Software license agreement for Smart Solutions Group Pty Ltd’s software suite

Please carefully read this software license agreement for the software

The terms and conditions set out in this Agreement are applicable to all copies of the Software, whether installed, hosted by a third party, or in use or not. This Software License Agreement for the Software (the "Agreement") is a legally binding agreement between you ("You") and SSG. By installing, loading, accessing or running the Software or any part of the Software, or by placing or copying the Software or any part of the Software onto your computer hard drive or any other storage medium, You are agreeing to be bound by the terms of this Agreement.

1. Definitions

   "Authorised User" means any agent, employee, contractor or other person or persons authorised by You to access the Software;
   "Clause" means a clause of this Agreement;
   "data" means any electronic data of whatever form and being capable of transmission by telephone lines or satellite or through the Internet or any other medium of electronic communication;
   "day" means any calendar day of twenty four (24) hours duration commencing immediately after midnight and ending at midnight that same day;
   “Fees” means the fees set out in clause 7 of your Agreement.
   "force majeure" means an act, omission or circumstance over which SSG could not reasonably have exercised control;

   
   "Software" means any computer program:
   1. provided to You by SSG which forms a part of smart solutions suite or is required to load, integrate with or run smart solutions suite and is resident on Your Equipment; or
   2. used by SSG to operate or to assist in the operation of smart solutions suite and is resident at such location or from such internet site as SSG may select, in its absolute discretion;
   3. modifications to any such computer program as made by SSG from time to time as the context requires

   "Terms and Conditions" means the terms and conditions set out and contained in this Agreement;
   “You” means the person who physically accepts these terms and/or the organisation which employs or has otherwise engaged that person, as the context requires, and in so far as it means both it means the person and the organisation jointly and severally;
   “Your Client” means the third parties as described in clause 6 of this Agreement.
   "Your Equipment" means all of the computer hardware and software You use, either directly or indirectly, in accessing, loading or running the Software.
   Unless the context otherwise requires, words importing the singular include the plural and vice versa and words of one gender include all other genders.

2. Grant of license

   SSG grants You the right to use the Software subject to payment of the Fees as and when they fall due. For the purposes of this clause, "use" means You or Your Clients loading the Software into random access memory on a computer, or interacting with the Software on an internet site. Either party may terminate this Agreement at any time by giving one months notice in writing to the other party.

3. Copyright

   The Software is protected by copyright, and SSG holds all necessary rights to deal with the copyright in the Software. This Agreement assigns no title or ownership in the Software or any other computer program and is not a transfer of any rights in the Software to You or any other party. You shall not, at any time, take any action in relation to the Software that is not expressly permitted by these Terms and Conditions. You may not charge or receive any consideration, whether directly or indirectly, from any other person for the receipt or use of the Software. You agree to ensure that any user of the Software licensed hereunder complies with this Agreement.

4. Acknowledgement and warranties

   1. You acknowledge, undertake and agree that:
      1. You shall not allow, permit or authorise the use of the Software for any use for which the Software is not intended or designed;
      2. You shall not modify, translate, disassemble, decompile, reverse engineer or create derivative works based upon the Software;
      3. You will ensure that at all times the use of the Software is in
      4. nothing in this Agreement shall prohibit or in any way restrict the right or ability of SSG, in its absolute and unfettered discretion, to make any and all changes whatever to any computer hardware or software affecting the Software during the term of this Agreement without consultation with You;
      5. SSG has not made any representations or given any warranties that the Software will be fully operational on Your Equipment at all times and You acknowledge that access to the Software is provided subject to the availability of telecommunications facilities sufficient to enable You to connect to the Software;
      6. SSG has no obligations or liability for any loss, damage or destruction of any data or software, regardless of the cause;
      7. SSG cannot warrant that the Software is free of inaccuracies, defects or errors and SSG is not liable for any loss or damage to You as a result of any inaccuracy, defect or error in the transmission or receipt of data;
      8. SSG will not be liable for any delay or failure to perform its obligations if such failure or delay is due to force majeure;
      9. If you breach any term of this Agreement, your licence to use the Software is automatically terminated, without limiting any other rights SSG may have arising from the breach;
      10. SSG is not liable for any hardware or software defects or failures of any kind whatsoever, save and except those which arise directly from the Software and then only subject to the terms of this Agreement; and
      11. Under no circumstances does SSG accept any responsibility whatsoever for the integrity of Your network infrastructure or for security breaches in relation to that network. In so far as any of SSG’s activities may affect Your network You are solely responsible for ensuring that integrity and security issues are addressed.
   2. You warrant that:
      1. You shall not cause any destruction or damage to the Software or any other software, hardware or data belonging to or in the control of SSG;
      2. In so far as the Software permits you to make changes to any aspect of the appearance, structure or contents of the Software (including any terms and conditions presented with the Software), you will only make such changes as the Software is specifically designed to allow;
      3. You shall not act in any way which will or may potentially, either directly or indirectly, expose SSG to any liability or potential liability to a third party;
      4. without limiting the generality of any other provision of this Agreement, you shall not transmit any information that may or is likely to be defamatory, libellous, offensive, untrue, misleading or bring SSG into disrepute;
      5. You have not relied on any representation made by SSG or upon any descriptions or illustrations or specifications contained in any document including any catalogues or publicity material produced by SSG which have not been expressly stated in this Agreement;
      6. You will obtain all necessary permissions for use of any materials which are dealt with in the course of Your use of the Software, including, without limitation, fonts, images, documents and any other intellectual property;
      7. You will obtain all necessary permissions for any third party software or hardware which you require in order to use the Software, and will abide by the licensing terms governing any such software or hardware. For the sake of clarity, SSG makes no warranty of any kind in relation to third party software or hardware, and it is Your responsibility to ensure that You obtain any necessary licences and abide by their terms and conditions.

