Licence Agreement - Terms & Conditions
In these Terms:
ACL means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) and its associated Regulations as amended;
Agreement means any agreement for the provision of the goods, services and Platform by Cybercast to the Customer;
Commencement Date means the earlier of the date of this Agreement as specified in the Schedule or the date upon which the Customer is granted access to the Platform;
Confidential Information means all information in any form relating to the business, goods, services or Platform of Cybercast or its affiliates, disclosed or otherwise made available to the Customer in connection with these Terms, whether or not marked as confidential but excluding information which:
- is known by the Customer at the time of receipt; or
- is, or becomes public knowledge, other than by a breach of these Terms; or/li>
- has been independently developed or acquired by the Customer;
Consumer is as defined in the ACL and in determining if the Customer is a consumer, the determination is made if Customer is a consumer under the Agreement;
Customer means the person specified in the Schedule, jointly and severally if more than one, acquiring the goods or services, and/or access to the Platform from Cybercast;
Goods means goods supplied by Cybercast to the Customer when providing access to the Platform as specified in the Schedule;
GST means the Goods and Services Tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated Regulations as amended;
Cybercast means Soniq Digital Media Pty Ltd (ACN 149 443 181) trading as Cybercast Digital Media;
Intellectual Property means:
- the Confidential Information;
- any and all registered and unregistered trade marks, patents, designs and inventions belonging to, created by or licensed to Cybercast;
- any business, company, domain or product names belonging to, created by or licensed to Cybercast; and
- all copyright, moral rights and know-how in relation to Cybercast, its business operations, the Platform or the goods or services.
Licence means the non-exclusive licence granted by Cybercast to the Customer in relation to the Platform, on the terms and conditions of this Agreement;
Licence Fee means the fee payable by the Customer to Cybercast for access to the Platform under the Agreement as specified in the Schedule;
Licence Term means the term of the Licence from the Commencement Date subject to the provisions of this Agreement relating to early termination;
Payment Terms means the payment terms as specified in the Schedule;
- Cybercast’s online digital signing program as more particularly described in the Schedule;
- any other program or software provided to the Customer by, or on behalf of, Cybercast under this Agreement;
- any changes to the program or software described in paragraphs (a) or (b) above; and
- any documentation provided by Cybercast in relation to the program, as updated or varied in accordance with this Agreement;
PPSA means the Personal Property Securities Act 2009 (Cth) and its associated Regulations as amended;
services means services supplied by Cybercast to the Customer in accordance with this Agreement;
SLA means the Service Level Agreement provided by Cybercast to the Customer from time to time;
Terms means these Terms and Conditions of trade; and
Website means the website operated by Cybercast in order to provide the services and operate the Platform.
Basis of Agreement
- Unless otherwise agreed by Cybercast in writing, the Terms apply exclusively to every Agreement and cannot be varied or replaced by any other terms, including the Customer’s terms and conditions of purchase (if any).
Any quotation provided by Cybercast to the Customer for the proposed supply of goods and services and the proposed use of the Platform is:
- valid for 30 days;
- an invitation to treat only; and
- only valid if in writing.
- The Terms may include additional terms in Cybercast's quotation, which are not inconsistent with the Terms.
- An Agreement is accepted by Cybercast when Cybercast accepts, in writing or electronic means, an offer from the Customer or provides the Customer with any goods, services or access to the Platform.
- Cybercast may refuse to accept any offer from the Customer.
- The Customer must provide Cybercast with its specific requirements, if any, in relation to its use or proposed use of the Platform.
- Cybercast may vary or amend these Terms by written notice to the Customer at any time. Any variations or amendments will apply to quotes or orders placed after the notice date.
Grant of Licence
- In consideration for the payment of the Licence Fee, Cybercast grants to the Customer a non-exclusive licence during the Licence Term to access and use the Platform.
- During the Licence Term, the Customer must:
- comply with and supervise and control the use of the Platform in accordance with the terms of the Licence;
- ensure that the Customer's authorised users are made aware of and comply with the terms of the Licence;
- not provide or otherwise make available the Platform in any form to any person other than the Customer's authorised users without the written consent of Cybercast;
- not decompile, disassemble, reverse engineer, copy nor create a derivative work of the Platform; and
- not remove any reasonable trade mark or copyright notice placed by Cybercast in the pages and screens of the Platform.
- Prices quoted for the goods, services and the use of the Platform include GST and any other applicable taxes or duties.
- If the Customer requests any variation to the Agreement, Cybercast may increase the price to account for the variation.
