visitors. Such Linked Sites are not under Pempek's control, and Pempek is not responsible for and does not endorse the content of such Linked Sites, including any information or materials contained on such Linked Sites. The Customer/User will need to make their own independent judgment regarding your interaction with these Linked Sites.
24.Limitation of Liability – Website
24.1 Except where prohibited by law, in no event will Pempek be liable to you for any indirect, consequential, exemplary, incidental, or punitive damages, including lost profits, even if Pempek has been advised of the possibility of such damages.
24.2 If, notwithstanding the other provisions of these Terms and Conditions, Pempek is found to be liable to you for any damage or loss which arises out of or is in any way connected with your use of the Site or any Content, Pempek's liability shall in no event exceed the greater of (1) the total of any subscription or similar fees with respect to any service or feature of or on the Site paid in the six months prior to the date of the initial claim made against Pempek (but not including the purchase price for any Pempek hardware or software products or similar support program), or (2) AUD $20,000.00. Some jurisdictions do not allow limitations of liability, so the foregoing limitation may not apply to you.
25.1 Pempek does not promise that the site or any content, service, or feature of the site will be error-free or uninterrupted, or that any defects will be corrected, or that your use of the site will provide specific results. The site and its content are delivered on an "as-is" and "as available" basis. All information provided on the site is subject to change without notice. Pempek cannot ensure that any files or other data you download from the site will be free of viruses or contamination or destructive features. Pempek disclaims all warranties, express or implied, including any warranties of accuracy, non-infringement, merchantability, and fitness for a particular purpose. Pempek disclaims any and all liability for the acts, omissions, and conduct of any third parties in connection with or related to your use of the site and/or any Pempek services. The Customer/User assumes total responsibility for their use of the site and any linked sites. The sole remedy against Pempek for dissatisfaction with the site or any content is to stop using the site or any such content. This limitation of relief is a part of the bargain between the parties.
25.2 The above disclaimer applies to any damages, liability, or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorized access to, alteration of, or use, whether for breach of contract, tort, negligence or any other cause of action.
25.3 Pempek reserves the right to do any of the following, at any time, without notice: (1) to modify, suspend or terminate operation of or access to the Site, or any portion of the Site, for any reason; (2) to modify or change the Site, or any portion of the Site, and any applicable policies or terms; and (3) to interrupt the operation of the Site, or any portion of the Site, as necessary to perform routine or non-routine maintenance, error correction, or other changes.
25. Indemnity by Customer
26.1 The Customer/User agrees to indemnify and hold Pempek, its officers, directors, shareholders, predecessors, successors in interest, employees, agents, subsidiaries and affiliates, harmless from any demands, loss, liability, claims, or expenses (including attorneys' fees), made against Pempek by any third party due to or arising out of or in connection with your use of the Site.
Pempek may revise its Terms and Conditions.
Pempek reserves the right, at its sole discretion, to change, modify, add or remove any portion or portions of the Terms and Conditions at any time. It is the responsibility of the Customer/User to check these Terms and Conditions periodically for any changes. Your continued purchase of Goods or Services or use of the Website or use of Pempek Intellectual Property following the making of any changes will mean that you accept and agree to be bound to any changes.
Pempek Legal notice
Pempek Systems Pty Ltd ACN 622 172 721 (‘Pempek’) is the owner of all Intellectual Property Rights subsisting in all of its Goods (including all Pempek Software and Pempek Hardware), as well as all product information contained in this document (including without limitation in respect of all copyright, designs and know-how). Your use of Pempek’s Goods and Pempek Intellectual Property is strictly subject to any directions, authority and instructions provided by Pempek from time to time, as well as:
- Pempek’s Licence Terms and Conditions, which are accessible here; and
- Pempek’s Product Terms and Conditions, which are accessible here.
By requesting Pempek to provide its Goods and Services to you, or by continuing to use Pempek’s Goods and Services, you confirm your acceptance of the Terms and Conditions specified above. You agree and acknowledge that these terms form a legally binding agreement between you and Pempek. Pempek reserves the right to amend its terms and conditions at any time.
Third parties, including licensees, must never claim ownership rights, title or interest in Pempek Intellectual Property, or brands that are deceptively similar to Pempek Intellectual Property, in any manner, including without limitation as a trademark, service mark, company name or designation, product name, domain name, social media profile/handle, or in any other manner.
Pempek expressly reserves the right in its sole discretion to terminate, revoke, modify, or otherwise change permission of third parties to use Pempek Intellectual Property at any time. Pempek expressly reserves the right to object to any use or misuse of Pempek Intellectual Property in any jurisdiction worldwide.
Pempek’s Goods and Services—including images, text and Pempek Software downloads (the "Content")—are owned either by Pempek or by third parties who have granted Pempek permission to use the content. Pempek does not grant permission for the use of any content that is owned by third parties.
