This licence agreement is a legal agreement between you (Customer) and 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) for this software product, which includes computer software, the data supplied with it, the associated media, printed materials and documentation (Licence).
1.1 The definitions and rules of interpretation in this clause apply in this Licence.
Acceptance Date: the date on which the Supplier grants the Customer access to the Software as set out in clause 4.2.
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 under a relevant Law.
Fee: the licence fee payable by the Customer to the Suncorp Affiliate under clause 4, if any.
Initial Term: has the meaning set out in clause 2.2.
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.
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 SUNCORP specifying the licences that the Customer wishes to purchase.
Renewal Term: has the meaning set out in clause 2.2.
SUNCORP: means Suncorp Corporate Services Pty Limited ACN 074966466 whose registered address is at Level 28, 266 George Street, Brisbane, QLD 4000, Australia
Site: the premises from which the Customer carries out its business as described in the Order Form or otherwise as agreed by the Supplier in writing from time to time.
Software: means escribe and any other computer programs listed in the Order Form (including any Modification) which is acquired by the Customer during the subsistence of this licence.
Suncorp Affiliate: means AAI Limited ABN 48 005 297 807 trading as ‘Thatcham escribe’.
1.2 The headings in this licence do not affect its interpretation. Except where the context otherwise requires, references to clauses and schedules are to clauses and schedules of this licence.
1.3 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;
1.4 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
2.1 By submitting an Order Form, downloading, installing, accessing or using the Software the Customer agrees to be bound by the terms and conditions of this Licence, which may be updated from time to time. If the Customer does not wish to accept these terms and conditions, the Customer must not access or use the Software.
2.2 The Supplier grants to the Customer a non-exclusive licence on a subscription basis for a twelve-month period commencing on the Acceptance Date (Initial Term). The Customer may renew the licence for additional twelve-month subscription periods, each commencing on the anniversary of the Acceptance Date (Renewal Term), by completing a renewal order form, accepting any renewal offer that the Supplier may provide in response and by paying the Fee prior to the commencement of the applicable Renewal Term.
2.3 In relation to scope of use:
(a) for the purposes of clause 2.2, 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);
(b) the Customer may not use the Software other than as specified in clause 2.2 and clause 2.3(a) without the prior written consent of the Supplier, and the Customer acknowledges that additional fees may be payable on any change of use approved by the Supplier; and
(c) except as expressly stated in this clause 2, the Customer has 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.
2.4 The Customer may 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 the Software.
2.5 The Customer shall not:
(a) sub-license, assign or novate the benefit or burden of this licence in whole or in part; nor
(b) allow the Software to become the subject of any charge, lien or encumbrance,
without the prior written consent of the Supplier, such consent not to be unreasonably withheld or delayed.
2.6 The Supplier may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this licence, provided it gives written notice to the Customer.
2.7 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
2.8 The Customer shall:
(a) ensure that the number of persons using the Software does not exceed the number of user licences purchased by the Customer;
(b) ensure that the Software is only accessed on designated equipment at the Site or on portable equipment which is allocated only to individuals whole are 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 the Customer's copying and disclosure of the Software and its users, and produce such record to the Supplier on request from time to time;
(e) notify the Supplier as soon as it becomes aware of any unauthorized use of the Software by any person;
(f) pay, for broadening the scope of the licences granted under this licence to cover the unauthorized use, an amount equal to the fees which SUNCORP or the Suncorp Affiliate would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced; and
(g) ensure that the Software is only used by trained professionals in the motor repair and insurance industries.
2.9 The Customer shall permit the Supplier or its agent to inspect and have access to any premises (and to the computer equipment located there) at or on which the Software is being kept or used, and have access to any records kept in connection with this licence, for the purposes of ensuring that the Customer is complying with the terms of this licence, provided that the Supplier provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times.
2.10 The Supplier reserves the right to suspend the Customer’s access to the Software on becoming aware of any legal regulation, claim, or restriction which requires it to do so or which may expose it to any liability or claim if it does not do so. In this situation, the Supplier shall inform the Customer in writing of such suspension of the Customer’s access. If such suspension continues for more than 60 days, the Customer shall be entitled to terminate this Agreement forthwith by notice in writing to the Supplier. The Supplier shall, in the event of termination under this Clause 2.10 and provided the Customer is not at fault, without prejudice to any of the Customer’s other rights and remedies arising under this Agreement direct SUNCORP to refund to the Customer any Fees paid (if any) on a pro-rata basis from the date on which the Software access is suspended up to and including the date on which termination of this Agreement takes effect or the Software access recommences (as the case may be).
2.11 The Customer 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 the Customer will destroy or delete all such extracts no later than 6 months after they were downloaded from the Software. The Customer may not otherwise copy, alter, vary or modify or transfer use of the Software to any third party.
2.12 The Customer shall promptly notify SUNCORP and the Supplier in the event that it becomes aware of any actual or suspected infringement of any of the Supplier’s Intellectual Property Rights.
2.13 The Supplier may collect 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.
2.14 The following services within Software are subject to a fair usage policy (“Usage Policy”) whereby the Customer’s usage of the Software should not exceed 1000 repair specifications and Vehicle lookups per 6 months per Site.
2.15 If the Customer exceeds 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; or
(c) terminate this Agreement with immediate effect.
2.16 The Supplier will retain repair specifications produced by the Customer’s usage of the Software for a maximum period of 6 months from the last update of the repair specification.
3. Maintenance releases
The Supplier, SUNCORP or their authorised representatives will provide the Customer with all Modifications generally made available to its customers.
4.1 The Suncorp Affiliate will issue a tax invoice to the Customer for the licence fees applicable for the:
(a) Initial Term following receipt of an Order Form from the Customer; and
(b Renewal Terms (if any), following receipt of a renewal order form from the customer.
