The Parties agree as follows.
- LICENCE COMMENCEMENT DATE
- Licence Commencement Date: The date of this Agreement
- Term: 3 years from the date of this Agreement
- GRANT OF LICENSE
- List Merchants on the APP using the Licensor’s approved online listing process, and
- Access and use of supporting Documentation provided by the Licensor on its Web portal
- RESTRICTIONS ON USE
- not assign this agreement or transfer, lease, export or grant a sublicense of the LICENSED IP or the license contained herein to any Person except as and when authorised to do so by Licensor in writing; except as expressly provided for in Schedule "A"
- not reverse engineer, decompile or disassemble the APP
- not use the LICENSED IP except as authorised herein
- take all reasonable precautions to prevent third parties from using the LICENSED IP in any way that would constitute a breach of this agreement including, without limitation, such precautions as Licensee would otherwise take to protect its own proprietary APP or hardware or information. In addition, Licensee shall not use the LICENSED IP to act as a service bureau, in whole or in part, for any other Person, including any affiliate of Licensee except as expressly provided in Schedule "A". For the purposes of this agreement, "Person" includes an individual, corporation, partnership, joint venture, trust, unincorporated organisation, the Crown or any agency or instrumentality thereof or any other judicial entity recognised by law.
- AUTHORISED LISTING LOCATION(S)
Provided that Licensee is not in default of any term of this agreement, Licensee may List Merchants on the APP in any location in Australia.
- LISTING PRICE
The Listing Price as indicated in Schedule "A", is the published Listing Price. Licensor may change the Listing Price from time to time, without the consent of the Licensee, by delivering electronically 7 days prior written notice of the change of the Listing Price to the Licensee.
- LISTING COMMISSION
The Listing Commission as indicated in Schedule "A", is the published Listing Commission. Licensor may change the Listing Commission from time to time, without the consent of the Licensee, by delivering electronically 7 days prior written notice of the change of the Listing Commission to the Licensee.
- SHOPPING COMMUNITY
The Licensee Shopping Community means the three levels within the standard 5 level matrix from which Shopping Community Commission will be paid. Level 1 Master Franchisee and Level 2 Franchisee are not included in the Shopping Community Commission. Licensee receives commission on three levels commencing at Level 3 to 5.
When a Licensee Lists a Merchant on the APP the Merchant is placed in (level 3) of the Licensee’s Shopping Community. Any additional customers of the Merchant who register are placed in (Level 4), and any additional friends of the customer who register are placed in (Level 5).
Shopping Community Commission
- REVENUE SHARE
Licensor will pay annually to the Licensee for the initial term of this agreement a “Revenue Share” of the Licensors Revenue from the Australian Market as set out in Schedule "A".
Licensee must complete the online training as provided by the Licensor prior to commencement. Licensee must complete any ongoing additional online training as provided by the Licensor.
Licensor shall provide the following maintenance and support services (the "Maintenance Services") in respect of the LICENSED IP:
- Maintain the APP and diagnoses any defects in a currently supported version
- Releases new versions of the APP which Licensor elects to make available
- Update Documentation
- Provide Help Desk Support
- LICENCE FEE
Licensee shall pay those license fee as set out in Schedule "A" for the use of the LICENSED IP.
- INTELLECTUAL PROPERTY INDEMNITY
Licensor is the owner of all intellectual property rights in the LICENSED IP (including any Improvements or Modifications thereto) including all related written materials, logos, names and other support materials provided pursuant to the terms of this agreement. No title to the intellectual property in the LICENSED IP is transferred to Licensee by this agreement. Licensor represents and warrants that it has the right to grant the license hereby granted to use the LICENSED IP and that there are not, nor will there be, any lien, encumbrance, security interest or other rights against the LICENSED IP.
Licensor agrees to indemnify Licensee and hold it harmless from any and all damages (including punitive damages), losses or expenses (including without limitation, court costs, arbitration fees, penalties, fines, amounts paid in settlement of claims and reasonable legal fees and expenses of investigation) (hereinafter referred to as the "Losses") which Licensee or any of its respective officers or directors, may incur, suffer or become liable for as a result of or in connection with any claim asserted against Licensee to the extent such claim is based upon a contention that the LICENSED IP, or any portion thereof, in the form accepted by Licensee and used within the scope of this agreement infringes any Australian patents, copyrights, trade secrets, trademarks or other intellectual property rights of any third party, provided that Licensee has notified Licensor in writing of such claim within 21 days of the Licensee becoming aware of such claim.
