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Software License Agreement

IMPORTANT – YOU, THE LICENSEE, MUST READ THE FOLLOWING CAREFULLY BEFORE CLICKING ON THE “ACCEPT” CHECK-BOX ON THE LICENSOR’S WEB-SITE, OR DOWNLOADING, INSTALLING OR USING THE SOFTWARE.

BY CLICKING ON THE “ACCEPT” CHECK-BOX ON THE LICENSOR’S WEB-SITE AND/OR BY DOWNLOADING, INSTALLING AND/OR USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS LICENSE AGREEMENT AND UNDERSTOOD IT, YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT, AND YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU.

IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT CLICK ON THE “ACCEPT” CHECK-BOX ON THE LICENSOR’S WEB-SITE AND DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE.

IF THE PERSON ACCEPTING THE LICENSE AGREEMENT IS AN INDIVIDUAL ACTING ON BEHALF OF A COMPANY OR ORGANIZATION, THAT PERSON WARRANTS AND REPRESENTS THAT THEY ARE AUTHORIZED TO ACCEPT A LICENSE AGREEMENT OF THIS KIND ON BEHALF OF THE COMPANY OR ORGANIZATION THEY ARE ACTING ON BEHALF OF. IF THEY ARE NOT SO AUTHORIZED, NOR DEEMED IN LAW TO HAVE SUCH AUTHORITY, THEY SHALL AT THE DISCRETION OF THE LICENSOR BE DEEMED TO HAVE ASSUMED SOLE PERSONAL LIABILITY FOR THE OBLIGATIONS SET OUT IN THIS LICENSE AGREEMENT IF THE COMPANY OR ORGANIZATION OR THEY DOWNLOAD, INSTALL OR USE ANY PART OF THE SOFTWARE.

BY PROVIDING YOU WITH A COPY OF THE SOFTWARE OR WITH THE INFORMATION NECESSARY FOR YOU TO DOWNLOAD THE SOFTWARE, THE LICENSOR AGREES TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT. IF THE LICENSOR DOES NOT PROVIDE YOU WITH A COPY OF THE SOFTWARE OR WITH THE INFORMATION NECESSARY FOR YOU TO DOWNLOAD THE SOFTWARE THEN THE LICENSOR DOES NOT AGREE TO BE BOUND BY THIS LICENSE AGREEMENT AND THIS LICENSE AGREEMENT SHALL NOT APPLY.

This agreement (“License Agreement”) is made between:
Spreadsheet Advantage Pty Ltd, a company incorporated in Australia (ABN 61 106 004 200) referred to in this License Agreement as the “Licensor”; and
You being a company or organization or you as an individual referred to in this License Agreement as the “Licensee” or “you”.

1. Grant of License

1.1 The Licensor grants to the Licensee a non-exclusive, non-transferable license to use the Software during the Evaluation Period, subject always to the terms of this License Agreement. The license and the Evaluation Period shall commence on the date the Software is downloaded from the Licensor’s Web-site (or, if the Software is not downloaded, the date the Software is installed on the Licensee’s computer). Under the license granted under this clause 1.1, the Licensee may use the Software on more than one computer and as more than one user for testing purposes during the Evaluation Period.

1.2 Subject to payment in full of the License Fee the Licensor will grant to the Licensee in consideration of the License Fee a non-exclusive, non-transferable license (or licenses if more than one license is purchased) to use the Software subject always to the terms of this License Agreement. Under the license granted under this clause 1.2 the Licensee shall only be permitted to use the Software as a single user on a single computer for each license purchased.

1.3 After expiry of the Evaluation Period the Licensee may not use the Software until the Licensee makes satisfactory payment of the License Fee in full and the registration procedure has been completed. (To register the Licensee must provide the Licensor with one or more ID numbers that are generated by the Software. Following this the Licensor will provide the Licensee with a registration key.)

1.4 The Licensee shall independently obtain licenses for third party software necessary to use the Software.

1.5 The Licensee shall only be permitted to make copies of the Software for back-up or archival purposes, or for testing purposes during the Evaluation Period.

2. Customized Versions

2.1 By way of introduction, in some situations the Licensor may modify the Software to provide the Licensee with a customized version of the Software. (However, the Licensor is not obliged to provide the Licensee with a customized version of the Software.)

