COOKING THE BOOKS PTY LTD
SOFTWARE LICENCE AGREEMENT
A. The Company is the legal owner of the Program.
B. The Company has agreed to grant you the right to license the Program on the terms and conditions of this Agreement.
In this Agreement the following definitions apply:
(a) “ACL” means the Australian Consumer Law Schedule to the Competition and Consumer Act;
(b) “Agreement” means this Agreement and any schedule or annexure to it;
(c) “consumer” is defined in the ACL and in determining if you are a consumer, the determination is made if you are a consumer under the Agreement;
(d) “Commencement Date” means the date upon which you commence using the Program;
(e) “Company” means Cooking the Books Pty Ltd of 160 Anderson Street, Yarraville, Victoria, Australia;
(f) “Data” means the content, files, records or other data uploaded by you using the Program to the Website;
(g) “Full Version” means a full licence to use the Program as defined in Clause 2.2 and on the terms and conditions set out in this Agreement;
(h) “Program” means the Company’s web-based computer program designed to generate food costs, stock control, order sheets, recipe cards, sales revenue, electronic ordering and invoicing for the hospitality industry and includes any ancillary programs, related manuals, data, product special updates, information and other documentation and any new releases to rectify errors or bugs in the program (but not new releases or version that provide enhanced operation or features) which the Company provides or makes available;
(i) “Licence” means the licence to use the Program granted by this Agreement;
(j) “Licence Fee” means the amount specified by the Company and accepted by you;
(k) “Trial Version” means a limited licence to use the demonstration version of the Program for the limited period of 45 days and on the terms and conditions set out in this Agreement;
(l) “Website” means a location on the Company’s or its service providers internet server that provides an online interface that enables the Company, you and other users to interact with the Program on the world wide web.
2. Grant of Licence
2.1 This clause 2.1 applies only to a Trial Version of the Program:
(a) The Company grants you a non exclusive licence to use the Trial Version for the purpose of evaluation only for a maximum15 day period commencing at the time of being provided with the Program.
(b) After the 15 day period, you must not continue to use the Program without first obtaining a Licence to use the Full Version from the Company.
(c) You acknowledge that, if not for you entering this Agreement, the Company would not have granted you a Licence to use the Trial Version.
(d) You acknowledge that you are obtaining a Trial Version of the Program and that there may be defects, bugs and faults in the Program. You should not use the Program in a live environment, for day to day commercial use, or where correct results are required.
(e) You acknowledge that the Program may not provide or allow use of all functions and that any results or information provided by the Program may be out of date, incorrect or inappropriate. You acknowledge that you will not rely on any result or information provided by the Program.
(f) You acknowledge that the Company will not be providing and is not obliged to provide any manuals, upgrades, maintenance, initial support or extended support for the Program during the currency of this Agreement.
(g) Clauses 4.2, 4.3, 7 and 8 do not apply to this Agreement.
2.2 This clause 2.2 applies to a Full Version of the Program:
(a) In relation to a Licence for a Full Version, the right to use the Program commences on you being provided with the Program and continues in perpetuity, subject to clause 6. In the case of payment by way of a cheque, the Licence will not commence until the cheque has cleared.
(b) The Licence will be a non-transferable, non-exclusive Licence to:
(i) use the Program on one single user computers not attached to a network or, if connected to a network, use the Program by one person at any one time; and
(ii) make one copy of the Program and ancillary manuals for backup purposes only.
3. Your Obligations
3.1 You hereby comply with the following obligations:
(a) to comply with and supervise and control the use of the Program in accordance with the terms of this Licence;
(b) to ensure your employees, sub¬contractors and other agents who have authorised access to the Program are made aware of and comply with the terms of this Licence;
(c) not to provide or otherwise make available the Program in any form to any person other than those referred to in sub-clause (b) without the written consent of the Company;
(d) not to sell, market, network, transfer, lease, licence, rent, lend or otherwise dispose of or distribute the Program;
(e) not to decompile, disassemble, reverse engineer, copy, create a derivative work from, reverse engineer, reconfigure or otherwise attempt to discover the source code of the Program; and
4.1 You acknowledges that the Software cannot be guaranteed error or interruption free and you further accept that the existence of any such errors shall not be construed a breach of the Licence.
4.2 The Company will replace any defective media at no charge, subject to notification of the defect within 15 days of the date of installation of the Program.