Each of Licensor and Licensee shall use reasonable efforts (and, in any event, that are no less than the efforts used to protect its own Confidential Information) to protect from disclosure such information that is the Confidential Information of the other. Each of Licensor and Licensee shall divulge such Confidential Information only to its employees or agents who require access to it for the purposes of this Agreement or as otherwise provided in this Agreement. Each of Licensor and Licensee (the "Indemnifying Party") agrees to indemnify the other (the "Indemnified Party") for all Losses incurred by the Indemnified Party as a result of a failure of the Indemnifying Party to comply with its obligations under this Section 13 provided that the Indemnified Party has given prompt notice of any such claim and, to the extent that a claim may lie against a third party for the unauthorised disclosure of such Confidential Information, the right to control and direct the investigation, preparation, action and settlement of each such claim, and further provided that the Indemnified Party reasonably cooperates with the Indemnifying Party in connection with the foregoing and provides the Indemnifying Party with all information in Indemnified Party's possession related to such claim and such further assistance as reasonably requested by Indemnifying Party.
"Confidential Information" means all data and information relating to the Merchant and management of either party, including proprietary and trade secrets, technology and accounting records to which access is obtained hereunder by the other party, provided, however, that Confidential Information shall not include any data or information which:
- is or becomes publicly available through no fault of the other party;
- is already in the rightful possession of the other party prior to its receipt from the other party;
- is independently developed by the other party;
- is rightfully obtained by the other party from a third party;
- is disclosed with the written consent of the party whose information it is; or
- is disclosed pursuant to court order or other legal compulsion.
This Section 13 shall survive the termination of this Agreement. Licensee acknowledges and agrees with Licensor that the breach by it of any of the provisions of this agreement would cause serious and irreparable harm to Licensor which could not adequately be compensated for in damages and in the event of a breach by Licensee of any of such provisions, Licensee hereby consents to an injunction being issued against it restraining it from any further breach of such provision, but such action shall not be construed so as to be in derogation of any other remedy which Licensor may have in the event of such a breach.
- LIMITATION OF LIABILITY
The limitation of liability provisions of this agreement reflects an informed voluntary allocation of the risks (known and unknown) that may exist in connection with the provision of the goods and services hereunder by Licensor including the performance of the LICENSED IP provided hereunder, and that such voluntary risk allocation represents a material part of the agreement reached between Licensor and Licensee. Should Licensor be in breach of any obligation, Licensee agrees that Licensee's remedies will be limited to those set forth in this agreement. No action, regardless of form, arising out of this agreement may be brought by Licensee more than 3 months after the facts giving rise to the cause of action have occurred, regardless of whether those facts by that time are known to, or reasonably ought to have been discovered by, Licensee.
- Direct Damages Only
- Subject to the restrictions in this Section 14 and the indemnities provisions of Section 12 (Intellectual Property Indemnity) and Section 13 (Confidential Information Indemnity), and subject to Licensee's election, if so entitled in Australian Law, to rescind or be discharged from this agreement, in the event of any breach by Licensor of its obligations under this agreement, including any breach of a fundamental term or a fundamental breach, Licensee's exclusive remedy shall be to receive from Licensor payment for actual and direct damages to a maximum amount equal to the greater of:
- Australian $500; less the amount of any damages already paid or to which Licensee is or may be entitled by reason of any claim arising out of a breach (including fundamental breach) by Licensor of this agreement, or otherwise, whether based in contract, tort (including negligence), or otherwise.
- No Indirect Damages, etc.
IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY CLAIM FOR: (A) PUNITIVE, EXEMPLARY, OR AGGRAVATED DAMAGES; (B) DAMAGES FOR LOSS OF PROFITS OR REVENUE, FAILURE TO REALISE EXPECTED SAVINGS, LOSS OF USE OR LACK OF AVAILABILITY OF LICENSEE FACILITIES, INCLUDING ITS COMPUTER RESOURCES AND ANY STORED DATA; (C) INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES; OR (D) CONTRIBUTION OR INDEMNITY IN RESPECT OF ANY CLAIMS AGAINST LICENSEE.