5. Liability and release

   1. SSG shall not be responsible or liable for any loss or damage to the Software or to any other hardware, software or data affected by the Software caused by any factors whatsoever including, but not limited to:
   1. hardware or software failure or malfunction;
   2. modem or communication faults;
   3. computer software viruses;
   4. negligence of SSG or any of its employees, agents, consultants, contractors or related companies; or
   5. any other matter over which SSG does not have direct control;
   and You release, forever discharge and waive any rights you may have against SSG from and against any and all claims arising out of the use of the Software and all related software and services.
   2. Except as expressly provided to the contrary in this Agreement, all terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating in any way to the Software are excluded to the extent permitted by law. In so far as liability can not be excluded SSG’s liability to You is limited to the repair of the software, re-supply of the software or services, or repayment of any amounts paid by You, in SSG’s absolute discretion.
   3. You agree to indemnify SSG for any claim, loss or damage (including legal costs) made against or suffered by SSG arising out of the grant of this Licence to You by SSG irrespective of whether such claim, loss or damage results from Your actions.

6. Authorised users

   1. SSG permits You to provide third parties (“Your Client”) with access to the Software subject to the terms of this clause and such other limitations as may be imposed by SSG in the documentation accompanying the licensing transaction for the Software.
   2. Your Client may only install, access or use the Software subject to all of the terms and conditions set out in this Agreement. You must ensure that the terms of this Agreement are accepted by each of Your Clients prior to them accessing or using the Software, and You must direct them specifically to the location on SSG’s web-site where the current version of this Agreement is located.
   3. In the event that Your Client breaches any term of this Agreement you agree that you are jointly and severally liable to SSG for such breach, and SSG has the right to make a claim against You irrespective of whether it makes a claim against Your Client.
   4. SSG expressly prohibits the provision of the Software to third parties on a fee for service basis in such fashion that they may in turn provide access to the Software to third parties. For the avoidance of doubt, this sub-clause is intended to expressly prohibit you from providing access to the Software to third parties on an application service provider basis as that concept is commonly understood.
   5. You agree not to make any representations to Your Clients which may be considered to be misleading or deceptive in relation to the functionality or specifications of the Software.

7. Fees

   1. You agree to pay the Fees, outlined in the licensing agreement
   2. SSG reserves the right to revise the Fees at any time by giving You three months written notice. You may terminate this Agreement by notice to SSG at any time during the notice period. If You do not terminate the Agreement within the notice period then the revised Fees will apply immediately on expiry of the notice period.
   Note: All payments are to be made monthly in advance, by direct deposit into a nominated account.

8. General provisions

   1. This Agreement constitutes the entire Agreement between the parties for the subject matter referred to herein. Any prior arrangements, agreements, representations or undertaking are superseded except as expressly provided to the contrary in this Agreement.
   2. SSG may vary this Agreement at any time by posting the amended Agreement in a clearly market location on its web-site and ensuring that the web-site is accessible over the Internet. SSG may make any such variation without notice to You, however SSG agrees to use its best endeavours to notify You in the event that it makes any changes to the Agreement which it considers, in its absolute discretion, to be major changes.
   3. If any provision of this Agreement is held to be invalid, unenforceable or illegal for any reason, this Agreement shall remain otherwise in full force apart from such provision which shall be deemed deleted.
   4. Any express statement of a right of SSG under this Agreement is without prejudice to any other right SSG may have pursuant to this Agreement or arising at law.
   5. This Agreement is governed by the laws applicable in the State of Victoria, Australia, and each party irrevocably submits to the non-exclusive jurisdiction of the courts of the State of Victoria.
   6. Unless expressly indicated to the contrary any monetary amount set out in this Agreement is in Australian Dollars and inclusive of the Goods and Services Tax.
   7. 1. Any provision of, or the application of any provision of, this Agreement which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.
      2. Any provision of, or the application of any provision of this Agreement, which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions of this Agreement in that or any other jurisdiction.
      3. The application of this clause 8(g) is not limited by any other provision of this Agreement in relation to severability, prohibition or enforceability.
   8. A variation of any term of this Agreement must be agreed to by both parties in writing.
   9. A reference to "writing" or "written" includes any communication by electronic mail.

9. Notices

   Any notice, or other communication including, but not limited to, any request, demand, consent or approval to or by a party under this Agreement:
   1. must be in legible writing and in English addressed as set out below
      1. if to SSG
         Attention : License Manager
         Suite 3, Level 3 , 450 St Kilda Road Melbourne 3001
         Fax : (03)-986 64344
         Email : license-manager@smartsolutions.com.au
         
      2. if to You, at the email address provided by You or any other address specified by You to SSG by written notice;
   2. is deemed to be duly given by the sender and received by or served on the addressee:
      1. if by delivery in person, when delivered to the addressee;
      2. if by post, five (5) business days from and including the date of postage on delivery to the addressee; or
      3. if by facsimile transmission, when received by the addressee, but if the delivery or receipt is on a day which is not a Business Day or is after 4.00 pm (addressee's time) it is deemed to be duly given on the next Business Day; or
      4. if by electronic mail, when transmitted by SSG to Your electronic mail address;
      and can be relied on by the recipient, and the recipient will not be liable to any other person for any consequences of that reliance if the recipient believes it to be genuine, correct and duly authorised by the sender.