4.3 Subject to clause 4.4, the Company warrants that the performance and functionality of the Program will not be affected by dates prior to, during and after the Year 2000 and that, in particular:
(a) no value for current date will cause any interruption in the operation of the Program;
(b) data-based functionality will behave consistently for dates prior to, during and after year 2011;
(c) in all interfaces and data storage, the century in any date is specified either explicitly or by unambiguous algorithms or inferencing rules; and
(d) the Program recognises the year 2000, and all the leap years beyond the year 2000, as leap years.
4.4 The Company makes no representation nor gives any warranty in relation to any incorrect performance or functionality which results, partly or wholly, from Data, records or other information provided by you or a third party.
4.5 Except as the Agreement specifically states, or as contained in any express warranty provided with the Program, the Agreement does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, or performance of the Program or any contractual remedy for its failure.
4.6 You acknowledge that the Program cannot be guaranteed error or interruption free and the Licensee further accepts that the existence of any such errors shall not be construed a breach of this Agreement or section 54 of the ACL.
4.7 You acknowledge and accepts that the accuracy of the Program’s operation depends upon the accuracy of the Data or information supplied by you, and that the Company will not be liable for any defect, damage to property, injury or death to any person or other claims and demands which may be made against it if such damage results from the Data or information supplied by you.
4.8 Except as specifically set out in this Agreement, the Company makes no representation nor gives any warranty in relation to any incorrect performance or functionality which results, partly or wholly, from data, records or other information provided by you or a third party.
5. Liability and Indemnity
5.1 If you are a consumer, nothing in this Agreement restricts, limits or modifies your rights or remedies against the Company for failure of a statutory guarantee under the ACL.
5.2 If clause 5.1 does not apply, then other than as states in the Agreement or any written warranty statement, the Company is not liable to you in any way arising under or in connection with the use of or any other dealings with the Program by you or any third party.
5.3 The Company will not be liable for any direct, indirect or consequential losses suffered by you or any third party, howsoever caused, including but not limited to the loss of turnover, profits, business or goodwill or any liability to another party as a result of any performance, delay, errors in the Program or any omissions in any Data or information supplied pursuant to this Agreement or as a result of being unable to provide upgrades or new releases or any defects or deficiencies in the Program, except to the extent of liability imposed by the ACL.
5.4 You acknowledge and accept that all reports, data or information or any nature generated by the Program are for informational purposes only and you must allow for changes in circumstances, variations and provision of Data, including but not limited to provision of Data or information by you or third parties which is incorrect or out of date information.
5.5 No warranty is given as to the accuracy, precision or reliability of reports, data or information generated by the Program.
5.6 Nothing in the Agreement is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation which cannot be excluded, restricted or modified.
5.7 You assume all risk and liability for loss, damage or injury to persons or to your property, or third parties arising out of the use or possession of the Program, unless recoverable from the Company on the failure of any statutory guarantee under the ACL.
5.8 You agree to indemnify the Company against all expenses, losses, damages, liabilities and costs (including indemnity from all legal costs) that the Company or a third party may sustain or incur as a result of:
(a) any breach of this Agreement by you or your employees, agents or contractors;
(b) any negligent or unlawful act or omission of you or any of your employees, agents or contractors;
(c) the provision of Data by you;
(d) Your use of the Program;
(e) a third party’s use or reliance on the Data; and
(f) a breach of any third party’s copyright arising in relation to the Data.
5.9 You are solely responsible for maintaining all telephone, high speed internet connection(s), computer hardware and other equipment needed for proper access to and proper use of the Website and all charges related thereto. If your use of the Website results in the need for servicing or replacing of equipment, the Company will not be liable for those costs.
6.1 You acknowledge that the Program is the subject of copyright. You will not during or any time after the expiry or termination of this Licence permit any act which infringes that copyright and, without limiting the generality of the foregoing, you specifically acknowledge that you may not copy the Program except as otherwise expressly authorised by this Licence.
6.2 You will indemnify the Company fully against all liabilities, costs and expenses that the Company may incur to a third party as a result of its breach of the copyright provisions or any other provision of this Licence.
6.3 All right, title, interest, ownership rights in and to the Program, and all copies thereof, are and at all times shall remain the property of the Company.
6.4 The Website and any data or information on it is owned and operated by the Company and hosted by the Company or an internet service provider designated by the Company.
