MY GARDEN PAL PTY LTD

CLICKWRAP LICENCE TERMS AND CONDITIONS

These are the terms on which My Garden Pal Pty Ltd ABN 49 126 285 023 (My Garden Pal), Level 1, 1 Queens Road, Melbourne, Victoria, 3004, Australia (the Licensor) licenses you (the Licensee) to use the software product titled "My Garden Pal Desktop" (the Software). By installing and using the Software you agree to the following terms and conditions. If you do not agree, you may NOT USE OR INSTALL the Software but may return it to the Licensor and obtain a refund of the licence fees paid in the month prior to receiving the Software.

  1. Grant of Licence
    1. Upon payment of the Licence Fee specified in clause 8, the Licensor grants to the Licensee a perpetual, non-exclusive, non-transferable revocable licence to use the Software (in executable code) as modified or updated from time to time by any patches or maintenance releases for the Licensee’s internal business purposes subject to the terms and conditions of this Agreement.
    2. In the event that the Licensor releases a new version of the Software, the Licensor will make available to the Licensee the new version and updated user documentation at a further cost to be notified by the Licensor to the Licensee at the time of release of that Software.
    3. The Licensee is entitled to install and use the Software on one personal computer only, for the sole purpose of processing information relating to plant data and gardening tasks.
    4. The Licensee must not, except to the extent permitted by any law that cannot be excluded by the parties, copy, modify, disassemble, decompile or reverse engineer the Software nor merge it with any other software nor directly or indirectly permit any third party to do any of the foregoing.
    5. It may not be possible to operate Software provided under this Agreement without an activation key which will be immediately supplied by the Licensor following the request of the Licensee.
    6. Where a demonstration version of the Software has been provided, for the shorter of a period of 30 days from first installation of the Software by the Licensee or trigger of the requested activation key (Demonstration Period), the Licensee may use the Software either without payment of the Licence Fee specified in clause 8 to the Licensor or payment of the Licence Fee but subject to refund within the Demonstration Period if the Software is not accepted by the Licensee, subject to the terms and conditions of this Agreement and the following:
      1. on expiry of the Demonstration Period:
        1. the Licensee must immediately pay the Licence Fee specified in clause 8 to the Licensor; or
        1. if the Licence Fee has been paid, it becomes non-refundable; or
      1. return the Software and user documentation (and all copies of them) to the Licensor (and where such Software and/or user documentation is incapable of return, the Licensee must permanently delete the Software and user documentation and provide a declaration to the Licensor that the Licensee has complied with this clause 1.6(b)) and this Agreement terminates.
    1. Software provided under clause 1.6 may cease operating on expiry of the Demonstration Period without an activation key supplied by the Licensor.
  1. Confidentiality
    1. The Licensee acknowledges that the ideas and expressions contained in the Software and any modifications or particulars of them that may be provided to the Licensee by the Licensor are confidential (except to the extent that they have entered the public domain other than through a breach of this Agreement by the Licensee). The Licensee undertakes not to disclose such confidential information to any person other than its agents and employees and then only to enable the Software to be used in accordance with and for the purposes of this Agreement. The Licensee undertakes to ensure that such persons maintain that confidentiality.
    2. The Licensee undertakes not to remove, delete or obscure any copyright notices or confidentiality notices on or in the Software.
  1. Intellectual property rights
    1. For the purposes of this Agreement, the term “Intellectual Property Rights” means all copyright, patents, registered and unregistered design rights, trademarks and service marks and applications for any of the foregoing, together with all trade secrets, know-how, rights to confidentiality and other intellectual and industrial property rights in all parts of the world.
    2. The Licensee acknowledges that it obtains no Intellectual Property Rights whatsoever in the Software or any associated documentation. As between the parties all Intellectual Property Rights vest in the Licensor.

    3 Infringement of Intellectual Property Rights

    3.1 If the Licensee becomes aware of any infringements or suspected infringements by any third party of any Intellectual Property Rights in the Software, it must immediately notify the Licensor and must at the request and expense of the Licensor take such action as the Licensor may reasonably deem appropriate to protect its Intellectual Property Rights.

