Standard terms and conditions of a software licence
As offered by Monika Pty Ltd trading as Monika (“Monika”) to its customers (each a “customer”)
These are the standard terms and conditions upon which Monika provides a Licence to its Customers to use its computer programs and software.
2.1 “these Conditions” means the standard terms and conditions set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between Monika and the Customer.
2.2 “the Software” means the computer programs comprising object code compiled from source code which has been developed by and remains the property of Monika and which operates in conjunction with a Postgres open source database platform provided under a PostgreSQL licence (conditions of which are set out at the end of these Conditions) known as ‘Monika PC’ and shall include all updates and additional or substitute programs and software provided by Monika pursuant to these Conditions.
2.3 “Software Media” means download media, diskettes and other media containing or reading any part of the Software.
2.4 “Customer Instructions” means the Customer’s Instructions for operating the Software.
2.5 “Permitted Computers” means any computer which is used by the Customer for the purposes of its business and any premises from which it operates.
2.6 “Commencement Date” means the date from which the software is activated.
2.7 “Software Activation Code” means the code provided by Monika along with the Software Media to activate the Software on the Customer’s Permitted Computers.
2.8 “Expiry Date” means the end date of the period of currency of the Software Activation Code.
2.9 “Annual Licence Fee” means the annual fee payable in advance to Monika by the Customer for use of the Software for which period a Software Activation Code will be provided.
3. Software Licence
3.1 The Software Media and the Software Instructions are supplied with the benefit of and on condition that the Customer shall accept a non-exclusive licence from Monika to the Customer to use the Software on the terms and conditions hereof and the said licence is hereby granted by Monika.
3.2 The Software may not be used by the Customer other than for the internal purposes of its business on the Permitted Computers. The Customer may not use or permit the use of the Software for the purpose of providing a computer bureau service or for any other purpose save as aforesaid.
4. Software Media
4.1 Risk for loss or damage to any physical Software Media shall pass to the Customer on delivery to the Customer.
4.2 The Customer shall not be entitled to have access to the source code in respect of the Software or to create or to attempt to create the same
4.3 Monika may from time to time and at any time require any Software supplied to the Customer to be replaced with alternative Software Media and shall from time to time provide the Customer with updates for the Software (if any) as soon as is practicable after such update becomes generally available to Monika’s clients; the Customer shall upon delivery of any such alternative Software Media or update adopt the same and either immediately destroy or as soon as practicably possible thereafter and at its own expense return to Monika or to its order all physical Software Media previously supplied to it which is replaced or superseded thereby.
5. Method of use
5.1 The Customer will ensure that all Software Media are correctly used in efficient and properly functioning machines or equipment and that any of its employees who have access to or the use of such machines or equipment are properly trained and authorised for this purpose.
6. Prohibition on adaptation or enhancement
6.1 The Customer shall not without the prior written consent of Monika use adapt make any enhancements or make additions to the Software or any Software Media or permit the use or adaptation of the same for the purpose of merging it into any other computer program or material, shall not make any copies of the Software Media and shall comply with all applicable laws or regulations relating to the Software, the Software Media or their use.
7. Rights in the Software and their protection
7.1 The Customer shall have no right to the property in the Software and Software Media or the Customer Instructions, or to the copyright or other intellectual property rights of Monika of whatever nature therein, acknowledges the confidentiality thereof and the title of Monika therein, and undertakes not to do or assist in the doing of anything which might bring Monika’s title into question.
7.2 Any adaptations developments of or improvements or additions to the Software or any Software Media which are made by the Customer in default of clause 6.2 of these Conditions shall be the absolute property of Monika and the Customer shall forthwith communicate the same to Monika which shall be entitled to use of same as it may in its absolute discretion think fit.
7.3 The Customer shall not at any time disclose to any person any information techniques or know-how concerning the Software or the Software Media or its use or any information contained in the Customer Instructions and shall take all practical steps to prevent the disclosure of any such information to any other person including the introduction and maintenance of procedures for the sale custody of the Software, all Software Media and the Customer Instructions supplied to the Customer;
7.4 The Customer will instruct each employee sub contractor supplier or other third party who is or may be required to deal with the Software, any Software Media or Customer Instructions that they are secret and confidential and are not to be disclosed to any third party; and
7.5 The Customer undertakes to indemnify Monika against all costs, claims damages and expenses (including legal expenses) incurred by Monika by reason of the disclosure of the Software, any Software Media or the Customer Instructions to third parties or of any other fact or omission which constitutes a breach of this clause; this clause shall not apply to information which is or becomes public knowledge through no fault of the Customer.
8. Infringement of rights
8.1 The Customer shall promptly and fully notify Monika of:-
8.1.1 any actual threatened or suspected infringement of the copyright or other intellectual rights of Monika in the Software, any Software Media or the Customer Instructions or of any breach of confidence relating thereto which comes to its notice; and
8.1.2 any claim brought against the Customer alleging that its use of the Software any Software Media or the Customer Instructions infringes the copyright or other intellectual rights belonging to or alleged to belong to the claimant.
8.2 If any such claim as is mentioned in clause 8.1.2 is brought against the Customer, Monika may at its option either;
8.2.1 require the Customer to cease using the material which allegedly infringes the rights of the claimant; or
8.2.2 require Monika to depend or settle the claim at the cost of and in accordance with the directions of Owner, in which case it will indemnify the Customer against all costs, damages or other compensation awarded against or agreed with the consent of Monika to be paid in settlement by the Customer subject to Monika being entitled to all costs, damages or other compensation awarded against or agreed to be paid in settlement by the claimant.
