Darzin Software License Agreement

TERMS AND CONDITIONS
THE PARTIES AGREE:

1. LICENCE
1.1. The Licensor grants a non-exclusive licence to the Licensee to use the Work for the Term in the Territory for the Purpose excluding any right to sublicense or resell the Work.
1.2. The Licensee may assign the Licence with the prior written consent of the Licensor.
1.3. The Licensee may sub-license the Licence with written consent of the Licensor.
1.4. The Parties agree that this Agreement will continue for the Term or until otherwise terminated by the parties.

2. LICENCE FEE
2.1. The Licensee agrees to pay the License Fee including: a) Onboarding Fee upon execution of this Agreement; and B) Ongoing License Fee at an agreed time intervals as stated in the Contract Specifics.
2.2. All amounts in this clause (Fees) are exclusive of GST, VAT or any government tax.
2.3. The Licensee is responsible for paying any government tax, duty or impost relating to the grant of this Licence including any fee to record the Licence.
2.4. The Licensee must pay the invoice issue against them by the Licensor within 14 days after receipt. The Licensee acknowledges and agrees that the Licensor may add debt recovery costs including legal expenses, debt collector fees and/or court costs to any invoice outstanding for greater than 30 days to the outstanding debt.

3. INTELLECTUAL PROPERTY
3.1. The Licensee acknowledges that the Licensor has a worldwide licence granted by the absolute inventor, author, and owner of the Work and the related intellectual properties including, but not limited to, all copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, computer codes, audio-visual effects, themes, characters, character names, stories, dialog, settings, artwork, sound effects, musical works, and moral rights whether registered or not and all applications thereof, and agrees not to challenge, misrepresent, or in any way undermine the IP rights of the Licensor.
3.2. All of Content (meaning all data, images, text, posts, videos or recordings) supplied to and stored within the Work in its function as a database by the Licensee, is the sole property of the Licensee and there is no assignment of Content to the Licensor.
3.3. The Licensee shall not be copy, reproduce or distribute in any manner or medium, in whole or in part, of the Work without prior written consent from Licensee.
3.4. The Licensee must not alter, remove or obscure any copyright or trade mark symbol or legend or other proprietary mark on the Work.
3.5. The Licensee will not make improvement, modification, translation, or derivative to the Work, any part thereof, excluding the input or upload of Content. Should there be any unauthorised improvement, modification, translation, or derivative of the Work, the ownership of the resulted items, products, and intellectual property shall be vested in the Licensor.
3.6. The Licensee shall not in any way reverse engineer, decompile, disassemble, scrape, build databases or otherwise create permanent copies of content of the Work.
3.7. No title or ownership in the Work is being transferred or assigned and this Agreement is not to be construed as a sale of any rights in the Work.
3.8. The Licensee hereby expressly grants to Licensor a royalty free, non-exclusive, non-transferable, non-sublicensable, worldwide license to use, copy, and distribute the data, images, and / or files in any manner for the purpose of providing the services to the Licensee or as part of the Work.
3.9. The Licensee warrants that to the best of its knowledge all the data, images, and / or files uploaded to the Licensor systems or servers will not breach any law.
3.10. The Licensee grants permission to the Licensor to remove or delete any data, images, and / or files that contain inappropriate content. Inappropriate content include any content that the Licensor deems inappropriate at its sole discretion, but not limited to: (i) sexually explicit materials; (ii) obscene, defamatory, libellous, slanderous, violent and/or unlawful content or profanity; (iii) content that infringes upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary right, or that is deceptive or fraudulent; (iv) content that promotes the use or sale of illegal or regulated substances, tobacco products, ammunition and/or firearms; and (v) gambling, including without limitation, any online casino, sports books, bingo or poker.
3.11. The Licensee acknowledges and agree that the Licensor may grant access the Licensee’s information, data, images, and / or files in order to comply legal request issued by any governmental institutions or organisations. The Licensor will use reasonable endeavours to notify the Licensee of any such request and to protect and/or limit disclosure of any of the Licensee’s confidential, commercially sensitive or proprietary information.

