End User Licence – Netable Apps

  1. Parties

    The parties to this licence are:

    1. Netable Pty Ltd ACN 165 403 092 of Suite 102, 999 Nepean Hwy, Moorabbin 3189 (“Netable”, “us”, “we”, and “our”); and
    2. the End User (“you”);
  2. Background
    1. Netable has developed and continues to develop a variety of apps for integration into the Magento platform (Apps).
    2. Netable makes many of its Apps available for licence by users of the Magento platform.
    3. The Apps will only operate with Magento and generally in accordance with the specifications identified in the Magento marketplace or the Netable website.
    4. These terms apply to each App that Netable makes available, subject to payment of the relevant licence fee. Where you pay a fee to licence an App, that App is called a Licensed App (Licensed App).
  3. Licence
    1. We grant you a personal, non-exclusive, non-transferable, licence to use the Licensed App in its compiled or object code form subject to the terms of these terms.
    2. You must not (and must not procure another to) distribute, reproduce, sub-licence, assign, copy modify, adapt, decompile or reverse engineer Licensed App.
    3. Your licence commences at the time you first use Licensed App and continues unless terminated in accordance with these terms.
    4. Your licence to use the Licensed App does not extend to any other Apps unless you pay thae relevant licence fee to Netable and comply with these terms.
    5. Your licence to use the Licensed App is limited to a single installation:
      1. in a production environment; and
      2. in a test or sandbox environment which is not accessible by the public.
  4. Delivery, Adaptation and Installation
    1. We will make the Licensed App available to you through the Magento Store and any other platform that we may determine from time to time.
    2. You must, at your cost ensure that your hardware and software meet the standards and configuration which we specify (from time to time) in order to operate the Licensed App.
    3. Your are solely responsible for the installation and maintenance of the Licensed App unless you pay us for additional services.
    4. Subject to these Terms, you may amend the Licensed App solely for the purpose of utilising the Licensed App for your own use. Where you make modification or alteration to the Licensed App you acknowledge that:
      1. we can’t offer updates and support for those updates; and
      2. these terms continue to apply to the modified version of the Licensed App, as if it were not subject to modification or alteration.
  5. Fees
    1. In consideration for the grant of this licence you must pay us the up-front licence fee for each App which you wish to use as a Licensed App.
    2. We may impose additional licence fees for ‘in app’ or additional purchases including support, upgrades and enhancements to functionality.
    3. We may vary our licence fees from time.
    4. Each App you pay for creates a new End User Licence Agreement for the App which becomes a Licensed App, subject to these terms.
  6. Intellectual property
    1. We will at all times own the intellectual property rights in the Licensed App, and have the legal right to use the intellectual property rights in Licensed App.
    2. Ownership in all data, and documents entered into Licensed App remains with you.
    3. You are solely responsible for maintaining backups of your data.
    4. Any development, updates or maintenance that we perform will remain solely our intellectual property.
    5. Any modification or alteration which incorporates in part or in whole a Licensed App belongs to us, and by agreeing to these terms you assign all of the intellectual property rights in such modification or alteration to us upon creation.
    6. Subject to clauses 7 to 6.9 (inclusive), we will indemnify you against liability under any final judgment in proceedings brought by a third party against you which determines that your use of the Licensed App constitutes an infringement in Australia of any Intellectual Property Rights in the Licensed App.
    7. We are not required to indemnify you as provided in clause 6 unless you:
      1. notify us in writing as soon as practicable of any infringement, suspected infringement or alleged infringement;
      2. give us the option to conduct the defence of such a claim, including negotiations for settlement or compromise prior to the institution of legal proceedings;
      3. provide us with reasonable assistance in conducting the defence of such a claim;
      4. permit us to modify, alter or substitute the infringing part of the Licensed App at our own expense in order to avoid continuing infringement, or authorise us to procure for you the authority to continue the use and possession of the infringing Licensed App.
    8. We will not indemnify you to the extent that an infringement, suspected infringement or alleged infringement arises from:
      1. use of the Licensed App in combination by any means and in any form with other goods not specifically approved by us in writing;
      2. use of the Licensed App in a manner or for a purpose not reasonably contemplated or not authorised by us in writing;
      3. modification or alteration of the Licensed App without our prior written consent; or
      4. any transaction entered into by you relating to the Licensed App without our prior consent in writing.
    9. If proceedings are brought or threatened by a third party against you, alleging that your use of the Licensed App constitutes an infringement of the third party's Intellectual Property Rights, we may at our option and at our own expense conduct the defence of such proceedings. You must provide all necessary co-operation, information and assistance to us in the conduct of the defence of such proceedings.
    10. You indemnify us against any loss, costs, expenses, demands or liability, whether direct or indirect, arising out of a claim by a third party alleging such infringement if:
      1. the claim arises from an event specified in clause 8; or
      2. if our ability to defend the claim has been prejudiced by your failure to comply with any requirements of clause 7 and 6.9.
  7. Support and maintenance
    1. We are not obliged to provide you with (other than that expressly provided in this Agreement):
      1. support or maintenance for the Licensed App;
      2. updates, or patches to the Licensed App;
      3. any development to integrate the Licensed App with other applications or operating systems,
    2. We are not obliged to provide you with any support or maintenance for Licensed App, but we may provide you with a website where you can provide us with feedback.
  8. Updates and enhancements
    1. We are under no obligation under this Agreement to provide updates or new releases, except to the extent set out in this agreement.
    2. Where an update or new release is provided pursuant to clause 1:
      1. we will allow for online delivery and installation of the new release; and
      2. this Agreement will continue to apply in all respects to the update or new release which shall be deemed to be the Licensed App for the purpose of this Agreement.
  9. Warranties and acknowledgements
    1. You warrant to us that:
      1. you have not relied on and do not assert any representation, warranty, promise or term that is not set out in black and white in this agreement;
      2. you are properly authorised to enter into this agreement; and
      3. you have independently of us, determined that the software is appropriate for your intended use.
    2. You acknowledge that:
      1. The Licensed App:
        1. is not error free, and may not function or may cease to function if modified;
        2. may not be free of viruses, worms, Trojans or other malware;
        3. may not work if the Magento core code is modified; and
        4. may conflict with other applications or Magento themes.
      2. you should back up of all of your data on your hardware device to avoid any corruption or damage that may result from installation of the Licensed App; and
      3. you are solely responsible for backing up data that is input into Licensed App.
    3. We warrant that:
      1. we are entitled to grant this licence;
      2. Licensed App does not infringe any third party intellectual property rights;
      3. subject to clause 10, and 11, for a period of 1 month from the execution date, that the Licensed App will perform substantially in accordance with the functionality contained in the Licensed App product specifications.
  10. Liability and indemnities