9. Maintenance of the Software
9.1 The Customer will at its own expense be responsible for routine day to day maintenance of the Software and all Softwares material in its possession.
9.2 The Customer shall promptly notify Monika of any material defect or error in the Software or the Software Media in its possession, whereupon Monika shall take all reasonable steps to correct the same by:
9.2.1 in the case of a defect or error which prevents the Software or Software Media from performing its fundamental function sending corrected Software Media to the Customer as soon as is practical.
9.2.1 in the case of a defect or error which causes only inconvenience to the use of the Software or Software Media incorporating a correction in the Software Media provided under the next scheduled release of the Software
10. Liability of Monika
10.1 Monika shall not be liable to the Customer:-
10.1.1 by reason of any representation or by reason of the breach of any implied warranty or other implied term or any duty at common law for any loss, damages, costs, expenses or other claim for compensation whatsoever howsoever the same may arise and whether occasioned by the negligence of Monika, its servants or users or otherwise to the extent that:-
10.1.1.1 any such claim is for consequential loss or damages whether for loss of profit or otherwise; or
10.1.1.2 in respect of any claim for consequential loss or damage, the amount of any such claim exceeds the price for the Software paid by the Customer.
10.2 Monika shall not be liable for the performance use or consequences of any changes to the Software or any Software Media which are made otherwise than by Monika and Monika shall have no obligation hereunder to correct, maintain or update any part of the Software or any Software Media which has been the subject of any such change.
10.3 Monika does not warrant that the Software or any Software Media will not infringe the copyright or other intellectual property rights of any other person.
11. Force majeure
11.1 Neither party shall be liable to the other party insofar as it is prevented from performing its obligations under these Conditions for any reason beyond its control including (but not limited to) war, civil disorder, strikes, lockouts or other industrial disputes and shortage of labour or materials.
12. Period of Licence and termination
12.1 The Software Licence shall commence on the Commencement Date and shall remain in force from year to year thereafter subject to payment of the Annual Licence Fee and unless terminated in accordance with any of the provisions this clause or any other clause in these Conditions.
12.2 On receipt of payment from the Customer of the Annual Licence Fee Monika will provide a new Software Activation Code.
12.3 Monika may forthwith terminate the Software Licence if payment of the Annual Licence Fee is not made prior to the Expiry Date in which case no new Software Activation Code will be provided and Customer access to the Software will denied automatically.
12.4 In addition to and without prejudice to any other remedy Monika may forthwith terminate the licence of which these Conditions form part at any time by giving to the Customer 30 days’ written notice if the Customer has committed any breach of the terms of this licence or if the Customer goes into liquidation or becomes insolvent or if a receiver, administrator or other similar officer is appointed in respect of the whole or any part of the undertaking and assets of the Customer or if being an individual the Customer commits an act of bankruptcy.
12.5 Upon termination of the licence the Customer shall return to Monika all Software Media and Customer Instructions (including copies thereof). In default Monika may enter upon the Customer’s premises and repossess the same.
13. Nature of licence
13.1 The licence of which these Conditions form part is personal to the Customer who shall not be entitled to mortgage, charge, directly or indirectly assign, delegate or transfer to any person or grant any form of sub-licence in respect of the benefit of the same.
14. Notices and service
14.1 All notices under these Conditions shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the party giving the notice.
14.2 Notices shall be deemed to have been duly given:
14.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
14.2.2 when sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated; or
14.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
14.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid.
in each case addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
15. Applicable Law and Jurisdiction
15.1 These Conditions shall be governed by, and construed in accordance with, Australian Law.
15.2 In relation to any legal action or proceedings to enforce these Conditions or arising out of or in connection with these Conditions (“proceedings”) each of the parties irrevocably submits to the exclusive jurisdiction of the Australian courts and waives any objection to proceedings in such courts on the grounds of venue or in the grounds that the proceedings have been brought in an inconvenient forum.
16. The PostgreSQL Licence
Copyright (c) 2011, GAMTOL LTD TRADING AS MONIKA (IN THE UNITED KINGDOM)
Permission to use, copy, modify, and distribute this software and its documentation for any purpose, without fee, and without a written agreement is hereby granted, provided that the above copyright notice and this paragraph and the following two paragraphs appear in all copies.
In no event shall Gamtol Ltd trading as Monika (in the United Kingdom) or Monika Pty Ltd trading as Monika (in Australia) be liable to any party for direct, indirect, special, incidental, or consequential damages, including lost profits, arising out of the use of this software and its documentation, even if Gamtol Ltd trading as Monika (in the United Kingdom) or Monika Pty Ltd trading as Monika (in Australia) has been advised of the possibility of such damage.
Gamtol Ltd trading as Monika (in the United Kingdom) or Monika Pty Ltd trading as Monika (in Australia) specifically disclaims any warranties, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. the software provided hereunder is on an “as is” basis, and Gamtol Ltd trading as Monika (in the United Kingdom) or Monika Pty Ltd trading as Monika (in Australia) has no obligations to provide maintenance, support, updates, enhancements, or modifications.