4. CONFIDENTIAL INFORMATION
4.1. Each party undertakes not to use or disclose to any other person or entity any of the other party’s Confidential Information and will only use such Confidential Information in good faith and for the proper purposes of this Agreement and subject to any restrictions imposed by the party that provides the Confidential Information. This clause survives the end or termination of this Agreement.
4.2. Notwithstanding Clause 4.1, a party may disclose information if and to the extent that such disclosure is required by law or court order.
4.3. By installing, accessing or using the Work, the Licensee consents to these information collection and usage terms, [including (where applicable) the transfer of data into a country outside of Australia, the European Union and/or the European Economic Area.
4.4. Licensor may collect and use information about the Client’s usage of the Software, including certain types of information from and about the Client’s device. Licensor may use this information, as long as it is in a form that does not personally identify information for direct marketing purposes or to contact the Client, to measure the use and performance of the Software.
4.5. Licensor respects the Client’s privacy rights and recognizes the importance of protecting any information collected about the Client. By installing, accessing or using services of the Licensor, the Licensee agrees to Darzin’s Privacy Policy.

5. LICENSOR OBLIGATIONS, REPRESENTATIONS AND WARRANTIES
5.1. The Licensor represents and warrants that it has the right to license the Work to the Licensee.
5.2. The Licensor gives the Licensee the right to use, for the Purpose of this Agreement, part of the Work as it is.
5.3. The Licensor may include measures to: control access of the Work, prevent unauthorized copies, or prevent anyone from exceeding the limited rights and licenses granted under this Agreement.
5.4. The Licensor may provide support, updates, or patches only to the user who has a valid licence to use the Work.
5.5. The Licensor will endeavour to maintain the integrity of the Licensee’s Content. However, it is the Licensee’s responsibility to download the Licensee’s data, images, and / or files, and make backup thereof.
5.6. The Licensor is not obliged to maintain and keep any of the Licensee’s Content if the Licensee is in arrears of the any subscription or royalty fee, have the account suspended, or cancelled, provided however that prior to deletion of any of the Licensee’s data, images and / or files. Licensor will use reasonable endeavour to notify the Licensee of its intention to delete the Licensee’s data or files and provide the Licensee with an opportunity to make a final backup. Once the subscription is terminated and subject to the notification obligation set out above, the Licensor can remove the Client’s data, images, and / or files on the Licensor system. There will be a service charge for requesting the Licensor to retrieve any of the Client’s data, images, and / or files, and the retrieval is not guaranteed.
5.7. The Work are provided to the Licensee “as is,” with all faults, without warranty of any kind except as expressly provided under this Agreement, without performance assurances or guarantees of any kind, and the Licensee’s use is at the Licensee’s sole risk. The Licensor agrees will use reasonable endeavours to fix and correct reported issues or bugs with the Work.
5.8. To the fullest extent permissible under applicable law, Licensor, its staff or contactors, and its suppliers or partners do not make, and hereby disclaim, any and all express, implied or statutory warranties, including implied warranties of condition, uninterrupted use, accuracy of data and information presented (including but not limited to location data), merchantability, satisfactory quality, fitness for a particular purpose, non-infringement of third party rights, and warranties (if any) arising from a course of dealing, usage, or trade practice.
5.9. To the fullest extent permissible under applicable law, Licensor, do not warrant against interference with the Licensee’s enjoyment of the Work; that the Work will meet the Licensee’s requirements; that operation of the Work will be uninterrupted or error-free, or that the Work will interoperate or be compatible with any software or hardware, or that any errors or bugs in the Work will be corrected. No oral or written advice provided by Licensor shall create such a warranty. Some jurisdictions do not allow the exclusion of or limitations on implied warranties or the limitations on the applicable statutory rights of a consumer, so some or all of the above exclusions and limitations apply only to the fullest extent permitted by law in the applicable jurisdiction. The Licensor does not provide any warranty for any goods or services of a third party ordered through the Licensor’s system or website.
5.10. The Licensor may provide to the Licensee reasonable help desk assistance regarding the implementation of the Work as agreed between the parties under this agreement, and the identification, diagnosis and correction of errors or bugs.
5.11. The Licensor may make reasonable efforts to correct and resolve errors or bugs that are reported to the Licensor and which the Licensor are able to verified and rectified.
5.12. All data hosting and storage pursuant to this Agreement is subject to hosting agreements with third party for virtual hosted servers. The parties agree that all quoted uptimes of the servers with relevant data are quoted as estimates only and that not guaranteed uptimes and are subject to variations and downtime of the third-party hosting supplier.