Pempek Intellectual Property Licence Agreement
1. Definitions and interpretation
In this agreement:
Capitalised or Emboldened words used that are not defined in this agreement have the meaning given to those terms in the Pempek Terms and Conditions (accessible here), and otherwise, have the meaning given to them as follows:
“Confidential Information” means information that either:
(a) is by its nature confidential to a party;
(b) is designated by a party as confidential; or
(c) a party knows, or ought to know, is confidential to the party that made the information available,
(d) in the case of the Licensor, all Pempek Intellectual Property and any other information disclosed to Licensee in connection with Licensor’s provision of Goods or Services to Licensee;
but excludes information that is public knowledge (otherwise than as a result of a breach of confidentiality by Licensee).
“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.
- any copyright under the Copyright Act 1968 (Cth) as amended from time to time;
- any copyright under the law of a country other than Australia; and
- rights in the nature of or analogous to the rights in (a) and (b) under the law of Australia or any other country (including future copyright and rights in the nature of or analogous to copyright.
“Device” means a system (either a single hardware device or group of hardware devices or software operating environment such as an information technology network and data server) approved by Licensor. Without express written authorisation provided by the board of directors of Licensor, this means a device or group of devices manufactured and supplied by Licensor.
“Derivative Works” means any reverse engineered, re-engineered, disassembled, amended or derivative aspects of Pempek Intellectual Property.
“Hardware” or “Pempek Hardware” means any hardware systems designed and created by Licensor.
“Intellectual Property Rights” means:
inventions, discoveries and novel designs, whether or not registered or registrable as patents or designs, including developments or improvements of equipment, products, technology, processes, methods or techniques;
- Copyright (including future Copyright) throughout the world in all literary works, artistic works, computer software (including all forms of code) and any other works or subject matter in which Copyright subsists and may in the future subsist;
- Confidential Information and trade secrets;
- trade and service marks (whether registered or unregistered), business names, trade names, domain names, logos and get-up; and
- proprietary rights under the Circuit Layouts Act 1989 (Cth).
“Licensee” is the person or company to whom Licensor has supplied the Devices and who intends to use Pempek Intellectual Property.
”Licensor” means Pempek.
“Pempek Intellectual Property” includes all Intellectual Property Rights owned by Licensor and its subsidiaries, including but not limited to all Intellectual Property Rights subsisting in:
- all Pempek Software and firmware whether in source code or complied form together with its software object libraries, product control protocols, electronic, hydraulic and mechanical designs, technical documentation including user manuals, drawings and control system operational methods and any other art created by Licensor including Licensor’s employees and contractors all of which is confidential to Licensor; and
- all other documents, notes, user guides, functional and technical manuals, specifications, data reports, all computer programming code (including all source code, object code and executable code and all associated GIT repositories), firmware, communication protocols and designs, whether digital, online, electronic or hard-copy, in connection with or relating to Pempek Software or Pempek Hardware.
“Software” or “Pempek Software” includes but is not limited to software and firmware:
- in source code or compiled form together with its software object libraries and product control protocols used in Licensor Devices, Goods or Services; or
- that was otherwise designed and created by Licensor.
“Term” means the period that commences on the date described in clause 1.3 of this agreement, and ends on the date that Licensor ceases providing all Goods and Services to the Licensee.
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 Pempek Intellectual Property or Device.
2. License of Pempek Software
The Licensee agrees that Pempek Intellectual Property is licensed under this agreement, not sold. Subject always to the terms of this agreement, Licensor grants Licensee a non-exclusive, non-transferable, revocable licence to:
(a) run one instance of the Software on a Device;
(b) use Pempek Intellectual Property provided by Licensor in connection with the use of the Software on a Device,
for the Purpose and for the duration of the Term (Licence).
2.2 Use of Software
Licensee must only use the Pempek Intellectual Property:
(a) for the sole purpose of operating the Device, and for no other purpose whatsoever; and
(b) in accordance with the terms of this Licence Agreement and any other directions, conditions or instructions notified to Licensee by Licensor from time to time.
2.3 Licensee’s obligations in using the Pempek Intellectual Property
(a) Licensee must not do or permit anything to be done in respect of the Pempek Intellectual Property, other than in accordance with the terms of this agreement. Without limiting the preceding sentence, Licensee must 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, that is the same or similar in any respect to any Good or Service offered by Licensor;
(vii) modify, copy or create Derivative Works of any features, functions, operational methods, integrations, interfaces or graphics of the Software;
(viii) sub-licence or transfer the Software, or the Licence (except with Licensor’s prior written consent);
(ix) work around any technical restrictions or limitations in the Software;
(x) interface to Hardware, in any way, other than by using Software, Hardware or any Licensor proprietary control protocols.
(b) Licensee must use all best endeavours to prevent unauthorised third parties from accessing or using the Pempek Intellectual Property and must 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 to Licensor. Use will be 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;
(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); or
(vi) the Licensee utilises, engages or becomes involved with an ex-employee or contractor of Licensor, who has access to confidential and/or commercially sensitive Software code and uses a version of that code to access or interface with a Device.