- Where there is any change in the costs incurred by Cybercast in relation to providing the goods or services, or allowing the Customer use of the Platform, Cybercast may vary its price to take account of any such change, by notifying the Customer.
- Payment must be made in accordance with the Payment Terms, however Cybercast reserves the right to require payment in full on installation of the Platform and provision of any associated goods and services.
- Payment by cheque is not deemed made until the proceeds of the cheque have cleared.
- Payment terms may be revoked or amended at Cybercast’s sole discretion immediately upon giving the Customer written notice.
- The time for payment is of the essence.
If the Customer defaults in payment by the due date of any amount payable to Cybercast, then all money which would become payable by the Customer to Cybercast at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and Cybercast may, without prejudice to any of its other accrued or contingent rights:
- charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 4% for the period from the due date until the date of payment in full;
- charge the Customer for, and the Customer must indemnify Cybercast from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Agreement or to recover any goods;
- cease or suspend supply of any further goods or services to the Customer, or cease or suspend the Customer’s access to the Platform;
- by written notice to the Customer, terminate any uncompleted Agreement with the Customer.
Clauses 6.1(c) and 6.1(d) may also be relied upon, at Cybercast's option:
- where the Customer is a natural person and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or
- where the Customer is a corporation and, it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, administrator, receiver or manager or similar functionary appointed in respect of its assets, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.
- If the Customer defaults in payment by the due date of any amount payable to Cybercast, then all money which would become payable by the Customer to Cybercast at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and Cybercast may, without prejudice to any of its other accrued or contingent rights:
Risk and Insurance
- The risk in the goods associated with the use of the Platform and all insurance responsibility for theft, damage or otherwise will pass to the Customer immediately on Installation.
- The Customer’s access to the Platform is provided on the basis that the Customer has obtained all necessary licenses or permits under all relevant laws and regulations in relation to the goods and Platform.
- The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties arising out of the use, misuse or installation of the goods, services or Platform (excluding where installed by an agent of Cybercast), or possession of any of the goods associated with the Platform by Cybercast, unless recoverable from Cybercast on the failure of any statutory guarantee under the ACL.
Performance of Agreement and Installation
- In providing the Platform, Cybercast agrees to meet the levels specified in the SLA.
Subject to clause 8.1:
Any period or date for:
- Installation of the goods;
- provision of the services; or
- access to the Platform
- Cybercast will use its reasonable endeavours to meet any estimated dates but will not be liable for any loss or damage suffered by the Customer or any third party for failure to meet any estimated date.
- Any period or date for:
- The Customer is responsible for all costs associated with Installation, including freight, insurance and other charges arising from the point of dispatch of the goods to the Customer to the point of Installation.
- The Customer indemnifies Cybercast against any loss or damage suffered by Cybercast, its sub-contractors or employees as a result of Installation.
- Except as the Terms or the SLA specifically state, or as contained in any express warranty provided, 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, design or performance of the Platform, goods or services, or any contractual remedy for their failure.
- If the Customer is a consumer nothing in these Terms restricts, limits or modifies the Customer's rights or remedies against Cybercast for failure of a statutory guarantee under the ACL.
- If clause 9.2 does not apply, then other than as stated in the Terms or any written warranty statement Cybercast is not liable to the Customer in any way arising under or in connection with the sale, Installation, use of, storage or any other dealings with the Platform, goods or services by the Customer or any third party.
- Cybercast is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.
The Customer acknowledges that:
- it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by Cybercast in relation to the Platform, goods or services or their use or application; and
- it has not made known, either expressly or by implication, to Cybercast any purpose for which it requires the Platform and it has the sole responsibility of satisfying itself that the Platform is suitable for the use of the Customer, including but not limited to testing the Platform.
- Nothing in the Terms is to be interpreted as excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be so excluded, restricted or modified.
- Subject to the SLA, if Cybercast is unable to deliver the goods, perform the services or provide access to the Platform, then it may cancel the Customer's order (even if it has been accepted) by written notice to the Customer.
- No purported cancellation or suspension of an order or any part of it by the Customer is binding on Cybercast once the order has been accepted.
If Cybercast accepts the cancellation of an order by the Customer once it has been accepted, the Customer will be liable for and must pay Cybercast for:
- all goods that have been manufactured in whole or part at the time of cancellation;
- any materials or labour that have been ordered or committed to in relation to the order; and
- any work that has been completed for the Customer in relation to the Platform development.
Term and Termination
- This Agreement commences on the Commencement Date and continues for each successive Licence Term unless and until it is terminated.
