End User Licence Agreement

EULA 

1.        Agreement

  • This End-User Licence Agreement (Agreement) is between you (Customer or you) and MiPlan Consulting Pty Ltd (MiPlan) and governs your initial purchase of MiPlan Products as well as any future purchases made by reference to this Agreement. MiPlan may modify this Agreement from time to time, subject to the terms in clause 13 below.
  • By placing an Order (through MiPlan or a Reseller) or by using or accessing MiPlan Products, you agree to be bound by this Agreement.
  • This Agreement includes any Orders, any attachments and any MiPlan policies in place from time to time and available on its website.
  • This Agreement governs MiPlan Products and any related support or maintenance services provided by MiPlan.

2.        Orders

  • The Customer’s Order will specify:
    • the Term and any Minimum Term and Renewal Term;
    • all fees payable by the Customer and the payment schedule;
    • the Permitted Uses;
    • the Software licensed;
    • the numbers of licences, copies or instances of Software;
    • the support and maintenance (if any) to be provided by MiPlan; and
    • any other restrictions or terms of use,

such terms are incorporated into and form part of this Agreement (Scope of Use).

  • This Agreement applies whether the Customer purchases MiPlan Products or services directly from MiPlan or from a Reseller. If the Customer purchases through a Reseller, the Scope of Use is stated in the Order placed by the Reseller for the Customer and the Reseller is responsible for the accuracy of any such Order. Resellers are not authorised to make any promises or commitments on MiPlan’s behalf, and MiPlan is not bound by any obligations to the Customer other than as specified in this Agreement.

3.        Licence

3.1   Type of Licence

  • Subject to the terms and conditions of this Agreement (including the Scope of Use), MiPlan grants the Customer for the Term:
    • a non-exclusive, non-sublicenseable and non-transferable licence to use the Software (except the MiiNT Reporting Module) for the Permitted Uses; and
    • a non-exclusive, non-sublicenseable, non-transferable, multi-user, concurrent connection licence to use the Software comprising the MiiNT Reporting Module for the Permitted Uses.
  • The Software requires a licence key in order to operate, which will be delivered to the email address specified in the Customer’s Order when MiPlan has received payment of the applicable fees.

3.2   Transfer of Licence

The Customer may transfer the Software to other computers in accordance with the Permitted Uses provided that:

  • the total number of users gaining access to the Software does not exceed the licence count for named or concurrent usage as defined in the Order; and
  • the Customer is aware that the central Software system has a means of session licence auditing which is reviewed periodically. Increased fees may then apply. MiPlan must advise the Customer at least 30 days in advance of any increase in fees.

3.3  Renewal Term

  • If the Customer wishes to extend the Term for the Renewal Term (if applicable), the Customer is not required to give written notice to MiPlan. Rather, MiPlan will issue an invoice for the first instalment or upfront payment of the Fee, the Licence Fee, the Maintenance Fee and/or the Support Fee (as applicable), for the Renewal Term. The Customer must pay the amount of the invoice prior to the end of the Minimum Term, in which case the Term will be extended by the Renewal Term.
  • In these circumstances:

(a)          this Agreement will be extended by the Renewal Term; and

(b)          the rights and obligations of the Customer and MiPlan will otherwise be for the Renewal Term as they were for the Minimum Term.

3.4   Continuation of Agreement

If the Customer wishes to extend the operation of this Agreement beyond the Term or Renewal Term (as applicable), the Customer is not required to give written notice to MiPlan. Rather, MiPlan will continue to issue invoices on a monthly or annual basis (as applicable) and payment of the Fee, the Licence Fee, Maintenance Fee and/or the Support Fee (as applicable) in each invoice will be deemed to be an agreed extension of this Agreement on a rolling one month or one year basis (as applicable) and the rights and obligations of the Customer and MiPlan will otherwise be as they were for the Term or Minimum Term (as applicable).

3.5   Pro-rata adjustment

If, during the Term, there is an adjustment of the Fee, the Licence Fee, the Maintenance Fee and/or the Support Fee pursuant to this Agreement, the relevant fee will be re-calculated and the monthly or annual instalments remaining in the Term will be adjusted accordingly.