6.  LICENSEE OBLIGATIONS, WARRANTIES & ACKNOWLEDGEMENTS
6.1. The Licensee may use the Work during the Term for the Purpose. This is an essential term which survives the end or termination of this Agreement.
6.2. The Licensee is not permitted to charge, mortgage or otherwise encumber the Work in any way.
6.3. During the Term, the Licensee undertakes to promptly advise the Author of any legal proceedings, threat of legal proceedings or claim which may involve the Work.
6.4. In the event of a matter arising as contemplated in Clause 6.3, if requested by the Licensor the Licensee undertakes to keep the Licensor fully informed of the progress of any such proceeding or claim. In relation to any proposed settlement of such proceeding or claim, the Licensee must take into account and adhere to the views of the Licensor.
6.5. In the event of a matter arising as contemplated in Clause 6.3, at the Licensor’s request the Licensee will provide the Licensor with copies of any and all documents and materials including legal advice relating to such proceeding or claim.
6.6. The Licensee warrants that it has not relied upon any representation made by the Licensor other than as set out in this Agreement.
6.7. The Licensee shall:
(i) not license or assign the Work or any part thereof, to unauthorised third parties without the express prior written consent of the Licensee.
(ii) Not make a copy of the Work or any part thereof, except for backup purposes;
The Licensee warrants that such use of the Work by that user does not violate any applicable law or regulation.
6.8. The Licensee will promptly provide to the Licensor all information requested by the Licensor to reproduce such errors or bugs reported by the Licensee. For each such error, the Licensor will use reasonable efforts to provide the Licensee with a workaround solution, a software patch if possible. If the Licensor is unable to provide to the Licensee with either of the foregoing, a specific action plan for addressing the error or bug, including a good faith estimate of the time required to correct and resolve such error or bug.
6.9. The Licensee must not interfere, disable, or circumvent any access control measures or security features of the Work.
6.10. The Licensee will provide suitable internet connection and hardware in order for the Work to operate properly. To this end, the Licensee may be required to have and maintain
(a) an adequate internet connection and/or
(b) a valid and active account with an online service.
By using the Work, the Licensee acknowledges and agrees that third party data transfer fees may apply depending on the Client’s data plan (for example: internet connection charges charged by your internet provider). Please consult your own network carrier for further information. If you do not maintain such accounts, then the Work or certain features of the Work may not operate or may cease to function properly, either in whole or in part.

7. LIMITATION OF LIABILITY
7.1. To the extent that any liability of the Licensee cannot be excluded, the Licensee’s liability is limited to the value of the Licence Fee of one term.
7.2. The Licensor will use reasonable endeavour to take due care in ensuring that the Work, and our system are free of any virus, worm, Trojan horse and/or malware, however the Licensor is not responsible for any damage to the Licensee or third party computer system which arises in connection with the use of the Work or any third party linked therefrom.
7.3. In no event will the Licensor be liable for special, incidental or consequential damages resulting from possession, access, use, malfunction of, and relying upon the Work and information, including but not limited to, damages to property, loss of goodwill, computer failure or malfunction and, to the extent permitted by law, damages for personal injuries, property damage, lost profits or punitive damages from any causes of action arising out of or related to this Agreement or the Work, whether arising in tort (including negligence), contract, strict liability or otherwise and whether or not Licensor have been advised of the possibility of such damages.
7.4. Because some states/countries do not allow certain limitations of liability, this limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction but does not exclude any liability for death or personal injury caused by its negligence. This limitation of liability shall not be applicable solely to the extent that any specific provision of this limitation of liability is prohibited by any federal, state, or municipal law, which cannot be pre-empted. The Agreement gives the Client specific legal rights, and the Client may have other rights that vary from jurisdiction to jurisdiction.
7.5. The Licensee acknowledges and agrees to release of any third party such as the platform provider such as Facebook, Google, Apple, Internet Service Provider from all liability regarding such events and acknowledgement that the promotion is in no way sponsored, endorsed, administered by or associated with the third party such as the platform provider such as Facebook, Google, Apple, Internet Service Provider when the Work include a software application downloaded from such platform.
7.6. The Licensor, not Marketplaces nor App Store, is responsible for addressing any claims by the Licensee relating to the Work or use of it, including, but not limited to: (i) any product liability claim;
(ii) any claim that the Work fails to conform to any applicable legal or regulatory requirement; and (iii) any claim arising under consumer protection or similar legislation for Work only. Nothing in this Agreement shall be deemed an admission that the Licensee may have such claims.