2.2 The Licensee will compensate the Licensor (including, without limitation, its directors, officers and employees) for any loss or damage which the Licensor (including, without limitation, its directors, officers and employees) may suffer as a result of any claim at any time that any modifications made for a customized version of the Software infringe the intellectual property rights of any third party.

2.3 This Clause 2 shall continue in effect after the termination of the License Agreement.

3. Assistance and Training

3.1 The Licensee agrees and acknowledges that the Licensor has no obligation to provide assistance or training in connection with the use of the Software.

4. Licensee’s Undertakings

4.1 The Licensee undertakes:
4.1.1 to maintain accurate and up-to-date records of the number and location of all computers on which the Software is installed, and to provide such details within seven working days of a request from the Licensor;
4.1.2 to ensure that all users of the Software are notified of this License Agreement and its terms prior to such users using the Software;
4.1.3 to at all times supervise and control use of the Software in accordance with the terms of this License Agreement;
4.1.4 not to modify or alter the Software;
4.1.5 not to reverse engineer, decompile or disassemble the Software;
4.1.6 not to access the source code of the Software;
4.1.7 not to rent, lease, sub-license, time-share, sell or otherwise transfer or distribute the Software;
4.1.8 not to remove, alter or obscure any notice of copyright, trademark, patent or other proprietary notice on the Software.

4.2 This Clause 4 shall continue in effect after the termination of the License Agreement.

5. Warranty

5.1 The Licensee agrees and acknowledges that the existence of errors or bugs in the Software shall not constitute a breach of this License Agreement.

5.2 If within 365 days of the commencement of this License Agreement the Licensee discovers a material error in the Software that substantially affects the Licensee’s use of the Software and notifies the Licensor of the error, the Licensor shall, at its discretion, either:
5.2.1 provide a new version of the Software to the Licensee in which the error has been corrected; or
5.2.2 refund to the Licensee the purchase price, if any, paid by the Licensee for the Software and terminate this License Agreement.
The Licensor is not obliged to do this if the material error was caused by any modification, variation or addition to the Software not performed by the Licensor, or by incorrect use, abuse or corruption of the Software, or by use of the Software with other software or equipment with which it is incompatible, or by use of the Software in versions of Microsoft Excel® later than Excel 2003.

5.3 Except for the warranty set out in Clause 5.2, to the fullest extent permitted by law the Licensor disclaims any express or implied warranties, including, but not limited to, the implied warranties of merchantability or fitness for any particular purpose.

5.4 The Software is not designed or intended for use in situations in which misuse of the Software or errors or bugs in the Software could lead to death, personal injury, or severe physical or environmental damage. The Software must not be used in such situations.

5.5 This Clause 5 shall continue in effect after the termination of the License Agreement.

6. Licensor’s Liability

6.1 The Licensor (including, without limitation, its directors, officers and employees) shall not be liable to the Licensee for any loss or damage (including, without limitation, any personal injury, death or property damage occasioned to a third party) whatsoever or howsoever caused arising directly or indirectly in connection with this License Agreement or the Software, its use or otherwise, except to the extent that such liability may not be lawfully excluded.

6.2 If for any reason the Licensor (including, without limitation, its directors, officers and employees) becomes liable for any loss or damage that may lawfully be limited, such liability shall be limited to the amount that the Licensee paid the Licensor for the Software or ten (10) United States dollars, whichever is greater.

6.3 The Licensor (including, without limitation, its directors, officers and employees) expressly excludes liability for indirect, special, incidental or consequential loss or damage which may arise in respect of the Software, its use or otherwise, and expressly excludes liability for loss of profit, business, revenue, goodwill or anticipated savings which may arise in respect of the Software, its use or otherwise.

6.4 This Clause 6 shall continue in effect after the termination of the License Agreement.

7. Intellectual Property Rights

7.1 The Software and all Intellectual Property Rights in the Software (including, without limitation, all manuals, images, text and source code incorporated into the Software, modifications and/or enhancements to the Software made by the Licensor) are and shall at all times remain the Licensor’s property.

7.2 To the best of the Licensor’s knowledge and belief, the Software does not infringe any third party’s intellectual property rights. If any valid claim of such infringement is brought to the Licensor’s attention, it may, at its option and expense:
7.2.1 obtain the right for the Licensee to continue to use the Software; or
7.2.2 provide the Licensee with a new version of the Software in which the infringing elements have been removed; or
7.2.3 refund to the Licensee the purchase price, if any, paid by the Licensee for the Software and terminate this License Agreement.

