Darzin Software License Agreement
This Darzin Software License Agreement (“Agreement”) is between the Client and Darzin Software Pty Ltd (ABN 95 010 692 154) of Suite 802, Level 8 Tower A, Zenith Towers, 821 Pacific Highway, Chatswood, NSW, 2067 Australia (“Darzin”). “Client” means the entity that executed a purchase agreement to use or access a Darzin Software licensed product. The “Effective Date” of this Agreement is the date which is the earlier of (a) Client’s initial access to or use of the Software or (b) the effective date of the Client’s first Order referencing this Agreement.
By accepting a Darzin Software Solution Proposal, or by using or accessing the Software, Client indicates their assent to be bound by this Agreement. If Client does not agree to this Agreement, they shall not use or access the Software.
“Software” means the Darzin apps and website products including Updates and Upgrades as well as accompanying manual(s), packaging and other written, files, electronic or on-line materials or documentation, and any and all copies of such software and its materials.
“Services” means all services made available by Darzin, including but not limited to services accessed through mobile applications, by means of a browser, by other online communication method, and such Services detailed within Schedule 1 – Service Levels.
Software and Services are collectively referred to as “Darzin Services”.
“Darzin Security Overview” means the Darzin document which details the Darzin security approach for the Software and Services, namely ‘Simply Stakeholders Security Approach v1.9’.
“Confidential Information” means in relation to a party to the Contract or any Order, information relating to the party’s business, computer systems or affairs and includes any trade secrets, know-how, scientific and technical information, product, customer, marketing or pricing information, information in relation to the Contract or any Order and any other information which the party notifies the other is confidential, or which the other party knows or ought to know is confidential.
“Upgrade” means, as it relates to Software, any change or addition to or enhancement of the functionality to software as made available by Darzin.
“Update” means, as it relates to Software, defect fixes, build updates and software enhancements to the Software as made available by Darzin.
“Order” means the document titled “Purchase Order”, “Service Order” or other similar document for the same purpose issued by the Client ordering the Software or Services pursuant to this Agreement.
“Minor Enhancement” means any minor release, update, modification or “bug fix” which does not necessarily provide materially new functionality, as determined by Darzin in its reasonable discretion.
“Major Enhancement” means any major release, major functional revision which contains new features or substantially changed functions from those contained in the previous software version as determined by Darzin in its reasonable discretion.
“Error” means, as it relates to Software, a reproducible defect or combination thereof in the Software that results in a failure of the Software when used in accordance with the Agreement.
SOFTWARE LICENSE. Subject to this Agreement and its terms and conditions, Darzin hereby grants the Client a non-exclusive, non-transferable, non-sublicensable, limited right and license to use software, in accordance with this Software Agreement. The rights granted herein are subject to the Client’s compliance with this Agreement. The Software is being licensed to the Client and the Client hereby acknowledges that no title or ownership in the Software is being transferred or assigned and this Agreement is not to be construed as a sale of any rights in the Software.
SERVICE LICENSE. Subject to this Agreement and its terms and conditions, Darzin hereby grants the Client a non-exclusive, non-transferable, non-sublicensable, limited right and license to use the Services as provided by Darzin, for the Client’s personal non-commercial use, in the manner permitted by this Agreement. The rights granted herein are subject to the Client’s compliance with this Agreement.
For purposes of this Agreement, the term ‘non-commercial use’ means uses including but not limited to uses of the software wherein the Client have not derived a profit or personal monetary compensation for the specified use.
LICENSE TERM. The term of this License under this Agreement shall commence on the date that the Client accepts the Quotation under this Agreement via issuance of an Order and installs or otherwise uses the Software and/or Services and ends on the earlier date of either the Client’s disposal of the Software and/or Services or termination of this Agreement. This license terminates immediately if the Client attempts to circumvent any technical protection measures used in connection with the Software and/or Services or the Client otherwise uses the Software and/or Services in breach of the terms of this Agreement.
OWNERSHIP; NO OTHER LICENSES. Darzin retains all right, title and interest in and to the Darzin Services, including, but not limited to, all copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, computer codes, audiovisual effects, themes, characters, character names, stories, dialog, settings, artwork, sound effects, musical works, and moral rights whether registered or not and all applications thereof. Darzin Services are protected by applicable laws and treaties throughout the world. Unless expressly authorized by mandatory legislation, the Darzin Services may not be copied, reproduced or distributed in any manner or medium, in whole or in part, without prior written consent from Darzin. All rights not expressly granted to the Client herein are reserved by Darzin.