8. INDEMNITY
8.1. The Licensee acknowledges that it will not rely upon the Licensor’s information or participate in any activities found from any of the Licensor’s software or website that will or will not cause any harm or injury to the Licensee or any other person.
8.2. The Licensee indemnifies and holds harmless the Licensor and promises to keep the Licensor indemnified against any loss, claim, action, settlement, award, judgment, expense or damage of whatsoever kind or nature and howsoever arising that the Licensor might suffer as a result of any use of the Work including any unauthorised use of the Work by the Licensee.
8.3. The Licensor indemnifies and holds harmless the Licensee and agrees to keep the Licensee indemnified against any loss, claim, action, settlement, award, judgement, expense or damage of whatsoever kind or nature and howsoever wherein the Licensee is reasonably likely to suffer as a result of any claim on Intellectual Property infringement or any other tortious action against the use of the Work.

9. TERMINATION
9.1. Either party may terminate this Agreement immediately by Notice if:
(a) the other party breaches a term of this Agreement and fails to remedy such breach within 5 business days of being notified of such breach;
(b) the other party becomes subject to external administration or being a natural person becomes bankrupt or dies;
(c) the Licensee ceases or notifies of its intention to cease trading as a business.
9.2. If Notice is given under Clause 9.1, the Licensee will immediately cease using the Work and if requested by the Licensor will promptly return the Work including any copies and/or derivative materials to the Licensor.
9.3. The Licensee may serve 30 business days’ notice of termination on the other party without in any way affecting rights accrued under this Agreement.
9.4. Following termination, the parties agree that the provisions in Clause 7 (Limitation of Liability) and Clause 8 (Indemnity) will continue to be binding.
9.5. This Agreement terminates immediately when the Licensee attempts to circumvent any technical protection measures used in connection with the Software and/or Services.

10. NOTICES
10.1. Any Notice given pursuant to this Agreement must be signed by an officer of the sender, addressed to the recipient at the address, facsimile number or email address set out in Parties’ details with authorised receipt; if posted, then four (4) business days after date of posting; if faxed, upon successful transmission record; and if by email, by return email to the sender informing receipt of the email.

11. DISPUTE RESOLUTION
11.1. In the event of a dispute arising between the parties in respect of any right or obligation under this Licence, each party covenants with the other in good faith to take all steps necessary to attempt to resolve the dispute.
11.2. In the event that the parties are unable between themselves to resolve a dispute within a reasonable period having regard to the nature of the Licence and the dispute, then either party may apply to their local State/Territory Alternative Dispute Resolution centre for resolution of the dispute.

GENERAL PROVISIONS
11.3. (Law and Jurisdiction) This Agreement shall be governed by and construed in accordance with the laws of Australia, and the parties submit to the exclusive jurisdiction of the Australian courts.
11.4. (Relationship) Nothing in this Agreement will constitute or be deemed to constitute a partnership, joint venture or agency between the parties.
11.5. (Entire Agreement) The terms of this Agreement constitute the entire terms of this Agreement and all understandings, prior representations, arrangements or commitments that are not contained in this Agreement have no effect whatsoever and do not bind the parties.
11.6. (Invalidity) If any provision of this Agreement is invalid under any law the provision will be limited, narrowed, construed or altered as necessary to render it valid, but only to the extent necessary to achieve such validity. If necessary, the invalid provision will be deleted from the Agreement and the remaining provisions will remain in full force and effect.
11.7. (Waiver) No waiver of any right or remedy will be effective unless in writing and shall not operate as a waiver of that right or remedy or any other right or remedy on a future occasion.
11.8. (Implied Terms) Any implied term under law that can be excluded is expressly excluded and no
term is to be implied as being a term of this Agreement unless by law it cannot be excluded.
11.9. (Counterparts) This Agreement may be executed in counterparts, each of which will be deemed to be an original and all of which together will constitute one instrument and Agreement provided that those counterparts have been exchanged.
11.10. (Advice) Each party acknowledges and represents to each other that it has had the opportunity to seek and obtain separate and independent legal advice before entering into this Agreement. If either party has entered this Agreement without first taking legal advice it has done so at its sole and absolute discretion and it will not be entitled to rely upon the absence of legal advice as a defence to any breach of any of the provisions of this Agreement.