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"Agreement" means "Master Licence Agreement".
"Us" means "Moveware Pty Ltd", "Moveware Ltd" may also be referred to as "we" and "our".
"Customer" shall mean the entity identified as the customer in the Quotation, may also be referred to as ‘You’ and ‘Your’
"Moveware Custom Application" means applications and software products that are provided by Us and are clearly identified as such. They may include but are not limited to "Moveware", "MoveSurvey", "MoveClient", "MovePartner", "MoveTransfer", "MoveConnect" and "MoveSMS".
"Services" means any Software Subscription or Implementation Service as described in the Quotation Form and which must include the features described in and comply with the functionality set out in [the User Guide / marketing material presented on Our website as at the date of this agreement.
"Software" means the software licensed by Us to You, which are included in the Purchased Services and are otherwise described in the Quotation Form.
"Quotation Form" means a quotation form provided by Us to You on or immediately prior to the execution of this Agreement
"Users" means individuals who are authorized by the You to use the Services, for whom Services have been purchased, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business.
"User Guide" means the general application guides provided to the Customer as part of the Quotation process and implementation of services.
"Your Data" means Personal Information and all other data and information concerning Customer or Customer’s personnel or business clients: (a) provided by or on behalf of You to Us; or (b) obtained by Us based on the use or Processing of data or information provided by or on behalf of You to Us.
"Personal Information" means private data about an individual person, including name, address, telephone number, email address, and any other information that identifies an individual.
Purchased Services may include Software Subscription and Implementation Services. We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Quotation Forms.
2.1. Software Subscription Services
2.2 Implementation Services
Implementation services may include Moveware Custom Application installation, configuration, report writing, custom development, data import, training and testing and acceptance procedures.
In full consideration for the Services provided to You, You shall pay all fees specified in all Quotation Forms hereunder. Payment obligations are non-cancellable and fees paid are non-refundable.
Charges for Software Subscriptions referred to in the Quotation Form will be billed to You in advance. Unless specified in the Quotation Form, User subscription fees are based on 3 monthly periods that begin on the subscription start date and thereafter each 3 monthly anniversary thereof. Except as otherwise specified herein or in a Quotation Form, fees are based on services purchased and not actual usage. If you add more Users than the number of Licenses you purchased, we will add those Users to your Account and impose additional charges for such additional Licenses on an ongoing basis
Charges for Implementation services will be billed to you as detailed in the Quotation Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date.
Payment of all charges is to be made prior to the due date. You are solely responsible for any and all fees charged to you by your bank, or financial institution. You agree to notify us about any billing problems or discrepancies within 20 days after they first appear on your invoice. If you do not bring them to our attention within 20 days, you agree that you waive your right to dispute such problems or discrepancies.
3.2. Overdue Charges
If any charges are not received from You by the due date, then at Our discretion and without limiting our other rights and remedies We may do one or more of the following,
3.3 Suspension of Service and Acceleration
3.4 Payment Disputes
We shall not exercise Our rights under Section 3.2 (Overdue Charges) or 3.3 (Suspension of Service and Acceleration) if You pay to Us all moneys not in dispute, the disputed matters are reasonably and in good faith in dispute, You make reasonable endeavours to and are cooperating diligently to resolve the dispute forthwith
Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against it based on Our income, property and employees.
4.1 Acquisition of Non-Moveware Products and Services
We or third parties may from time to time make available to You (e.g. through Moveconnect.com ) third-party products or services, including but not limited to Non-Moveware Applications and implementation, customization and other consulting services. You will agree that any acquisition by You of such non-Moveware products or services, and any exchange of data between You and any non-Moveware provider, is solely between You and the applicable non-Moveware provider and You agree that you have made or will make all due and proper enquiries to ensure that the Non-Moveware Applications meet Your requirements and do not conflict with the Purchased Services. You agree with Us to comply with and abide by all the terms and conditions relating to the Non-Moveware Applications .We do not warrant or support non-Moveware products or services, whether or not they are designated by Us as "certified" or otherwise, except as specified in a Quotation Form. Subject to Section 4.2 (Non-Moveware Applications and Your Data), no purchase of non-Moveware products or services is required to use the Services except a supported computing device, operating system, web browser and Internet connection.
4.2. Non-Moveware Applications and Your Data
If You install or enable Non-Moveware Applications for use with Purchased Services, You acknowledge that We may allow providers of those Non-Moveware Applications to access Your Data as required for the interoperation of such Non-Moveware Applications with the Purchased Services. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Non-Moveware Application providers. The Services shall allow You to restrict such access by restricting Users from installing or enabling such Non-Moveware Applications for use with the Services.
4.3. Integration with Non-Moveware Services
The Purchased Services may contain features designed to interoperate with Non-Moveware Applications (e.g., Google, Facebook or Twitter applications). To use such features, You may be required to obtain access to such Non-Moveware Applications from their providers. If the provider of any such Non-Moveware Application ceases to make the Non-Moveware Application available for interoperation with the corresponding Purchased Services features on reasonable terms, We may cease providing such service features without entitling You to any refund, credit, or other compensation.
5.1. Reservation of Rights in Services
Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein
You shall not
5.3. Your Applications and Code
If You, a third party acting on Your behalf, or a User creates applications or program code using the Purchased Services, You authorize Us to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Us to provide the Services in accordance with this Agreement. Subject to the above, We acquire no right, title or interest from You or Your licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.
5.4. Your Data
Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data, including any intellectual property rights therein.