Either party may, by notice, immediately terminate this Agreement:
- if the other party becomes bankrupt or insolvent or enters into any scheme of arrangement with or for the benefit of his or her creditors or has a liquidator, administrator, receiver or manager or similar functionary appointed in respect of its assets, or any action is taken for, or with the view to, the liquidation winding up or dissolution of the other party; or
- if the other party commits a material breach of this Agreement and does not rectify it within thirty (30) days of being notified of the breach in writing.
- Either party may, at any time, in its absolute discretion terminate the Licence and this Agreement with effect at the expiration of the current Licence Term by providing the other party with at least 60 days prior written notice of termination.
- If no notice of termination is provided at least 60 days prior to the expiration of the Licence Term, then this Agreement will automatically renew and will continue for the subsequent Licence Term (subject to payment of the applicable Licence Fee).
- If a breach of this Agreement by a party (Defaulting Party) is incapable of remedy, the other party (Non-Defaulting Party) may terminate this Agreement immediately on written notice to the Defaulting Party.
Consequences of Termination
- Termination of this Agreement shall not relieve a party of liability to the other party in respect of the rights or remedies of the other party which have accrued prior to termination.
- Subject to the operation of the ACL, any payment made by the Customer to Cybercast prior to the termination of this Agreement will not be refundable.
- If either party terminates this Agreement, then on termination the Licence also ceases and the Customer has no right to use or obtain any advantage from the Platform or from any related Intellectual Property rights in the Platform.
- On termination of this Agreement, the Customer must as soon as reasonably practicable return to Cybercast all Intellectual Property and other property belonging to Cybercast that is in the Customer's possession, custody or control.
- After termination of this Agreement, the Customer must not record, store, document or otherwise retain any copy or version of the Platform.
Shortages and Exchanges
- Subject to clauses 13.2 and 13.3 of this Agreement, and the provisions of the SLA, Cybercast will not be liable for any shortages, damage or non-compliance with the specifications in the Agreement unless the Customer notifies Cybercast with full details and description within 7 days of Installation.
When any shortages, claim for damaged goods or non-compliance with the Agreement specifications is accepted by Cybercast, Cybercast may, at its option:
- replace the affected goods;
- re-provide the affected services;
- effect changes to the Platform;
- refund the price of the affected goods or services; or
- refund the relevant portion of the Licence Fee paid by the Customer.
- If the Customer is a consumer, nothing in this clause 13 limits any remedy available for a failure of the statutory consumer guarantees contained in the ACL.
Intellectual Property Warranty, Infringement and Indemnity
The Customer acknowledges that:
- Cybercast owns, or has the licence to, all Intellectual Property subsisting in or arising in relation to the Platform;
- the Platform is and at all times remains the property of Cybercast; and
- the Customer has no proprietary right or interest in the Platform other than as granted to it under this Agreement.
- The Customer must not register or record or attempt to register or record anywhere in the world any element of the Platform or any improvements, inventions, patents, trademarks, copyright or designs derived from or similar to the Platform or its contents or aid or abet anyone else in doing so.
- Other than pursuant to this Agreement, the Customer must not, at any time during the Licence Term or after termination modify, use, deal with or take advantage of the Intellectual Property rights in the Platform.
- The Customer acknowledges that:
Other than as permitted by these Terms or by Cybercast in writing, the Customer must not:
- use any or all of the Confidential Information for any purpose; or
- divulge to any person all or any aspect of the Confidential Information, or grant or permit any other person to have access to or possession of the Confidential Information.
- If Cybercast permits disclosure of the Confidential Information to a third party, the Customer agrees to take reasonable steps to ensure that it’s employees, officers or agents maintain proper and secure custody of the Confidential Information and do not divulgate or reproduce it in any form.
- The Customer will be liable for any breach of confidentiality by its employees, officers, agents or contractors, if any.
- Other than as permitted by these Terms or by Cybercast in writing, the Customer must not:
- Cybercast is not liable in any way howsoever arising under the Agreement to the extent that it is prevented from acting by events beyond its reasonable control including, without limitation, industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, acts of God, acts or threats of terrorism or war. If an event of force majeure occurs, Cybercast may suspend or terminate the Agreement by written notice to the Customer.
- The law of Victoria from time to time governs this Agreement. The parties agree to the non-exclusive jurisdiction of the courts of Victoria, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts.
- Cybercast’s failure to enforce any of these Terms shall not be construed as a waiver of any of Cybercast’s rights.
- If a clause is unenforceable it must be read down to be enforceable or, if it cannot be read down, the term must be severed from the Terms, without affecting the enforceability of the remaining terms.
- A notice must be in writing and handed personally or sent by email, facsimile or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile or email are deemed received on confirmation of successful transmission.