SOFTWARE LICENSE AGREEMENT
1. GRANT OF SOFTWARE LICENSE
Subject to the terms and conditions of this Agreement, Power Media Design Pty. Ltd. (COMPANY) grants to the user (LICENSEE) a non-exclusive, non-transferable license to install and use the collective suite PowerPlayer client software programs (Licensed Programs). The LICENSEE may use the Licensed Programs in executable format only, exclusively for use with the COMPANY’s PowerSignage digital signage service (Licensed Service). The LICENSEE may not translate, reverse engineer nor modify the Licensed Programs nor any software associated with the License Service, nor incorporate them into other software nor online service. The LICENSEE may not transfer nor sublicense the Licensed Programs nor Licensed Service to any third party, in whole nor in part, in any form, whether modified nor unmodified.
2.OWNERSHIP
Licensed Programs and Licensed Service, including translations, partial copies, modifications and updates are the property of the COMPANY.
3. PROPRIETARY RIGHTS
The LICENSEE recognizes that the COMPANY regards the Licensed Programs and License Service as its proprietary information and as confidential trade secrets of great value. The LICENSEE agrees not to provide nor to otherwise make available in any form the Licensed Programs, nor any portion thereof, to any person other than the the LICENSEE or employees of the LICENSEE without the prior written consent of the COMPANY. The LICENSEE further agrees to treat the Licensed Programs and Licensed Service with at least the same degree of care with which the LICENSEE treats its own confidential information and in no event with less care than is reasonably required to protect the confidentiality of the Licensed Programs and Licensed Service.
4. TERMINATION
COMPANY may terminate this Agreement without prejudice if the LICENSEE is in default of any of the terms and conditions of this Agreement and fails to correct such default within ten (10) days after written or email notice thereof from the COMPANY.
5. WARRANTY DISCLAIMER
THE COMPANY licenses, and the LICENSEE accepts, the licensed programs “AS IS”. YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS OR STATUTORY GUARANTEES UNDER YOUR LOCAL LAWS WHICH THIS AGREEMENT CANNOT CHANGE. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAWS, THE COMPANY PROVIDES NO WARRANTIES AS TO THE FUNCTION NOR USE OF THE LICENSED PROGRAMS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE LICENSED PROGRAM AND LICENSED SERVICE IS WITH THE LICENSEE. LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE LICENSED PROGRAMS AND LICENSED SERVICE WILL MEET THE LICENSEE’S REQUIREMENTS NOR THAT THE OPERATION OF THE LICENSED PROGRAMS WILL BE UNINTERRUPTED NOR ERROR FREE.
6. LIMITATION OF LIABILITY
THE COMPANY’S LIABILITY TO THE LICENSEE UNDER ANY PROVISIONS OF THIS AGREEMENT FOR DAMAGES FINALLY AWARDED SHALL BE LIMITED TO THE AMOUNTS ACTUALLY PAID HEREUNDER BY THE LICENSEE TO THE COMPANY. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, NOR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF USE, LOSS OF PROFITS NOR INTERRUPTION OF BUSINESS, HOWEVER CAUSED NOR ON ANY THEORY OF LIABILITY.
7. SUCCESSORS
This Agreement will be binding upon and will inure to the benefit of the parties hereto and their respective representatives, successors and assigns except as otherwise provided herein.
8. SEVERABILITY
In the event any provision of this Agreement is determined to be invalid or unenforceable, the remainder of this Agreement shall remain in force as if such provision were not a part.
9. JURISDICTION
This Agreement shall be governed and interpreted by the laws of the state of Western Australia in the Commonwealth of Australia. Both the LICENSEE and the COMPANY agree to submit to the exclusive jurisdiction of the courts of that state for the resolution of any disputes hereunder.
10. NON-ASSIGNMENT
This Agreement and the licenses granted by it may not be assigned, sublicensed, or otherwise transferred by the LICENSEE without the prior written consent of the COMPANY.
11. ENTIRE AGREEMENT
This Agreement sets forth the entire understanding between the parties with respect to the subject matter hereof, and merges and supersedes all prior agreements, discussions and understandings, express or implied, concerning such matters. This Agreement shall take precedence over any additional or conflicting terms which may be contained in the LICENSEE’s purchase order or the COMPANY’s order acknowledgement forms.