Where You seek any additions or enhancements to the Software, We will discuss with you the terms and conditions upon which such additions or enhancements will be provided and unless otherwise agreed We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Purchased Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
6.1. Definition of Confidential Information
As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information includes the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Quotation Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that;
6.2. Protection of Confidential Information
The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care)
6.3. Compelled Disclosure
The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
Your Privacy and the protection of Personal Information is important to Us. We will comply, and must procure that our employees, contractors and agents comply, with the Privacy Principles. We must:
If We become aware of any breach or alleged breach of Our obligations under this clause 6.4, We must:
6.6 Cross Border Access of Personal Data
We will only access or transfer Personal Data from where Your Data is located in accordance with the Privacy Principles.
7.1. Our Warranties
We warrant that
For any breach of a warranty above, Your exclusive remedy shall be as provided in Section 10.3 (Termination for Cause) and Section 10.4 (Refund or Payment upon Termination)
7.2. Your Warranties
You warrant or covenant that
Except as expressly provided herein, neither party makes any warranties of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties, including any warranties of merchantability or fitness for a particular purpose, to the maximum extent permitted by applicable law.
7.4. Non-GA Services
From time to time We may invite You to try, at no charge, Our products or services that are not generally available to Our customers ("Non-GA Services"). You may accept or decline any such trial in Your sole discretion. Any Non-GA Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. NON-GASERVICES ARE NOT CONSIDERED "SERVICES" HEREUNDER AND ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue Non-GA Services at any time in Our sole discretion and may never make them generally available.
8.1. Indemnification by Us
We shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a "Claim Against You"), and shall reimburse You for any damages, attorney fees and costs finally awarded against You as a result of, and for amounts paid by You under a court-approved settlement of, a Claim Against You; provided that You;
If We reasonably believe the Services may infringe or misappropriate, We may in Our discretion and at no cost to You and in full and final settlement of all our legal rights and obligations to You:
8.2. Indemnification by You
You shall defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a "Claim Against Us"), and shall indemnify Us for any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us; provided that We;
8.3. Exclusive Remedy
This Section 8 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.
9.1. Limitation of Liability
Subject to clause 8, neither party’s liability with respect to any one or more incidents arising out of or related to this agreement (whether in contract or tort or under any other theory of liability) shall not exceed in any 12 month period (commencing from the date of this agreement) the net amount paid by You hereunder in that 12 months (after deducting any previous amount or amounts paid to the party claiming damages) provided that in no event shall either party’s aggregate liability arising out of or related to this agreement (whether in contract or tort or under any other theory of liability) exceed the total amount paid by You hereunder. The foregoing shall not limit your payment obligations under section 6 (fees and payment for purchased services).
9.2. Exclusion of Consequential and Related Damages
In no event shall either party have any liability to the other party for any lost profits or revenues or for any indirect, special, incidental, consequential, cover or punitive damages however caused, whether in contract, tort or under any other theory of liability, and whether or not the party has been advised of the possibility of such damages. The foregoing disclaimer shall not apply to the extent prohibited by applicable law.
9.3 Accounting Practice Limitation
We do not teach accounting or accounting principles. If applicable, it is recommended that the User(s) who will be operating your application be at minimum, familiar with the basics of bookkeeping. If this User(s) does not have bookkeeping experience, we recommend that they attend a beginner accounting course at a local university or technical school prior to operating the software. We do not issue opinions on accounting rules, principles or transactions.
10.1. Term of Agreement
This Agreement commences on the date You accept it and continues until all Software Subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
10.2. Term of Purchased Software Subscriptions
User subscriptions purchased by You commence on the start date specified in the applicable Quotation Form and continue for the subscription term specified therein. Unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term and except as otherwise specified in the applicable Quotation Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter),. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 6% of the pricing for the relevant Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Quotation Form as promotional or one-time in which case the price for the succeeding term for the relevant Services shall be as agreed between the parties and failing agreement Your right to continue to use the relevant Services will terminate at the end of such prior term.
10.3. Termination for Cause
A party may terminate this Agreement for cause:
10.4. Refund or Payment upon Termination
Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination, such refund to take place on the later of 30 days from the termination for cause by You or the date upon which any claim for damages by You to Us have been quantified and paid. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Quotation Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination. Implementation fees are not refundable.
10.5. Return of Your Data
Upon request by You made within 30 days after the effective date of termination of a Purchased Services subscription, We will make available to You for download a file of Your Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.
10.6. Surviving Provisions
Section 3 (Fees and Payment for Purchased Services), 5 (Proprietary Rights), 6 (Confidentiality), 7.3 (Disclaimer), 8 (Mutual Indemnification), 9 (Limitation of Liability), 10.4 (Refund or Payment upon Termination), 10.5 (Return of Your Data) and 11 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction)
Who You are contracting with under this Agreement, who You should direct notices to under this Agreement, what law will apply in any lawsuit arising out of or in connection with this Agreement, and which courts can adjudicate any such lawsuit, depend on where You are domiciled.
|Where You are domiciled||Who You are
|Notices to be
|The governing law||The courts having
Australia, New Zealand
or a country in Asia
or the Pacific Region
|Moveware Pty Ltd||Suite 201
354 Tooronga Road
Glen Iris 3146
|Victoria, Australia||Victoria, Australia|
|The United States of America,
Canada, Mexico or a
country in South America
or the Caribbean
|Moveware Ltd (Canada)||Suite 200
3340 Mainway Drive
L7R 0C9 Canada
|Ontario, Canada||Ontario, Canada|
|A country in Europe,
the Middle East or Africa
|Moveware Ltd (UK)||13 Smiths Yard
London SW18 4HR
|England & Wales||England & Wales|
11.2. Manner of Giving Notice
Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon:
Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.
11.3. Agreement to Governing Law and Jurisdiction
Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
11.4. Waiver of Jury Trial
Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.