4.        Fees, duties and taxes

  • The Customer must pay all Fees in accordance with each Order. Unless otherwise specified in the Order, the Customer must pay all amounts in Australian dollars in the manner specified in the Order.
  • MiPlan will supply to the Customer or the Reseller (as applicable), prior to the due date of an instalment of any fee, a valid tax invoice for the amount of that instalment, upon which the Customer must make payment of that instalment by that applicable due date.
  • If the Customer purchases any MiPlan Products or services through a Reseller, the Customer must pay the Reseller as agreed between the Customer and the Reseller.
  • If payment of the whole or a part of the Fee, the Licence Fee, the Support Fee, the Maintenance Fee, or any other fee or amount payable by the Customer to MiPlan under this Agreement, is not made within 30 days of the due date, interest will be payable by the Customer at the rate of 3 percent per annum above the then current cash rate published by the Reserve Bank of Australia on the overdue amount, calculated on a daily basis and, if any payment is owing after 60 days from the due date, MiPlan will be entitled to terminate the Agreement and the Licence and to re-possess the Software.
  • If the Customer disputes the whole or any part of the amount claimed in an invoice submitted by MiPlan directly to the Customer (and not through a Reseller), the Customer will pay the undisputed portion on the due date. The dispute regarding the remainder may be referred to the dispute resolution procedure prescribed by this Agreement. If it is subsequently resolved that a further amount is payable, the Customer will pay that amount together with interest calculated in accordance with this clause.
  • The Customer’s payments under this Agreement exclude any taxes (including GST) or duties payable in respect of the supply of the MiPlan Products or services in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by MiPlan, the Customer must pay MiPlan the amount of any such takes or duties in addition to any fees owed under this Agreement.

5.        Intellectual Property and restrictions

  • MiPlan retains ownership of the Software whether in its original form or as modified by the Customer.
  • All Intellectual Property Rights in the Software are retained by MiPlan.
  • Nothing in this Agreement affects MiPlan’s and its developer’s moral rights in the Softwar
  • Subject to the following sub-clauses of this clause, and without seeking to exclude or limit the application of sections 47B(3), 47C, 47D, 47E or 47F of the Copyright Act 1968 (Cth) the Customer must not copy the Software, in whole or in p
  • The Customer may make such number of copies of the Software as is necessary to serve its internal needs for system back-up and security. All copies of the Software and the media in which the copies are contained will be and remain the property of MiPlan.
  • The Customer will mark all copies of the Software and the media in which the copies are contained with a notice of:

(a)          MiPlan’s ownership of the Software and the media;

(b)          the confidentiality of the Software; and

(c)           such other information as MiPlan reasonably requires.

  • The Customer will maintain records of all copies of the Software made by it and the place at which those copies are situated. Such records will be furnished to MiPlan upon reasonable no
  • The Customer will notify MiPlan immediately on becoming aware of any unauthorised use or copying of the whole or any part of the Software or of the Manual Of Specifications.
  • Immediately upon termination of this Agreement, the Customer will deliver up to MiPlan, the Software (including all copies, authorised or otherwise), the Media and the Manual Of Specifications, whether in their original form or as modified by the Custom
  • The Customer will not:
    • modify the whole or any part of the Software;
    • combine or incorporate the whole or any part of the Software in any other program or system ;
    • rent, lease, reproduce, distribute, sell, sublicense, transfer or provide access to any MiPlan Products to a third party;
    • incorporate any MiPlan Products into a product or service provided to a third party;
    • interfere with any licence key mechanism in the MiPlan Products;
    • except as expressly permitted by sections 47B(3), 47C, 47D, 47E or 47F of the Copyright Act 1968 (Cth), reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, algorithms, underlying ideas, file formats or non-public APIs to any MiPlan Product;
    • remove or obscure any proprietary or other notices contained in any MiPlan Product; or
    • publicly disseminate information regarding the performance of any MiPlan Products,
    • develop a shell, wrapper or similar environment around the Software code libraries;
    • on-sell any software developed using the Software (including any software using, based on or incorporating any aspect of the Software);
    • supply of any part of the Software including any Software code library to any third party; and
    • create, use, or on-sell any end-user Software applications (including any software using, based on or incorporating any aspect of the Software) that allows such software to run on remote or multiple real or virtual machines/CPUs,

without the prior written consent of MiPlan.

