Customer: has the meaning ascribed to that term in the Licence Agreement.
Dispute: any dispute, disagreement, claim, controversy, demand, proceeding, suit, action or cause of action in contract, tort, under statute, including under the Competition and Consumer Act 2010 (Cth) or otherwise a relevant Law.
Fee: the licence fee payable by the Customer to AAI Limited under the Licence Agreement.
Intellectual Property Rights: all existing and future patents, copyrights, design rights, trademarks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and any other rights to registration of such rights, anywhere in the world.
Law: any applicable statute, regulation, by-law, ordinance, policy or subordinate legislation in force from time to time in Australia and/or New Zealand.
Licensee(s): means all employees and contractors identified on the Order From as “Primary Licensees” and “Additional Licensees”.
Licence Agreement: The licence agreement under which the Software is licensed to the Customer.
Modification: release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version.
New Version: any new version of the Software which from time to time is publicly marketed and offered for purchase by the Supplier in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
Order Form: the order form prescribed by AAI Limited specifying the licences that the Customer wishes to purchase.
Site: the premises from which the Customer carries out its business.
Software: means escribe and any Modification which is licensed to the Customer under a Licence Agreement.
Specifications: any specifications in relation to the Software set out in the Order Form.
AAI Limited: means AAI Limited Pty Ltd ACN 005 297 807 whose registered office address is Level 18, 36 Wickham Terrance, Brisbane, Queensland 4000, Australia.
1.2 Unless the context otherwise requires:
(a) references to the Supplier and the Customer include their permitted successors and assigns;
(b) references to statutory provisions include those statutory provisions as amended or re-enacted;
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
2. Use of the Software
2.1 Thatcham Research a company registered in England and Wales under company number 00967763 whose registered address is at Colthrop Way, Thatcham, Berkshire RG19 4NR (Supplier) is the owner of the Software.
2.3 Use of the Software shall be restricted to use of the Software for the normal business purposes of the Customer (which shall not include allowing the use of the Software by, or for the benefit of, any person other than an employee of the Customer).
2.4 You must not use the Software other than as specified in clause 2.3without the prior written consent of the Supplier.
2.5 Except as expressly stated in this clause2, you have no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part.
2.6 You must not use any information provided by the Supplier to create any software whose expression is substantially similar to that of the Software nor use such information in any manner which would be restricted by any copyright subsisting in it.
2.7 You shall:
(a) ensure that your use of the Software does not exceed the number of user licences purchased by the Customer;
(b) ensure that the Software is only accessed from designated equipment at the Site or on portable equipment which is allocated to you based wholly or mainly at the Site;
(c) ensure that the Software is accessed and used on only one computing device at the Site;
(d) keep a complete and accurate record of your copying and disclosure of the Software and produce such record to the Supplier on request from time to time; and
(e) ensure that the Software is only used by trained professionals in the motor repair and insurance industries.
2.8 You may:
(a) print off extracts from the Software in hard copy; and
(b) save extracts from the Software locally; and
(c) export extracts from the Software to other of the Customer’s systems at the Site,
solely for the Customer’s internal business purposes provided any and all copyright and proprietary notices are kept intact and that you will destroy or delete all such extracts no later than 6 months after they were downloaded from the Software. You may not otherwise copy, alter, vary or modify or transfer use of the Software to any third party.
2.9 You shall promptly notify the Supplier in the event that you become aware of any actual or suspected infringement of any of the Supplier’s Intellectual Property Rights.
2.10 The Supplier may collect your usage data from the Customer, including, but not limited to:
(a) the installation serial number; and
(b) the number views of times, methods, newsletters; and
(c) the vehicles and panels viewed for times and methods; and
(d) the number of views of estimate breakdown/detail reports; and
(e) the newsletters viewed; and
(f) parts usage data.
2.11 The following services within Software are subject to a fair usage policy (“Usage Policy”) whereby your usage of the Software should not exceed the following limits:
(a) Vehicle lookups per 6 months per Site: 1000
(b) Repair specifications created per 6 months per Site: 1000
2.12 If you exceed the Usage Policy, the Supplier may at its option:
(a) limit the speed of, or block the Customer’s access to, services forming part or all of the Software;
(b) disconnect the Customer from the Software;
(c) terminate the Licence Agreement with immediate effect; or
(d) direct AAI Limited to terminate the Licence Agreement with immediate effect.