    3.2 If the Licensee becomes aware of any actual or potential claim which may be made against the Licensor or the Licensee alleging that the Software infringes any third party's Intellectual Property Rights, it must immediately notify the Licensor of that claim.

    3.3 Subject to clauses 4.4, 4.5 and 4.6, the Licensor will indemnify the Licensee against liability arising out of any claim brought by a third party against the Licensee which determines that the Licensee’s use of the Software constitutes an infringement of any Intellectual Property Rights in Australia.

    3.4 In the event that proceedings are brought or threatened by a third party against the Licensee alleging that the Licensee’s use of the Software constitutes an infringement of Intellectual Property Rights in Australia, the Licensor or its nominee may at its option and at its own expense conduct the defence of such proceedings. The Licensee must provide all necessary co-operation, information and assistance to the Licensor in the conduct of the defence and/or settlement of such proceedings.

    3.5 The Licensor will not be required to indemnify the Licensee under clause 3.3 unless the Licensee:

      1. complies with clause 3.4; and
      2. permits the Licensor, at the Licensor's option and expense, to modify, alter or substitute the infringing part of the Software in order to avoid continuing infringement, or to procure for the Licensee the authority to continue the use and possession of the infringing Software.

    3.6 The Licensor will not indemnify the Licensee to the extent that an infringement, suspected infringement or alleged infringement arises from:

      1. use of the Software in breach of this Agreement or in a manner or for a purpose not reasonably contemplated or not authorised by the Licensor; or
      2. modification or alteration of the Software without the prior written consent of the Licensor.

    3.7 The Licensee will indemnify the Licensor against any loss, costs, expenses, demands or liability, whether direct or indirect, arising out of a claim by a third party alleging infringement if the claim arises from an event specified in clause 3.6, or if the Licensee has failed to comply with any requirements of clauses 3.4 or 3.5.

  1. Warranty
    1. The Software has not been written to meet the individual requirements of the Licensee and is supplied on an “as is” basis. A failure of any part or the whole of the Software to be suitable for the Licensee’s requirements will not give rise to any right or claim against the Licensor.
    2. The sole warranty given by the Licensor in connection with the Software is that the Software will perform substantially in accordance with the accompanying user documentation for a period of 30 days from the day of first installation of the Software.
    3. The Licensee’s sole remedy for any breach of the warranty contained in clause 5.2 is that the Licensor will, at its option, correct the identified defect in the Software or replace the Software with software of substantially similar functionality, to be determined by the Licensor. The Licensee must provide sufficient information about the defect to enable the Licensor to reproduce it in the Licensor’s systems.
    4. Nothing in this Agreement excludes, restricts or modifies any condition, warranty, right or remedy which is conferred on the Licensee by the Trade Practices Act 1974 (Cth) or any other consumer protection legislation that cannot be excluded by mutual agreement (the Acts). Where the Licensor breaches a condition or warranty which has been implied by the Acts, its liability for breach will be limited to (where permissible by the Acts):
      1. in the case of the supply of goods:
        1. replacement of the goods;
        2. supply of equivalent goods;
        3. repair of the goods; or
        4. payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; and
      2. in the case of the provision of services:
        1. the supplying of the services again; or
        2. payment of the cost of having the services supplied again;

    whichever the Licensor sees fit to provide.