- Warranties; Other than as expressly provided herein, each of the LICENSED IP, the services provided hereunder and the APP, is provided "as is" without warranty, representation or condition of any kind, expressed or implied. There is no guarantee of Listing Commission or Shopping Community Income. Hardware products provided to Merchants as part of a Listing on the APP are provided only with the Manufacturers warranty.
Either party shall have the right on notice to the other party to terminate this agreement if:
- the other party should fail to pay an amount to the other when due hereunder (other than an amount such party, in good faith, disputes is owing) and such breach is not cured within 21 days after written notice of such is given to it by the other party;
- the other party shall file a voluntary petition in bankruptcy or insolvency or shall petition for reorganization under any bankruptcy Australian Law (and such is not dismissed within 21 days);
- the other party shall consent to involuntary petition in bankruptcy or if a receiving order is given against it under the Australian Bankruptcy Law (and such is not dismissed within 21 days);
- there shall be entered an order, judgment or decree by a court of competent jurisdiction, upon the application of a creditor, approving a petition seeking reorganization or appointing a receiver, trustee or liquidator of all or a substantial part of the other party's assets and such order, judgment or decree continues in effect for a period of 21 consecutive days; provided, however, that such order, judgment or decree may remain in effect for longer than such 21 days, if the other party is diligently appealing such order, judgment or decree; or
- the other party shall fail to perform any of the other material obligations set forth in this agreement and such default in the case of a default which is remediable continues for a period of 21 days after written notice of such failure has been given by the no defaulting party.
- Licensor may forthwith terminate this Agreement if Licensee is in breach of any of Sections of this agreement. Licensor shall provide written notice of such termination as soon as practicable but written notice shall not be a necessary prerequisite to such termination.
- Upon the termination of this agreement, without prejudice to any other rights which the Licensee may have:
- Licensee shall immediately deliver to Licensor any of Licensor's Confidential Information provided hereunder then in its possession or control.
- Licensee shall refrain from further use of such Confidential Information of the LICENSED IP; and
- Each party shall forthwith pay all sums owing to the other hereunder.
- NONSOLICITATION OF EMPLOYEES
During the term of this agreement and for a period of 1 year thereafter, the Licensee agrees not to hire or allow its respective affiliates to hire:
- any employee of the Licensor; or
- any person who was an employee of the Licensor during the previous 12 months, who was directly involved in the provision of LICENSED IP or any of the related services provided hereunder unless otherwise agreed to by the Licensor.
- FORCE MAJEURE
Dates and times by which Licensor is required to render performance under this agreement shall be automatically postponed to the extent and for the period that Licensor is prevented from meeting them by reason of any cause beyond its reasonable control, provided Licensor notifies Licensee of the commencement and nature of such cause and uses its reasonable efforts to render performance in a timely manner.
- ASSIGNMENT, ETC.
Licensor may assign this agreement, or any of its rights or obligations hereunder, in whole or in part, subject to providing prior written notice to Licensee. Licensee may not assign this agreement, or any of its rights or obligations hereunder, in whole or in part, with the prior written consent of Licensor. This agreement shall endure to the benefit of and be binding upon each of Licensee and Licensor and their respective successors and permitted assigns.
- GOVERNING LAW, ETC.
This agreement shall be governed by and construed in accordance with the State of Queensland Australia.
This agreement, and any documents referred to herein, is the entire agreement between Licensee and Licensor pertaining to Licensee's right to use the LICENSED IP and the provision of the services and supersedes all prior or collateral oral or written representations or agreements related thereto. In the event that one or more of the provisions is found to be illegal or unenforceable, this agreement shall not be rendered inoperative, but the remaining provisions shall continue in full force and effect. Except as otherwise provided herein, no term or provision hereof shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether expressed or implied, shall not constitute a consent to, waiver of, or excuse for any other different or subsequent breach. Unless otherwise expressly provided, any notice or other communication required or permitted to be given hereunder or for the purposes hereof to Licensee or Licensor shall be in writing and shall be sufficiently given if delivered personally to such party, or if sent by prepaid registered mail or if transmitted by email to such party at the address noted in Schedule "A".