2. Third party services
Darzin Services may include links to third party services and/or the third-party services may be made available to the Client via Darzin Services. These services may include, but are not limited to, storing and analysing data records, making payment, and the like. These services are subject to respective third-party terms and conditions.
3. General license conditions
The Client agrees not to: (i) distribute, lease, license, sell, rent, lend, convey or otherwise transfer or assign the Darzin Services, any copies thereof, or any passwords or usernames of Darzin Services, without the express prior written consent of Darzin or as set forth in this Agreement; (ii) make a copy of the Darzin Services or any part thereof, including but not limited to Software (other than as set forth herein); (iii) make the Darzin Services publicly available or available on a network for use or download by multiple users; (iv) except as otherwise specifically provided by the Darzin Services or this Agreement, use or install the Darzin Services (or permit others to do same) on a network, for on-line use, or on more than one mobile device, or computer at the same time; (v) use or copy the Darzin Services at any location-based site; (vi) reverse engineer, decompile, disassemble, translate, prepare derivative works based on or otherwise modify the Darzin Services, in whole or in part; (vii) remove, obscure or modify any copyright, trademark or other proprietary rights notices, marks or labels contained on or within the Darzin Services, falsify or delete any author attributions, legal notices or other labels of the origin or source of the material; (viii) misrepresent the source of ownership of the Darzin Services; (ix) transport, export or re-export (directly or indirectly) into any country forbidden to receive such Darzin Services by any export laws or accompanying regulations or otherwise violate such laws or regulations, that may be amended from time to time; or
(x) scrape, build databases or otherwise create permanent copies of content returned from the Darzin Services.
The Darzin Services may include measures to control access to the Darzin Services, prevent unauthorized copies, or otherwise attempt to prevent anyone from exceeding the limited rights and licenses granted under this Agreement. Only Darzin Services subject to a valid license can be used to access online services, and download updates and patches. The Client may not interfere with such access control measures or attempt to disable or circumvent such security features. If the Client disables or otherwise tampers with the technical protection measures, the Darzin Services will not function properly.
Darzin Services may require an internet connection to access the Darzin Services or its internet-based features, authenticate the Software, or perform other functions. In order for certain features of the Darzin Services to operate properly, the Client may be required to have and maintain (a) an adequate internet connection and/or (b) a valid and active account with an online service as set forth in this Agreement related to Darzin Services. By using the Darzin Services, Client acknowledges and agrees that third party data transfer fees may apply depending on the Client’s data plan. Please consult the Client’s carrier for further information. If the Client does not maintain such accounts, then the Darzin Services or certain features of the Darzin Services may not operate or may cease to function properly, either in whole or in part.
Any data, images, and / or files the Client has uploaded to Darzin and stored on Darzin’s system will remain the Client ’s property. Client hereby expressly grant us a perpetual licence to use, copy, and distribute the data, images, and / or files in any manner for the purpose of providing the Darzin Services to the Client. The Client shall use its best endeavours to ensure all the data, images, and / or files which the Client uploads to our system will not breach any law, and Darzin reserves the right to remove any inappropriate data, images, and / or files in our sole discretion. We will not decline any legal request issued by any governmental institutions or organisations to access the Client’s information, data, images, and / or files.
Darzin will endeavour to maintain the integrity of the Client’s data, images, and / or files, and keep them safe in accordance with the Darzin Security Overview. However, it is the Client’s responsibility to download the Client’s data, images, and / or files, and make backup thereof. Darzin are not obliged to maintain and keep any of the Client’s data, images, and / or files if the Client are in arrears of the Client’s subscription, have the Client’s membership suspended, or cancelled. Once the Client’s subscription is cancelled, Darzin will delete the Client’s data, images, and / or files on Darzin’s system within 30 days, and there will be extra charge for requesting Darzin to retrieve any or the Client’s data, images, and / or files 30 days after cancellation of said subscription. Retrieval of deleted data is not guaranteed by Darzin.
By installing, accessing or using the Darzin Services, the Client 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, Canada, United Kingdom or the United States of America. Darzin agrees that the transfer of data to a country outside of Australia is only permitted wherein Darzin is required to comply with an legal obligation (such as a court order, or warrant) to transfer said data and the Client has been informed of the said transfer.