  • If the Software is modified in accordance with subclause 5(1), the modifications will, unless MiPlan directs otherwise, be made in accordance with a written proposal submitted by the Customer to MiPlan.
  • The Software as modified remains the property of MiPlan (whether or not modified in accordance with subclause 5(1)). The Customer agrees to do all things necessary including sign any further document to protect MiPlan’s ownership of any modifications made to the Softwar
  • This Agreement will continue to apply to the Software as modifi

6.        Loss

  • The Customer will be responsible for protecting the Software and the Manual Of Specifications at all times from unauthorised access, use or damag
  • Risk of loss or damage to the Software, the media and the Manual Of Specifications will pass to the Customer upon delivery of the Software to the Customer.

7.        Manual Of Specifications and Deliverables Documents

  • MiPlan or the Reseller (as applicable) will deliver a draft copy of the Manual Of Specifications to the Customer on installation of the Software.
  • MiPlan undertakes to inform the Customer from time to time of any amendments to the Manual Of Specifications which may become necessary.
  • The Customer acknowledges MiPlan’s proprietary interest in the Manual Of Specification The Customer will not copy the Manual Of Specifications except where necessary to enable proper use of the Software in the manner reasonably contemplated by the parties (which includes, without limitation, so that, as a minimum, each relevant supervisor and user has a copy of the Manual Of Specifications).
  • If a Master Proposal has been agreed between the Customer and MiPlan, after installation of the Software and prior to the Acceptance Date, MiPlan and the Customer must work together in an efficient and timely manner to enable MiPlan to prepare and issue final Deliverables Documents based on, and relating to, a component or module in the Master Proposal as customised for, and approved by, the Customer.

8.        Acceptance tests

  • This clause 8 only applies where the Customer and MiPlan have agreed a Master Proposal.
  • Upon installation of the Software, the Customer will, together with MiPlan, within 30 calendar days of installation, conduct the Acceptance Tests in relation to the Software to ensure that the Software is properly operating and achieving the functionality specified in the Acceptance Criteria.
  • If the Customer, in consultation with MiPlan, determines that the results of the Acceptance Tests demonstrate that the Software does not “substantially” comply with the Acceptance Criteria, the Customer shall notify MiPlan of this non-compliance in writing (in reasonable detail) by no later than 7 calendar days after expiry of the 30 calendar day period during which the Acceptance Tests were to be conducted. For the purposes of this clause “substantially” means in accordance with the deliverables and manual (minor or inconsequential underperformance excepted).
  • Upon receipt of notice of non-compliance of the Software under subclause 8(2), MiPlan will use its best endeavours to modify or correct the Software so that the Software will satisfy the Acceptance Criteria. The Acceptance Date will be the notice by the Customer that the Software has “substantially” complied with the Acceptance Criteria. For the purposes of this clause “substantially” means in accordance with the deliverables and manual (minor or inconsequential underperformance excepted).

9.        Warranties

  • Each party warrants that it has the legal power and authority to enter into this Agreement and that this Agreement will be legally binding and enforceable against it.
  • MiPlan warrants that it has the right to grant the Licence to the Custom
  • MiPlan warrants that the Software will perform “substantially” in accordance with the Manual Of Specifications (and Deliverables Documents, if any) for a period of 12 months after the Commencement Date, minor or inconsequential underperformance excepted.
  • MiPlan warrants that the Manual Of Specifications will be adequate to enable the Customer to operate the So
  • If, within 12 months after the Commencement Date or the Acceptance Date (whichever is later), the Customer notifies MiPlan in writing of:

(a)          the fact that the Software is not performing “substantially” in accordance with the Manual Of Specifications, minor or inconsequential underperformance excepted; and

(b)          the alleged defects or errors,

MiPlan will at its own expense, commence to examine the Software within three working days and, as soon as practicable thereafter in its discretion, rectify the defect or will reinstall or replace the Software after obtaining the Customer’s consent to the proposed form of rectification.