4.2 The Customer shall pay to the Suncorp Affiliate the licence fees as specified by the Supplier in the tax invoice sent to the Customer by Suncorp Affiliate.
4.3 The Supplier will grant the Customer access to the Software:
(a) in respect of the Initial Term, on payment of the licence fee as specified in the tax invoice issued in accordance with clause 4.2;
(b) in respect of any Renewal Term, on the anniversary of the applicable Acceptance Date provided that payment of the licence fee as specified in the tax invoice issued in accordance with clause 4.2 is received by the Suncorp Affiliate prior to the commencement of the applicable Renewal Term.
4.4 All sums payable under this licence are exclusive of any applicable goods or services or any other relevant local sales taxes or withholding tax, for which the Customer shall be responsible.
4.5 If the Customer fails to make any payment due to SUNCORP or the Suncorp Affiliate under this agreement, then the Supplier will not grant access to the Software.
5. Confidentiality and publicity
5.1 Each party shall, during the term of this licence and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this licence) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any Law or any legal or regulatory authority or in the case of the Supplier, disclosure to SUNCORP) any, information of a confidential nature (including, without limitation, trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this licence, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
5.2 The terms of this licence are confidential and may not be disclosed by the Customer without the prior written consent of the Supplier.
6.1 Neither party shall export, directly or indirectly, any technical data acquired from the other party under this agreement (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations (Export Control Laws), including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.
7 Exclusion of warranties
7.1 To the fullest extent permitted by Law, but subject to clause 7.2, the Supplier, SUNCORP 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.
7.2 The Customer 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.
7.3 The Supplier does not warrant that the use of the Software will be uninterrupted or error-free.
7.4 The Customer accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed to meet the individual requirements of the Customer. The Customer must in all circumstances ensure that any information, process, procedure or specification which is to be used or followed by the Customer, and which has been derived or drawn from the Software, is wholly appropriate for the intended purpose given all of the circumstances.
8. Limits of liability
8.1 Subject to clause 7.2 and to the maximum extent permitted by Law, the Supplier, SUNCORP, the Suncorp Affiliate 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 the Customer 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. The Customer 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, SUNCORP, the Suncorp Affiliate and their respective affiliates, directors, officers, employees, contractors and agents, including under the Contracts (Privity) Act 1982 (New Zealand).
8.2 The Customer indemnifies and holds the Supplier, SUNCORP, the Suncorp Affiliate 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 the Customer’s use of the Software.
9. Intellectual property rights
9. The Customer acknowledges that all Intellectual Property Rights in the Software and any Modifications belong and shall belong to the Supplier, and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of this licence.
9.2 If any third party brings a claim or action against 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 an intention to make a Claim against the Customer, the Customer 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 the power or control of the Customer, 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 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.
9.3 If any Claim is made, or in the Supplier's reasonable opinion is likely to be made, against the Customer, the Supplier may at its sole option and expense:
(a) procure for the Customer the right to continue using, developing, modifying or maintaining the Software (or any part thereof) in accordance with the terms of this licence;
(b) modify the Software so that it ceases to be infringing;
(c) replace the Software with non-infringing software; or
(d) terminate this licence immediately by notice in writing to the Customer and direct SUNCORP to refund any of the Fee paid by the Customer 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.
9.4 This clause 9 constitutes the Customer's exclusive remedy and the Supplier's only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 8.1.
10. Duration and termination
10.1 Without prejudice to any rights that have accrued under this agreement or any of its rights or remedies, either party may at any time terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party is in default of any payment due under this agreement and remains in default not less than 14 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any term of this agreement (other than failure to pay any amounts due under this agreement) and (if such breach is remediable) fails to remedy that breach within a period of 60 days after being notified to do so;
(c) the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
(d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts;
(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
(h) a floating charge holder over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) the other party (being an individual) is the subject of a bankruptcy petition or order;
(k) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(l) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.1(d)to clause 10.1(j)(inclusive); or
(m) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
10.2 Termination by either party in accordance with the rights contained in this clause 10 shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.
10.3 On termination for any reason:
(a) all rights granted to the Customer under this licence shall cease;
(b) the Customer shall cease all activities authorised by this licence;
(c) the Customer shall immediately pay to the Supplier any sums due to the Supplier under this licence; and
(d) the Customer shall immediately destroy or return to the Supplier (at the Supplier's option) all copies of the Software then in its possession, custody or control (including any extracts from the Software printed, copied or exported in accordance with clause 2.11) and, in the case of destruction, certify to the Supplier that it has done so.
10.4 Any provision of this agreement which expressly or by implication is intended to come into or continue in force on or after termination of this agreement shall remain in full force and effect.
No failure or delay by a party to exercise any right or remedy provided under this agreement or by Law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by Law.
13. Entire agreement
13.1 This licence, and any the schedules or documents annexed as appendices to this licence or otherwise referred to herein and the Order Form contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
13.2 Each party acknowledges that, in entering into this licence and the documents annexed to it, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this licence or not) (Representation) other than as expressly set out in this licence or those documents.
13.3 Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract.
14.1 If any court or competent authority finds that any provision of this agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this agreement shall not be affected.
14.2 If any invalid, unenforceable or illegal provision of this agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
15. No partnership or agency
Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
16. Force majeure
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, and in such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations.
17.1 Any notice required to be given under this agreement shall be in writing and shall be delivered personally, or sent by pre-paid first-class post or recorded delivery or by commercial courier, to each party required to receive the notice at their registered address or as otherwise specified by the relevant party by notice in writing to each other party.
17.2 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.
18. Governing law and jurisdiction
18.1 This agreement and any Dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of New South Wales, Australia.
18.2 The parties irrevocably agree that the courts of New South Wales, Australia shall have non-exclusive jurisdiction to settle any Dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).