Darzin 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. Darzin may use this information to measure the use and performance of the Software.
Darzin agrees to maintain confidentiality and not disclose or use any Confidential Information supplied by the Client as part of its content submitted to Darzin for the term of this Agreement except wherein required to disclose for purposes of legal compliance or said Confidential Information is publicly available.
Darzin notes that there is information displayed by the App may be derived by statistical analysis and statistically extrapolation of data and may not present actual numbers of people.
5. Age Restrictions
By using the Darzin Service / Software, the Client represents and warrants that the users of the system are (a) 18 years of age or older and the Client agree to be bound by this Agreement; (b) if they are under 18 years of age, the Client have obtained verifiable consent from a parent or legal guardian; and
(c) their use of the App does not violate any applicable law or regulation.
6. Objectionable Content
Content may be submitted to the Darzin, who will moderate all content and ultimately decide whether or not to post a submission to the extent such content includes, is in conjunction with, or alongside any, Objectionable Content. Objectionable Content includes, but is 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.
To the fullest extent permissible under applicable law, the Darzin Services / Software are provided to the Client “as is,” with all faults, without warranty of any kind, without performance assurances or guarantees of any kind, and the Client’s use is at the Client’s sole risk. The entire risk of satisfactory quality and performance resides with the Client. Darzin, Darzin’s licensors and 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. Darzin, Darzin’s licensors and partners do not warrant against interference with the Client’s enjoyment of the software; that the Darzin Services will meet the Client’s requirements; that operation of the Darzin Services will be uninterrupted or error-free, or that the Darzin Services will interoperate or be compatible with any other Darzin Services or that any errors in the Darzin Services will be corrected. No oral or written advice provided by Darzin, Darzin’s licensors and partners or any authorized representative shall create 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. Darzin does not provide any warranty for any goods or services of a third party ordered through the Darzin App or website.
8. Limitations of liability
The Client acknowledges that they will not rely upon Darzin information or participate in any activities found from Darzin App or website that will cause any harm or injury to the Client or any other person.
In no event will the Client or Darzin, Darzin’s affiliates, Darzin’s licensors or partners be liable for special, incidental or consequential damages resulting from possession, access, use, malfunction of, and replying upon the Darzin Services 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 software, whether arising in tort (including negligence), contract, strict liability or otherwise and whether or not Darzin, Darzin’s licensors or partners have been advised of the possibility of such damages. For purposes of this section, Darzin’s licensors and partners are third party beneficiaries to the limitations of liability specified herein and they may enforce this Agreement against the Client.
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. 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.
The Client also agrees to waive all legal responsibilities, to the extent permitted by law, against Darzin in relation to any goods or services provided by a third party.
The Client 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) unless otherwise specified.
In no event shall Darzin’s, Darzin’s affiliates’, Darzin’s licensors’ or partners’ liability for all damages (except as required by applicable law) exceed the actual price paid by the Client for use of the Darzin Services.
9. Other terms and conditions
GENERAL: In the event of conflicting provisions between this Agreement and the terms and conditions appearing on Darzin’s website, this Agreement takes precedence over any and all aforementioned terms and conditions.
MAINTENANCE AND SUPPORT: Darzin provides maintenance or support as per Schedule 1 – Service Levels.
TERMINATION: This Agreement will terminate automatically if the Client fails to comply with its terms and conditions. In such event, the Client must destroy all copies of the Software and all of its component parts and cease and desist from accessing any Darzin Services. With regards to Software delivered on a physical storage medium the Client can end this Agreement by destroying the Software and all copies and reproductions of the Software and deleting and permanently purging the Software from any client server or computer on which it has been installed.
AFFILIATE: For purposes of this Agreement, an “affiliate” or Darzin means any legal entity that is directly or indirectly controlled by Darzin for so long as such control lasts. Control shall exist through direct or indirect ownership of more than 50 % of the nominal value of the issued equity share capital or more than 50 % of the shares entitling the holders to vote for the election of the members of the board of directors or persons performing similar functions.
INDEMNITY: Each Party agrees to indemnify, defend and hold the other respective Party, its partners, affiliates, contractors, officers, directors, employees and agents harmless from and against any and all damages, losses and expenses arising directly or indirectly from: (i) the Client’s acts and omissions to act in using the Darzin Services pursuant to the terms of the Agreement; or (ii) the party’s breach of this Agreement.
