Readysell Software Licence Agreement – Terms and Conditions

Readysell Pty Limited ACN 062 691 687 (“Readysell”) grants a non-exclusive, non-transferable licence (the “Licence”) to the party whose details are set out at Item 1 of the Schedule (the “Customer”) for the use of the software products and accompanying documentation as listed at Item 2 of the Schedule (the “Software”) on the following terms and conditions.

1 Licence

1.1 The Software is licensed to the Customer for its internal business purposes only.

1.2 The Customer must not exceed the number of simultaneous users for which the Customer is licensed.

2 Restrictions

The Customer must not:

a) make any changes or modifications to the Software;

b) decompile, disassemble or otherwise reverse engineer the Software except as permitted by law.

c) use the Software in any way to assist in the development of a competing product; or

d) rent, hire, lease or sub-licence the Software to others.

3 Protection and Security

3.1 The Customer acknowledges and agrees that the Software contains trade secrets and confidential information of Readysell and its suppliers (the “Confidential Information”). The Customer agrees to keep confidential the Confidential Information and not to disclose or otherwise make available any part of the Software to any third party, other than the Customer’s employees, without the prior permission of Readysell.

3.2 The Customer may make copies of the Software in machine readable form for backup and archive purposes only, provided that the original trademarks, copyright notices and or other legends are reproduced in each copy. The Customer agrees not to copy in whole or in part any documentation or printed materials provided with the Software without the written permission of Readysell.

4 Intellectual Property

4.1 Readysell either owns or is authorised to licence all intellectual property rights in the Software and all modifications or amendments thereto (including but not limited to all copyright, patents, trade marks, inventions, know-how and trade secrets and all rights to apply for or register the same). Nothing is this Licence conveys to Customer any rights, title or interest in the Software except those expressly granted herein.

4.2 The Customer agrees that it will not contest or dispute the intellectual property rights of Readysell or any licensor of Readysell in relation to the Software and must not infringe or permit or allow any other person to infringe the intellectual property rights of Readysell or any licensor of Readysell in the Software.

5 Warranties

5.1 Readysell warrants media containing the Software to be free from defects in materials and workmanship under normal use by the original purchaser for a period of ninety (90) days from the date of receipt.

5.2 Except as provided in clause 5.1, the Software is provided on an “as is” basis without, to the extent allowable by law, any warranty of any kind, either express or implied or statutory, including without limitation, implied warranties or merchantability and fitness for a particular purpose.

5.3 Readysell does not warrant that the Software is or will remain error free.

6 Helpdesk and Update Services

6.1 Notwithstanding clause 5.2, Readysell maintains a helpdesk to assist its customers in their use of the Software and in the resolution of errors in the Software (the “Helpdesk Services”). Subject to clause 9.2, Customer is entitled to free access to the Helpdesk Services during the term of this Licence.

6.2 The Helpdesk Services are available during normal business hours in Sydney, Australia and may be accessed by telephone or the Readysell web site. Readysell will provide the Customer with the contact details.

6.3 Readysell does not guarantee to resolve any particular question or problem of Customer in relation to the Software, but will use all reasonable endeavours to ensure that the Software conforms in all material respects with the documentation provided with the Software and any published specifications for it.

6.4 The Helpdesk Services do not include on-site assistance, training or installation support. Where such services are provided, Readysell and Customer will agree the fees (if any) to be paid for these services.

6.5 The Helpdesk Services also do not include resolution or rectification of the following:

a) defects or errors resulting from any modification of the Software made by any person other than Readysell;

b) defects or errors resulting from the use of the Software on any hardware or operating system platform not supported by Readysell;

c) a fault in any hardware, operating system, network or software other than the Software;

d) errors or defects in the Software or Customer’s data arising from a failure of Customer to properly back up the Software or that data in accordance with Readysell’s recommended back up procedures;

e) errors or defects in the Software caused by the failure of Customer to comply with any reasonable directions of Readysell in relation to the resolution of any problem (including the installation of corrective computer code or software);

f) errors or defects in the Software caused by the failure of Customer to approve installation of any previously-supplied patches, fixes or updates to the Software;

g) errors or defects in a version of the Software that is not the current version of the Software or one of the previous two generally available versions of the Software;

h) or defects in the Software caused by any computer virus except to the extent that such virus has been introduced by Readysell either as a result of a deliberate act by it or its employees, or through its failure to maintain adequate protection against the introduction of viruses;

If such assistance is required, Readysell and the Customer will agree the fees (if any) to be paid for such services.

6.6 Customer is also entitled to receive at no additional costs any updates (including without limitation any modifications, fixes, patches or enhancements) to the Software as may be made available from time to time by Readysell and such updates will form part of the Software licensed pursuant to this Agreement.