  • The warranty contained in subclause 9(4):

(a)          is not a warranty that the results obtained           from the Software will be in accordance with the Customer’s expectations; and

(b)          does not operate where the substantial non-performance arises in any respect from the nature or operation of the equipment on which the Software is used or the use of any materials or other software (or data) not provided by MiPlan.

  • MiPlan shall use its best efforts to promptly rectify any program or documentation errors that may become apparent in the Software or Manual Of Specifications upon written notice from the Customer that such errors have been detected.
  • MiPlan warrants that the Licence of the Software and the Manual Of Specifications do not infringe the Intellectual Property Rights of any third party.

10.     Indemnity and liability

  • Subject to subclause 10(2), MiPlan will indemnify and hold harmless the Customer against any claim made against the Customer by a third party alleging that the Software (excluding any software developed by the Customer using the Software) infringes the Intellectual Property Rights of that third party.
  • MiPlan’s liability under subclause 10(1) will be reduced to the extent that the Customer caused or contributed to the liability.
  • Except in relation to liability for personal injury (including sickness and death), property damage or an infringement of confidentiality or Intellectual Property Rights, the liability of MiPlan in damages (including special, indirect or consequential damages, which damages will be deemed to include loss or revenue, loss or profit and opportunity loss) in respect of any act or omission of MiPlan in connection with its obligations under this Agreement will not exceed the total of all fees paid by the Customer, even if MiPlan has been advised by the Customer as to the possibility of such losses being incur
  • The Customer must indemnify and hold harmless MiPlan against any and all claims, costs, damages, losses, liabilities and expenses arising out of or in connection with any claim brought against MiPlan by any third party relating to the Customer’s use of the MiPlan Products.

11.     Termination

  • For the purpose of the Agreement, the following are terminating events:

(a)          the breach by either party of any of its material obligations, or warranty in relation to Intellectual Property Rights, under the this Agreement;

(b)          the appointment of any type of insolvency administrator in respect of the property or affairs of either party;

(c)           the entry or proposed entry by either party into any scheme, composition or arrangement with any of its creditors;

(d)          either party becoming insolvent or otherwise being unable to meet its financial obligations; and

(e)          the permanent discontinuance of use of the Software or any part of the Software by the Customer.

  • The Licence and this Agreement may be terminated immediately on the happening of the terminating events referred to in subclause 11(1)(b), (c), (d) or (e) at the election of the affected party.
  • In the case of a terminating event under subclause 11(1)(a), the affected party will give to the other party notice of the happening of that event and require the breach or event to be remedi If the breach or event is not remedied within 14 days, the affected party may terminate this Agreement and the Licence or agree to waive its rights under this clause if satisfied that the happening of the terminating event has not in any way prejudiced its position under this Agreement.
  • Neither party will be liable for the consequences of an occurrence of any event beyond its reasonable contro
  • Following termination of this Agreement, the Customer will no longer have the right to use of access the Software and the Customer will:

(a)          within 30 days of termination return to MiPlan the Software and all copies of the Software, all revisions, enhancements and upgrades of the Software, the media and the Manual Of Specifications; or

(b)          alternatively, if MiPlan requests, the Customer will destroy such software, copies, revisions, enhancements and upgrades by erasing them from all of its hardware, systems and media and will certify in writing to MiPlan that they have been destroyed, provided that the Customer is able to retain the Customer’s data.

  • The following provisions of this Agreement survive termination: 4 (Fees, duties and taxes), 5 (Intellectual Property and restrictions), 10 (Indemnity and liability), 11 (Termination) and 14 (Other provisions). Any termination of the Licence and this Agreement will not affect any accrued rights or liabilities of either party.
  • If any payment of any amount owed by the Customeris owing after 60 days from the due date MiPlan may de-activate and prevent the Customer’s use of the Software until all outstanding amounts have been paid by the Customer to MiPlan. During this time, the Agreement nonetheless remains on foot and MiPlan shall not be considered to have given a notice of default under subclause 11(3).
  • For the avoidance of doubt, MiPlan is entitled to give a notice to the Customer under subclause 11(3) of breach by the Customer of its material obligation to make payment of any part of any fee owing under this Agreement at any time after the due date for payment:

(a)          despite MiPlan not de-activating and preventing Customer’s use of the Software under this Agreement; and

(b)          even if MiPlan has de-activated and prevented Customer’s use of the Software under the Agreement.