2.13 The Supplier will retain repair specifications produced by your usage of the Software for a maximum period of 6 months from the last update of the repair specification.
4. Exclusion of warranties
4.1 To the fullest extent permitted by Law, but subject to clause 4.2, the Supplier, AAI Limited and their affiliates exclude all warranties, representations, implied terms and guarantees about the currency, accuracy, completeness, suitability, functionality or reliability of the Software and any content or information associated with the Software.
4.2 You may also have rights and remedies available under the Competition and Consumer Act2010(Cth). Without limiting these rights and remedies and to the extent permitted by Law, the liability of the Supplier and its affiliates is limited, at its option, to the replacement or repair of the relevant goods, or the resupply or a refund of the cost of the relevant services.
4.3 The Supplier does not warrant that the use of the Software will be uninterrupted or error-free.
4.4 You accept responsibility for the selection of the Software to achieve its intended results and acknowledge that the Software has not been developed to meet your individual requirements or the individual requirements of the Customer. You must in all circumstances ensure that any information, process, procedure or specification which is to be used or followed by you or the Customer, and which has been derived or drawn from the Software, is wholly appropriate for the intended purpose given all of the circumstances.
5. Limits of liability
5.1 Subject to clause 4.2and to the maximum extent permitted by Law, the Supplier, AAI Limited and their respective affiliates, directors, officers, employees, contractors and agents exclude all liability for any loss or damage (including, without limitation, direct, indirect, special or consequential loss or loss of profits) suffered by you or a Licensee, whether arising under contract, tort (including negligence), equity, statute or any other cause of action, or otherwise, as a result of installing, using or accessing the Software, or any content, information, products or services available on or from the Software. You and all Licensees release all such entities and persons from all such liability. The provision of this clause is for the benefit of, and is intended to be enforceable by, the Supplier, AAI Limited and their respective affiliates, directors, officers, employees, contractors and agents, including under the Contracts (Privity) Act 1982 (New Zealand).
5.2 You indemnify and hold the Supplier, AAI Limited and their respective affiliates, directors, officers, employees, contractors and agents harmless from and against any action, claim, liability, loss or expense relating to or arising from your use of the Software.
6. Intellectual property rights
6.2 If any third party brings a claim or action against you or the Customer alleging that the possession, use, development, modification or maintenance of the Software (or any part thereof) in accordance with the terms of this licence infringes the Intellectual Property Rights of a third party (Claim), or notifies you of an intention to make a Claim against you or the Customer, you must:
(a) as soon as reasonably practicable, give written notice of the Claim to the Supplier, specifying the nature of the Claim in reasonable detail;
(b) not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Supplier (such consent not to be unreasonably conditioned, withheld or delayed);
(c) give the Supplier and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within your power or control, so as to enable the Supplier and its professional advisers to examine them and to take copies (at the Supplier's expense) for the purpose of assessing the Claim; and
(d) subject to the Supplier providing security to you or the Customer to the Customer's reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, take such action as the Supplier may reasonably request to avoid, dispute, compromise or defend the Claim.
6.3 If any Infringement Claim is made, or in the Supplier's reasonable opinion is likely to be made, against you or the Customer, the Supplier may at its sole option and expense:
(b) modify the Software so that it ceases to be infringing;
(c) replace the Software with non-infringing software;
(d) terminate the Licence Agreement immediately by notice in writing to the Customer and refund any Fee paid by you or the Customer to AAI Limited as at the date of termination (less a reasonable sum in respect of your use or the Customer's use of the Software to the date of termination) on return of the Software and all copies thereof; or
(e) direct AAI Limited to terminate the Licence Agreement immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer to AAI Limited as at the date of termination (less a reasonable sum in respect of the Customer's use of the Software to the date of termination) on return of the Software and all copies thereof.
6.4 This clause 6constitutes your exclusive remedy and the Supplier's only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 5.1.
9. Entire agreement
11. No partnership or agency
12. Force majeure
13.2 Any notice shall be deemed to have been duly received:
(a) if delivered personally, when left at the address and for the contact referred to in this clause;
(b) if sent by pre-paid ordinary mail or, if the address is outside Australia, by pre-paid airmail, at 9.00 am on the second Business Day after posting; or
(c) if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed.
14. Governing law and jurisdiction