6.5 You warrant that you own the copyright in the Data at the time it is uploaded to the Website. On uploading the Data to the Website, you disclaim all moral rights in the Data and provide the Company with a perpetual and irrevocable licence to copy, modify, publish, sub-licence or otherwise deal with the Data in any manner in the operation of its business or as necessary to provide its services as required under this Agreement.
6.6 You have no rights in the Program other than those set out in this Agreement. Other than in accordance with this Agreement, you must not sell, licence, sub-licence, assign, transfer or in any other way encumber, exploit or deal with (including as a result of succession, or a change in ownership or control) the Licence, Program or the intellectual property rights subsisting in the Program without the Company’s prior written consent and upon such terms as the Company considers reasonable in the circumstances.
7. Term of Licence
7.1 If the Program is a Trial Version, the Company may terminate the Licence at any time by notification to you.
7.2 This Licence may be terminated immediately by the Company in the following circumstances:
(a) if you are in breach of any term of this Licence (including any obligation for the payment of money) and fail to remedy the breach within 14 days of receiving written notice from the Company;
(b) if you, being a corporation, become insolvent as defined in the Corporations Law;
(c) if you, being a firm or partnership, are dissolved;
(d) if you, being an individual, become the subject of bankruptcy proceedings as defined in the Bankruptcy Act;
(e) if you deliberately or knowingly provide incorrect or out of date Data;
(f) if you publish or consent to the publish any unlawful, inflammatory, offensive or defamatory material on or using the Website or using the Program and do not remove the material within 24 hours of being requested to do so; or
(g) if you destroy the Program for any reason.
7.3 If a breach of this Agreement is incapable of remedy, the Company may terminate this Agreement immediately on written notice to you.
7.4 Upon termination of this Licence pursuant to clause 6, you or your representatives must destroy any remaining copies of the Program and documentation or otherwise return or dispose of such material as directed by the Company.
7.5 On termination of this Agreement, for whatever reason, the Company will terminate your access to the Program. This may result in loss of access to all Data and any data which may be in the process of being transferred to or from you. It is your responsibility to securely backup all Data prior to termination. The benefits you derive from the Licence will also end.
7.6 Termination pursuant to this clause will not affect any rights or remedies which the Company may have otherwise under this Licence or at law.
8. Program Upgrades and Data Updates
8.1 The Company may provide you with or make available to you such upgrades or new releases versions of the Program that correct any error or bug in the Program and such upgrade programs will be deemed to be part of the Program.
8.2 Any new releases or new version of the Program that enhance its operation or provide additional features will be the subject of a separate licence and may be offered on different terms and may, at the Company’s sole discretion, require new payment.
8.3 You acknowledge that in order to obtain an upgrade, the Company may need to remotely interrogate and inspect your computers and accordingly, you agree to allow the Company remote access to your computers.
9.1 Upon Payment of the Licence Fee by you, the Company will provide assistance by email or web based information to help you install and operate the Program.
9.2 If you require any additional support, training or site visits, the Company may provide such support and assistance on such terms and payment as you agree with the Company.
The benefit of this License will not be dealt with in any way by you (whether by assignment, sub-licensing or otherwise) without the Company’s written consent.
Failure or neglect by either party to enforce at any time any of the provisions of this Licence will not be construed or deemed to be a waiver of that parties rights under this licence.
12. Governing Law
This Licence will be governed by and construed according to the law of the State of Victoria, Australia.
If all or any part of any provision is judged invalid or unenforceable, in all the circumstances, it will be deemed to be deleted and will not affect the validity or enforceability of the remaining provisions.
Any notice required or authorised to be given or served pursuant to this Agreement will be deemed to have been duly received by the person to whom addressed on the same day when forwarded by electronic mail, facsimile, or personally delivered, or forty-eight (48) hours after posting by ordinary prepaid post.
15. Force Majeure
The Company will not be liable for any delay in or failure of performance if such delay or failure arises from causes beyond its reasonable control including without limitation act of God, war, civil commotion, fire, any action, inaction, demand, order, restraint, restriction, requirement, prevention, frustration or hindrance by or of any person, government or competent authority, unavoidable accident, and any other cause whether specifically referred to above or otherwise which is not within its reasonable control.
16. Entire Agreement
This is the entire agreement of the parties concerning the subject matter of this Agreement. There is no other agreement, understanding, warranty or representation, whether oral or written, binding the parties concerning any aspect of this Agreement.
You acknowledge, by purchasing the program that the above terms and conditions have been read and understood and contains the entire understanding of you and the Company as to the grant of the Licence.