12.     Implied terms

  • Subject to subclause 12(2), any condition or warranty which would otherwise be implied in the Agreement is hereby exclud
  • Where legislation implies in the Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying application of or exercise or liability under such condition or warranty, the condition or warranty will be deemed to be included in the Agreement. However, the liability of MiPlan for any breach of such condition or warranty will be limited, at the option of MiPlan, to one or more of the following:

(a)           if the breach relates to goods:

  • the replacement of the goods or the supply of equivalent goods; the repair of such goods;
  • the payment of the cost of replacing the goods or of acquiring equivalent goods; or
  • the payment of the cost of having the goods repaired; and

(b)           if the breach relates to services:

  • the supplying of the services again; or
  • the payment of the cost of having the services supplied again.

13.     Changes to Agreement

  • MiPlan may update or modify this Agreement from time to time, including any referenced policies or other documents.
  • If MiPlan modifies this Agreement during the Term of the Agreement, the modified version will be effective upon the next renewal of the Term. If the Customer objects to the updated Agreement, as its exclusive remedy, the Customer may choose not to extend the Term of this Agreement.

14.     Other provisions

  • Subject to subclause 14(2), the parties must keep:

(a)          the other party’s Confidential Information; and

(b)          the terms of this Agreement, confidential, and must not make or approve any communication about it without the prior written approval of the other party.

  • A party may make disclosures in relation to the Agreement to:
  • its employees, agents, professional advisers and bankers if those persons undertake to keep confidential any information so disclosed; or
  • comply with any applicable law or stock exchange if it first provides the other party with a reasonable opportunity to comment on the form and content of the proposed disclosure.
  • Except in respect of any Confidentiality Deed, the Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to its subject matter and the Softw All notices which are required to be given under the Agreement will be in writing and will be sent to the address of the recipient set out in the Order, or such other address as the recipient may designate by notice given in accordance with this clause. Any notice may be delivered by hand or by pre-paid letter. Any such notice will be deemed to have been served when delivered. A notice under the Agreement may be given by email provided that it is sent with a receipt request. Any such notice shall be deemed to have been delivered in the normal course of transmission by electronic means.
  • The Customer must not assign, whether in whole or part, the benefit of the Agreement or any rights or obligations under the Agreement, without the prior written consent of MiPlan, which must not be unreasonably withheld.
  • The Agreement will be governed by and construed in accordance with the laws for the time being in force in the State of Western Australia and the parties agree to submit to the jurisdiction of the courts and tribunals of that State.
  • No forbearance, delay or indulgence by a party in enforcing the provisions of the Agreement will prejudice or restrict the rights of that party, nor will any waiver of those rights operate as a waiver of any subsequent breach.
  • Should any part of the Agreement be or become invalid, that part will be severed from the Agreement. Such invalidity will not affect the validity of the remaining provisions of the Agreement.
  • Prior to commencement of legal proceedings, any dispute or difference arising in connection with the Agreement will be first submitted to a senior executive of MiPlan and the Customer for resolution. If such executives are unable to resolve a dispute within 20 business days of the dispute being referred to them, the dispute or difference must be submitted to mediation in accordance with, and subject to, the Rules for Mediation of Commercial Disputes of the Institute of Arbitrators and Mediators, Aus During such mediation, both parties may be represented by a duly qualified legal practitioner. Nothing in the Agreement prevents either party from bringing urgent interlocutory relief for any breach of confidentiality or infringement of the Intellectual Property Rights.
  • The Customer acknowledges that MiPlan can use the Customer’s installation to promote it market offering. Namely, being MiPlan’s ability to, in its sole discretion:

(a)          publish on the MiPlan website that the Customer is a customer, and refer to a narrative                 formally provided by the Customer;

(b)          act as a customer referee, on a case by case basis; and

(c)          jointly draft with the Customer a case study into the benefits and learnings of the MiPlan Solution, 3 months after post go-live.