7.3 This Clause 7 shall continue in effect after the termination of the License Agreement.

8. Term and Termination

8.1 This License Agreement shall commence on the date the Software is downloaded from the Licensor’s Web-site (or, if the Software is not downloaded, the date the Software is installed on the Licensee’s computer) and shall continue until terminated in accordance with this License Agreement.

8.2 Either party may terminate this License Agreement at any time forthwith by notice in writing where the other party is in breach of this License Agreement and fails to remedy such breach within thirty (30) days after written notice to correct the breach is given by the party not in default.

8.3 The Licensor may by notice in writing to the Licensee terminate this License Agreement under the circumstances contemplated in clauses 5.2.2 and 7.2.3.

9. Consequences of Termination

9.1 If this License Agreement is terminated for whatever reason:
9.1.1 the license or licenses granted in Clauses 1.1 and 1.2 will immediately end;
9.1.2 within fourteen (14) days after the date of termination, the Licensee shall, at the Licensor’s option, destroy all copies of the Software and certify in writing to the Licensor that the same has been destroyed.

9.2 Except for the consequences stated in Clause 9.1, termination will not affect any already existing rights or liabilities of either party, nor will it affect the coming into force or continuance in force of any provision of this License Agreement that is expressly, or by implication, intended to come into force or continue in force on or after termination of this License Agreement.

10. General

10.1 The terms and conditions of this License Agreement shall also apply to any future versions and any customized versions of the Software that are, at any time, installed on the Licensee’s computer.

10.2 In this License Agreement the use of a word in the singular shall imply the plural use of the word and vice-versa.

10.3 Neither party will be liable for any delay in performing its obligations under this License Agreement if such delay is caused by circumstances beyond its reasonable control (including, without limitation, any delay caused by an act or omission of the other party) and the party affected will be entitled to a reasonable extension of time for the performance of its obligations.

10.4 The Licensee shall not assign or otherwise transfer all or any part of the Software or this License Agreement without the prior written consent of the Licensor.

10.5 No delay, neglect or forbearance on the part of either party in enforcing its rights or any of them against the other shall be construed as a waiver or in any way prejudice any of its rights under this License Agreement nor will any waiver of rights operate as a waiver of any subsequent breach.

10.6 In the event that any provisions of this License Agreement shall be determined by a competent authority to be invalid, unlawful or unenforceable, such provision or provisions shall be severed from the remaining provisions which shall continue to be valid to the fullest extent permitted by law.

10.7 Headings used in this License Agreement are inserted for convenience or reference only and are not intended to be part of or to affect the meaning or interpretation of any of the terms and conditions of this License Agreement.

10.8 This License Agreement shall be governed by and interpreted in accordance with the laws of the State of New South Wales, Australia. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

10.9 In the event of any dispute between the Licensee and the Licensor under this License Agreement, the Licensee and the Licensor will negotiate with each other in good faith in an attempt to resolve such dispute.

10.10 The Licensee agrees that the Software will not be shipped, transferred, exported or used in any manner prohibited by the export laws, restrictions and regulations of the United States and other countries.

10.11 No changes to this License Agreement shall be agreed unless they are signed by both parties.

10.12 The Licensee agrees that it has not relied on any prior representations in entering into this License Agreement.

10.13 This License Agreement supersedes all prior licenses, agreements and arrangements of whatever nature
and sets out the entire agreement and understanding between the parties relating to its subject matter.

11. Further Definitions

11.1 In this License Agreement the following expressions have the following meanings:

“Evaluation Period”: that period of time nominated on the Licensor’s Web-site during which the Licensee can use the Software without payment of the License Fee.

“License Fee”: the license fee payable by the Licensee to the Licensor. It is the amount nominated on the Licensor’s Web-site on the date the Licensee accepts the terms of this Agreement unless otherwise agreed in writing between the Licensor and the Licensee.

“Licensor’s Web-site”: the web-site of the Licensor, the address of which is www.spreadsheetadvantage.com.

“Intellectual Property Rights”: any and all copyright, trademarks, source code, patents and pending patents and all other intellectual property rights in the Software including any modifications made by the Licensor.

“Software”: means the Spreadsheet Advantage product, including the Microsoft Excel® Add-in and any accompanying materials or supporting files, as supplied by the Licensor. (Microsoft Excel® is a registered trademark of Microsoft Corporation.)