    Rights and remedies for non-PDH goods costing no more than $40,000 (or $100,000 from 1 July 2021)

    1. If we supply you with goods or services not of a kind ordinarily acquired for personal, domestic or household use or consumption but costing no more than $40,000 (or $100,000 from 1 July 2021) you have extensive rights under the Australian Consumer Law including consumer guarantees and remedies but:
      1. in relation to these goods, our liability for failure to comply with a consumer guarantee (other than certain guarantees about ownership and undisturbed use) is limited to:
        1. replacing the goods or supplying equivalent ones;
        2. repairing the goods;
        3. paying the cost of replacing the goods or of acquiring equivalent ones; or
        4. paying the cost of having the goods repaired; and
      2. in relation to these services, our liability for failure to comply with a consumer guarantee is limited to:
        1. supplying the services again; or
        2. paying the cost of having the services supplied again.
  11. Exclusion of implied terms and limitation of liability

    Important consumer information:  Nothing in this clause 11 limits the consumer rights and remedies referred to in clause 10.

    1. Subject to clause 10:
      1. Any representation, warranty, condition or undertaking that would be implied in your Contract by legislation, common law, equity, trade, custom or usage or otherwise is excluded from your agreement with us to the fullest extent permitted by law.
      2. We are never liable to you for, and you release us from any Claim for, any Contract Loss.
      3. Where our liability is not excluded, then it is capped at the fee paid for the Licensed App.
    2. For the purposes of these Terms:
      1. Contract Loss means loss or damage suffered by a party and arising in connection with or out of your Contract or any supply made under it (whether pleaded in contract, tort, breach of statutory duty or on any other basis, and whether arising from acts or omissions, and whether or not loss or damage the risk of which another party was or should have been aware), including but not limited to:
        1. economic loss;
        2. business interruption;
        3. loss of revenue, profits, actual or potential business opportunities or contracts;
        4. anticipated savings;
        5. loss of profits;
        6. loss of opportunity;
        7. loss of data;
        8. indirect or consequential loss;
        9. an obligation to indemnify another person;
        10. an obligation to contribute to the compensation of loss or damage suffered by another person.
      2. Claim means any claim, demand, action, proceeding or legal process (including by way of set off, cross-claim or counterclaim)
    3. The application of the United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention) to this Agreement (by virtue of any laws relevant to this Agreement) is excluded.
    4. Without limiting clause 5, you warrant that you have not relied on any representation made by us which has not been stated expressly in this Agreement, or upon any descriptions, illustrations or specifications contained in any document including catalogues or publicity material produced by us.
    5. You acknowledge that to the extent we have made any representation which is not otherwise expressly stated in this Agreement, you have been provided with an opportunity to independently verify the accuracy of that representation.
    6. You must at all times indemnify and hold harmless, both us and our officers, employees and agents (“those indemnified”) from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by:
      1. a breach of your obligations under this Agreement; or
      2. any wilful, unlawful or negligent act or omission of yours or your agents and servants.
  12. Goods and services tax
    1. All pricing is expressed as being exclusive of GST, VAT and local taxes, you must pay all local taxes in addition to the money payable under the Agreement.
  13. Termination
    1. We may terminate this licence:
      1. if any payment due under this licence is reversed or charged back;
      2. on 90 day’s notice where we decide to discontinue a Licensed App;
      3. immediately where you have used the Licensed App for any unlawful use;
      4. immediately where you breach or we suspect a breach of these terms.
  14. Consequences of termination

    If this agreement is terminated in accordance with clause 13 then you must:

    1. stop using the Licensed App;
    2. uninstall the Licensed App.
  15. Force majeure

    We are not responsible for the consequences of a force majeure.