15.     Definitions

In this Agreement, the Order and any Master Proposal the following terms have the following meanings:

Acceptance Criteria the technical performance standards for the Software as specified in the Deliverables Document;

Acceptance Date the date upon which the Software is accepted following the Acceptance Tests;

Acceptance Tests the test procedures to be conducted by the Customer after installation of the Software to ensure that the Software is properly operating and achieving the functionality specified in the Acceptance Criteria;

Commencement Date the date so specified in the Order;

Confidentiality Deed any confidentiality agreement entered into by MiPlan and the Customer;

Confidential Information information that is by its nature confidential, including the Customer’s data;

Deliverables the agreed project deliverables as set out in the Deliverables Documents;

Deliverables Documents the documents (if any) prepared and issued by MiPlan based on, and relating to, a component or module in the Order as customised for, and approved by, the Customer;

Designated Computer Equipment the Customer’s equipment on which the Software is to be installed as specified in the Order;

Documentation all documentation (whether in material or non-material form) related to or describing the use and operation of the Software, including the Deliverables Documents and the Manual Of Specifications;

Fee the Licence Fee, the Maintenance Fee, the Support Fee, the Implementation Fee and any other amounts payable by the Customer to MiPlan or the Reseller (as the case may be) under the Order;

GST

  • the same as in the GST Law;
  • any other goods and services tax, or any tax applying to the Agreement in a similar way; and
  • any additional tax, penalty tax, fine, interest or other charge under a law of such a tax;

GST Law the same as ‘GST law‘ in A New Tax System (Goods and Services Tax) Act 1999 (Cth)

Implementation Fee the fee payable by the Customer for implementation of the Software, in the amount specified in the Order;

Intellectual Property Rights all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, designs, patents, circuit layouts, business and domain names, inventions, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields;

Licence the licence for the Software granted pursuant to this Agreement and subject to the other provisions of this Agreement;

Licence Fee the fee payable by the Customer for the Licence, in the amount specified in the Order;

Maintenance the maintenance of the Software and the provision of updates for the Software as more fully described in the Order;

Maintenance Fee the fee payable by the Customer for the Maintenance of the Software, in the amount as specified in the Order;

Maintenance Period the period specified in the Order;

Manual Of Specifications the document which forms part of the Software and which contains instructions on how to use the Software;

Master Proposal any master proposal entered into between MiPlan and the Customer;

Media the media on which the Software is recorded or printed;

Minimum Term the period specified in the Order (if any);

MiPlan Products collectively MiiNT and MiApp products, and any new products MiPlan may release from time to time;

Moral right

(a)                  a right of attribution of authorship;

(b)                  a right not to have authorship falsely attributed;

(c)                  a right of integrity of authorship; or

(d)                  a right of a similar nature,

which is conferred by statute, and which exists or comes to exist anywhere in the world in a deliverable form comprised within the Agreement;

Order an order for MiPlan Products placed by a Customer or Reseller, which may be included within a Master Proposal submitted by MiPlan to the Customer;

party either MiPlan or the Customer, as the case requires;

Permitted Uses the permitted uses of the Software as set out in the Order;

Project Acceptance occurs on the Acceptance Date;

Renewal Term the period as specified in the Order (if any);

Reseller a person authorised by MiPlan to sell MiPlan Products;

Scope of Use has the meaning give in clause 2(1);

Software has the meaning given in the Order;

Support the ‘help-desk’ support offered by MiPlan to the Customer relating to its use and operation of the Software;

Support Fee the fee payable by the Customer for Support of the Software, in the amount as specified in the Order (if any);

Term the period as specified in the Order and any extension of this Agreement beyond the Term in accordance with this Agreement or by mutual consent between the parties.

 

Words importing the singular include the plural and vice versa and words importing one gender will include all other genders. Headings are for ease of reference only and will not affect the interpretation of the Agreement.