(d) If Licensee is aware or reasonably suspects that any other person is in possession of any Derivative Works, then the Licensee must notify Licensor immediately and use all best endeavours to procure that those persons immediately delete and entirely remove from their possession and records all forms (whether hard-copy, electronic, digital or online) of the Derivative Works.
(e) Licensee must not disparage Licensor or the Pempek Intellectual Property, or make any statements of any nature whereby the Licensee holds itself out or represents to any third party that the Pempek Intellectual Property is the property of the Licensee.
(f) Licensee agrees not to:
(i) create any Derivative Works (except where the creation of the Derivative Works by the Licensee is expressly authorised by Licensor in writing prior to the creation of any Derivative Works);
(ii) deploy any Derivative Works on any Device (except where the Derivative Works have been created in accordance with clause 2.3(f)(i) and the Licensor has consented to the Derivative Works being deployed on a specific Device); or
(iii) provide the benefit of any Derivative Works to any person, unless expressly authorised by Licensor in writing.
(g) At the end of the Term:
(i) all rights of Licensee under this agreement will terminate and Licensee must not make any use whatsoever of Pempek Intellectual Property;
(ii) all outstanding fees owing under the Pempek Terms and Conditions will immediately become due and payable.
2.4 Software Locks
(a) Licensee acknowledges that the Software may contain a lock, which can be activated to disable or reduce the functionality of the Software (Software Locks).
(b) Without limiting the use of the Software Locks, where, in Licensor’s opinion, Licensee is or may be in breach of this Licence Agreement, Licensor may activate the Software Lock, until the breach is rectified to the Licensor’s satisfaction. There will be no refund of any fees, or any moratorium on fees charged by Licensor, in respect of the period that the Software Lock is activated.
(a) Licensee is solely responsible for the use, supervision, management, and control of the Software.
(b) Licensee must 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 are 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 in respect of the Software (such as defects fixes, updates, and new releases).
(a) The Licence granted to the Licensee under this agreement may only be transferred to another party with the prior written consent of the Licensor. The Licensor may withhold such consent, acting reasonably.
(b) Any party to which the Licence is proposed to be transferred must agree to the terms of this agreement.
6. Intellectual property
6.1 Intellectual property rights
(a) Licensor is the legal and beneficial owner of all rights title and interest, including all Intellectual Property Rights, in:
(i) all Pempek Intellectual Property;
(ii) all Derivative Works,
and nothing in this Licence Agreement has the effect of transferring ownership of the Pempek Intellectual Property to the Licensee or any other person.
(b) In respect of all Intellectual Property Rights subsisting in the Derivative Works:
(i) the Licensee agrees that ownership of such rights vests immediately in the Licensor on and from the date of creation of any Derivative Works; and
(ii) to the extent that the Licensee, or any employee or contractor of the Licensee, has any property, right, title or interest to the Derivative Works, the Licensee assigns all such right, title or interest (both legal and beneficial) in the Derivative Works to the Licensor, and must procure that any employee or contractor of the Licensee signs any document assigning any such rights held by them to the Licensor, within 2 Business Days from becoming aware of the existence of any such rights; and
(iii) the Licensee must otherwise do all acts and things necessary or desirable (including sign any document) to assign ownership of the Derivative Works, free from any encumbrance, to the Licensor and to perfect any registration of the Derivative Works in the name of the Licensor.
6.2 Licensee acknowledgments
(a) this agreement grants Licensee no title or rights of ownership in the Pempek Intellectual Property;
(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; and
(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 Pempek Intellectual Property, 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 must not, without the prior written approval of the other party, disclose the other party's Confidential Information.
(b) A party will 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 must 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 or misuse the other party's Confidential Information.
(d) Immediately upon the expiry of the Term, Licensee must immediately return all of the Licensor’s Confidential Information or related materials to the Licensor, or if directed by the Licensor, destroy the Licensor’s Confidential Information or related materials and submit such proof of destruction to the Licensor.
(e) This clause will survive the termination or expiry of this agreement.
8. Employees and contractors
(a) The Licensee must not solicit for employment or engagement as a contractor, either directly or indirectly, any person who is or was employed or contracted by the Licensor.
(b) The Licensee must promptly advise and seek prior written 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 clause 8(b) can only be granted by the Licensor’s Board of Directors.
9. Liability and indemnity
9.1 Limitation of liability
(a) To the fullest extent permitted by law, Licensor, its officers, employees, agents, contractors or suppliers, exclude all liability for any Consequential Damages incurred by the Licensee or any other party.
(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 non-performance 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 price of the individual Device and Software relevant to the claim or loss suffered by the 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 wilful, 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 this agreement. 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 Licensor is the Board of Directors of Licensor.
(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, together with Pempek’s Terms and Conditions, 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.