MISCELLANEOUS: This Agreement represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and the remaining provisions of this Agreement shall not be affected.
GOVERNING LAW AND DISPUTE RESOLUTION. This Agreement will be governed by the laws of New South Wales, Australia without reference to its choice of law rules. The United Nations Convention for the International Sale of Goods shall not apply.
PRODUCT CLAIMS. Darzin, not Marketplaces nor App Store, is responsible for addressing any claims by the Client relating to the Darzin Services / Software or use of it, including, but not limited to: (i) any product liability claim; (ii) any claim that the Darzin Services / Software fails to conform to any applicable legal or regulatory requirement; and (iii) any claim arising under consumer protection or similar legislation for Darzin Services / Software only. Nothing in this Agreement shall be deemed an admission that the Client may have such claims.
THIRD PARTY INTELLECTUAL PROPERTY CLAIMS. Darzin shall not be obligated to indemnify or defend the Client with respect to any third party claim arising out or relating to the Darzin Services / Software. To the extent the Darzin is required to provide indemnification by applicable law, Darzin, not Marketplaces, shall be solely responsible for the investigation, defence, settlement and discharge of any claim that the Darzin Services / Software or the Client’s use of it infringes any third party intellectual property right.
GENERAL: This Agreement is governed by the laws of New South Wales, Australia. The Parties irrevocably submit to the non-exclusive jurisdiction of the courts of New South Wales.
This Agreement is the entire agreement between the Parties in relation to the Dispute and supersedes all previous agreements, understandings and negotiations in relation to the Dispute.
No amendment or variation to this Agreement is legally binding on a Party unless it is in writing and signed by both Parties.
This Agreement may be executed in counterparts. The Agreement is legally binding on the exchange of the executed counterparts.
Each Party agrees to bear its own legal costs, expenses and disbursements in connection with the Agreement, including the preparation and execution of this Agreement and any documents contemplated by it.
Any clause in this Agreement which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.
Any clause in this Agreement which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction
Schedule 1 – Service Levels
Darzin will provide the Client with reasonable help desk assistance during the Support Times (Monday through Friday, 8:30 am. to 5:30 pm)
- Access to a helpdesk from Monday to Friday 8.30 am to 5.30pm
- Ability to log support calls either by telephone, email or self-service portal
- Ability to log and track support calls
- Quick resolution of faults and queries relating to the system
- Service level agreement with response times for each priority level and adherence to SLA targets
- Escalation process – tickets can be escalated within the system, or a direct approach can be made to the Customer Success Team Leader or General Manager
Error Priorities and Response times
- Level 1 – System is unavailable: Response time: 4 working hours. Expected fix time: 8 working hours
- Level 2 – Severe Impact: a major function, component or application of the system is unusable or errors that cause intermittent system failure. Response time: 8 working hours. Expected fix time: 3 working days (note: if a fix is not possible within the set time, a work-around solution would be provided)
- Level 3 – Degraded operations: a software function, component or application has been lost which does not seriously affect business critical work. Response time: 2 working days. Expected fix time: 20 working days (note: if a fix is not possible within the set time, a work-around solution would be provided)
- Level 4 – Enquiry: all other problems that do not fall into the three categories above. This includes general queries. Response time: 2 working days. Expected fix: Next scheduled maintenance release (note ‘wish list’ suggestions for improvement would be added to our Development list and scheduled by priority. Darzin cannot guarantee these would be achieved within 20 days)
Procedures for Error Correction Services
Darzin will make reasonable efforts to correct and resolve Errors that the Client reports to Darzin and which Darzin are able to reproduce. The Client will promptly provide Darzin with all information requested by Darzin to reproduce such Errors. For each such Error, Darzin will use reasonable efforts to provide the Client with a workaround, a software patch or, if Darzin are unable to provide the Client with either of the foregoing, a specific action plan for addressing the Error, including a good faith estimate of the time required to correct and resolve such Error.
Darzin will use reasonable commercial efforts to communicate with the Client, by telephone, e-mail, instant message or the Darzin website, regarding Errors that the Client reports to Darzin during the Support Times; for purposes of this Agreement, a “response” means Darzin’s acknowledgment of an Error, and does not necessarily mean that a resolution will be achieved.
Darzin will provide the Client with copies of all Minor Enhancements at no additional cost to the Client.
Major Enhancements for the Licensed Software are not included under this Agreement.