  1. Liability
    1. Unless this Agreement expressly provides otherwise:
      1. to the maximum extent permitted by law, all express and implied conditions, warranties or liabilities (including liability as to negligence) regarding the condition, accuracy, suitability, quality or title to the Software are negated and excluded; and
      2. the Licensor gives no condition, warranty, undertaking or representation in relation to the condition, accuracy, suitability, quality of or title to the Software (including any data contained in or supplied in relation to it or reports generated or produced by or with the aid of any of them).
    2. The liability of the Licensor to the Licensee for all loss, damage, costs, expenses, claims, demands, actions and proceedings arising out of or in connection with this Agreement, whether arising under common law (including negligence) or under statute, will be limited to the following extent:
      1. Notwithstanding anything in this clause 5.2 or in any other provision of this Agreement, the Licensor will not be liable for any direct or indirect lost profit or revenue, exemplary damages, loss of goodwill, deletion or corruption of electronically or digitally stored information, or without limiting the foregoing, any indirect or consequential loss or damage howsoever described or claimed;
      2. The Licensor’s liability to the Licensee for any proven loss or damage suffered by the Licensee relating to death or personal injury or damage to any real property or chattels caused by an act or omission of the Licensor will be limited for an aggregate of all claims to $300; and
      3. Otherwise in respect to all other claims the Licensor’s liability to the Licensee for all other proven loss and damage is limited for an aggregate of all claims to the amounts paid by the Licensee to the Licensor in relation to the Licence Fee for the Software.
  2. Termination

    The Licensor may terminate this Agreement immediately by notice to the Licensee if the Licensee breaches this Agreement and fails to remedy the breach within 14 days of becoming aware of it. Upon termination of this Agreement, the Licensee must immediately cease to use the Software and return the Software and all user documentation (and all copies of either of them) to the Licensor (and where such Software and/or user documentation is incapable of return, the Licensee must permanently delete the Software and user documentation and provide a declaration to the Licensor that the Licensee has complied with this clause 7). This requirement is without prejudice to any other rights and remedies that the Licensor may have in respect of the breach.

  1. Payment

    8.1 The Licensee must pay the Licence Fee at the time of receipt of the Software from the Licensor.

  1. GST

    9.1 In this clause the expressions Consideration and GST have the meanings given to those expressions in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

    9.2 Unless otherwise expressly stated, all prices or other sums payable or Consideration to be provided under or in accordance with this Agreement are exclusive of GST.

  1. General
    1. This written Agreement constitutes the entire agreement between the parties relating to the subject matter of this Agreement and supersedes all prior communications and agreements between the parties as to its subject matter, and each party agrees that unless expressly stated in this Agreement, that party has not relied on any representation, warranty or undertaking of any kind in relation to the subject matter of this Agreement.
    2. If any provision of this Agreement or any part of it is unenforceable or void for any reason, then:
      1. where such provision can be read down so as to give it a valid and enforceable operation of a partial nature it must be read down to the extent necessary to achieve that result; and
      2. in any other case, such provision must be severed from this Agreement in which event the remaining provisions will continue in full force and effect as if the severed provision had not been included.
    3. The Licensee must not, without prior written consent of the Licensor assign, lease, charge, sub-license, or otherwise transfer any of its rights or obligations under this Agreement in whole or in part.
    4. Any notice given pursuant to this Agreement may be served personally or sent by pre-paid letter to the address of the relevant party given above. Such notice will be deemed to have been served upon and received by the addressee, when served personally at the time of such service, or when posted, 48 hours in the case of local mail and 10 days in the case of international mail, after the same has been put into the post correctly addressed and pre-paid.
    5. Money amounts are stated in Australian currency unless otherwise specified.
    6. Neither Party will be liable to the other for any delay or failure to perform its obligations under this Agreement as a result of a cause beyond its reasonable control (Force Majeure). If the Force Majeure continues for a period of more than 60 days, the party not affected by the Force Majeure may terminate this Agreement by written notice to the affected party.
    7. Any delay or forbearance by either party in enforcing any provisions of this Agreement or any of its rights hereunder will not be construed as a waiver of such provision or right to subsequently enforce the same.
    8. Clauses 2, 3, 4, 5, 6, 7, and 8 and this clause 10 survive termination of this Agreement and inure to the benefit of the relevant party.
    9. Clause headings have been included in this Agreement for convenience only and must not be considered part of, or be used in interpreting, this Agreement.
    10. This Agreement is governed by the laws of Victoria, Australia and the parties submit to the exclusive jurisdiction of the Courts of Victoria, Australia and the Commonwealth of Australia.

 

 

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