  16. Survival

    Clauses 4, 6, 7, 9, 10, 11, 12, 14, 18, 22 and 23 will not merge upon termination of this agreement, and will continue to operate with full force and effect.

  17. Notices
    1. A notice under this agreement must be written, and emailed, posted or delivered to our Service Address.
    2. Our Service Address is (unless we advise otherwise):

    Suite 102, 999 Nepean Hwy, Moorabbin, 3189

    Email: [email protected]

    1. A notice is deemed to have been given:
      1. if personally delivered – at the time of delivery;
      2. if posted by ordinary mail -- at 10 a.m. on the second Business Day next following posting;
      3. if emailed – one hour after dispatch from the sender’s mail server or (if that period expires other than between 9 a.m. and 4:45 p.m. on a Business Day) at 9 a.m. on the next Business Day; and
      4. where such notice is posted on our website at netable.com.au.
  18. Waiver

    No right under this agreement can be waived except by notice in writing signed by the party waiving it. It a party overlooks a breach of this agreement by the other party on one or more occasions, it is not taken to have agreed to any future breach.

  19. Variation

    Except for any express rights to vary this agreement, no variation is effective unless in writing, signed by both parties, and expressed to be intended to vary this agreement.

  20. Assignment and novation
    1. You cannot transfer, assign, novate or sublicense any or all of its rights, duties or obligations in this agreement to, or share them with, a third party, without our prior approval.
    2. We may transfer, assign, novate or sublicense this agreement without your consent at any time.
  21. Inconsistency

    If any term or condition of this agreement is inconsistent with the law, then the inconsistent term or condition will be read down to the extent of the inconsistency (or severed if absolutely inconsistent) without affecting the balance of the agreement.

  22. Entire agreement
    1. This agreement is the sole and entire agreement between the parties with respect to its subject matter, except for any other agreement which states that it is part of this agreement;
    2. Any prior representations, negotiations, arrangements or understandings are superseded by the terms of this agreement.
  23. Governing law and jurisdiction
    1. This agreement and any dispute under or relating to it is subject to the law of Victoria, Australia;
    2. Any dispute under or relating to it may only be litigated in the courts of Victoria, Australia, and the parties submit to the exclusive jurisdiction of those courts.
  24. Interpretation

    In this agreement, unless the context indicates otherwise:

    1. Dictionary

    the expression:

     

    means:

    business day

     

    any day from Monday to Friday inclusive, excluding any public holidays (always taken, in relation to receipt of a notice, to refer to a Business Day in the recipient’s locale, and in relation to the doing of an act, to the locale of the party who does it or is required to do it)

    business hours

     

    between 8 a.m. and 5:30 p.m. AEST on a Business Day

    dictionary

     

    this table of defined terms

    Licensed App

     

    server-side PHP (Hypertext Preprocessor) scripting programming language, java script and HTML to run as Magento extension or subsequent enhancements and updates which are the subject of this licence agreement

    force majeure

     

    a cause, circumstance or contingency beyond the reasonable control of either party

    GST

     

    Goods and services tax as defined in the GST Act

    GST Act

     

    a new tax system (Goods and Services Tax Act 1999) and a new tax system (Goods and Services Transition Act 1999) as the case may be

    installation

     

    the installation of Licensed App bringing it to a functional state

    Intellectual Property Rights

     

    all rights in relation to patents, copyright, registered designs, registered and unregistered trade marks (include the Trademarks), know-how and confidential information and all other intellectual property as defined in article 2 of the Convention establishing the World Intellectual Property Organisation of July 1967, including without limitation any right to register those rights, whether created before or after the date of this agreement, whether existing in the Territory, Australia or any other country and in all cases for the duration of those rights

    licence fee

     

    the licence fee charged at the point of purchase or in the absence of one in accordance with our price list from time to time

     

     

     

    support

     

    assistance to resolve issues in the performance of Licensed App but does not include training and instruction on use unless we agree otherwise in writing and you pay any additional fees

     

     

     

    1. If an expression is defined in the Dictionary in clause 1 and is capitalised, that is what it means.
    2. If an expression is defined in the Dictionary, grammatical derivatives of that expression have a corresponding meaning. (For instance, if “to colour” means “to paint red”, then “coloured” means “painted red”.)
    3. Headings and footnotes are only for convenience. They are to be ignored when interpreting the agreement.
    4. A schedule to a document (including a schedule to this agreement) is part of that document, as is any document incorporated by reference.
    5. A reference to the singular includes the plural and vice versa.
    6. Where one thing is said to include one or more other things, it is not limited to those other things.
    7. There is no significance in the use of gender-specific language.
    8. A “person” includes any entity which can sue and be sued.
    9. A “person” includes any legal successor to or representative of that person.
    10. A reference to a law includes any amendment or replacement of that law.
    11. Anything a party can do, it may do through an appropriately authorised representative.
    12. Any matter in our discretion is in our absolute and unfettered discretion.