7 Customer Obligations

a) Customer must cooperate fully with the Supplier’s personnel in the diagnosis and resolution of any defect or error in the Software.

b) Customer must make available to Readysell free of charge all information, facilities and services reasonably required to enable Readysell to perform the Helpdesk Services effectively.

c) Customer must provide such telecommunication facilities as are reasonably required by Readysell for testing and diagnostic purposes at the Customer’s sole expense.

8 Liability of Readysell

Except as expressly provided to the contrary in this agreement, all terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating in any way to the Software or to this agreement, are excluded. Without limiting the generality of the preceding sentence, Readysell has no liability to the Customer in respect of any loss or damage (including consequential loss or damage) however caused, which may be suffered or incurred or which may arise directly or indirectly in respect of a Software or the failure or omission on the part of Readysell to comply with its obligations under this agreement.

8.1 Where any Act of Parliament implies in this agreement any term, condition or warranty, and the Act avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of, or liability under such term, condition or warranty, such term, condition or warranty shall be deemed to be included in this agreement. However, the liability of Readysell for any breach of such term, condition or warranty shall be limited, at the option of Readysell, to any one or more of the following:

a) if the breach relates to goods:

i. the replacement of the goods or the supply of equivalent goods;

ii. the repair of such goods;

iii. the payment of the cost of replacing the goods or of acquiring equivalent goods; or

iv. the payment of the cost of having the goods repaired; and

b) if the breach relates to services:

i. the supplying of the services again; or

ii. the payment of the cost of having the services supplied again.

9 Licence Fee

9.1 The Software is licensed subject to the payment by Customer of a monthly licence fee (the “Licence Fee”), Terms 21 days receipt of invoice.

9.2 The initial amount of the Licence Fee has been agreed separately by the parties. Readysell may vary the amount of the Licence Fee on payment terms less than 60 days notice to the Customer.

9.3 Notwithstanding clause 9.2, Readysell may at any time immediately adjust the Licence Fee to reflect any increase in the number of:

a) copies of any single user Software; or

b) authorised users of any multi-user Software licensed under this Licence.

10 Suspension

10.1 If the Customer does not pay the Licence Fee in accordance with clause 9.1, or is otherwise in breach of this Agreement, Readysell may, at its discretion, and in addition to any other remedies it may have, suspend the Licence until such time as all outstanding payments have been received, by notice in writing to this effect.

10.2 For the duration of any suspension of the Licence pursuant to clause 10.1, The Customer must immediately not use the Licensed Product(s) for any purpose and the Customer will not have access to the Helpdesk Services or be entitled to any update of the Software.

11 Term and Termination

11.1 This Agreement and Licence are effective from the date of execution and shall remain in force until terminated in accordance with these terms and conditions or as otherwise allowed at law.

11.2 The Customer may terminate this Licence by notice in writing to Readysell.

11.3 Readysell may terminate this Licence immediately on written notice if the Customer:

a) commits an act of bankruptcy, becomes insolvent or is the subject of winding up proceedings; or

b) breaches any of the terms and conditions of this agreement including, without limitation, the failure of the Customer to pay the Licence Fee in accordance with clause 9 and does not remedy such breach within fourteen (14) days of written notice from Readysell to so remedy.

11.4 On termination of this Licence for whatever reason, the Customer must destroy all complete and partial copies of the Software in its possession or control and, if so requested by Readysell, must certify in writing that to the best of its knowledge, the original and all copies of the Software in its possession or control have been destroyed.

12 Appointment of Nominees

Readysell may at any time and at its sole discretion appoint one or more third parties (“Nominees:”) to exercise its rights and perform its obligations under this Agreement, including without limitation, the setting and collection of the Licence Fees and the provision of the Helpdesk Services. Customer must perform its obligations under this Agreement in accordance with any directions of Readysell or its Nominees.

13 Reliance

The Customer warrants that it has not relied on any representation made by Readysell which has not been stated expressly in this agreement or upon any descriptions or illustrations or specifications contained in any document including any catalogues or publicity material produced by Readysell.

14 Waiver

No forbearance, delay or indulgence by a party in enforcing the provisions of this agreement shall prejudice or restrict the rights of that party, nor shall any waiver of those rights operate as a waiver of any subsequent breach.

15 Severability

Should any part of this agreement be or become invalid, that part shall be severed from this agreement. Such invalidity shall not affect the validity of remaining provisions of the agreement.

16 Entire Agreement

This Agreement (including the Schedule) constitutes the entire agreement between the parties for the subject matter referred to in clause 1. Any prior arrangements, agreements, representations or undertakings are superseded. No modification or alteration of any clause of this agreement will be valid except in writing signed by each party.

17 Headings

Headings used in this agreement are for convenience and ease of reference only, are not part of this agreement and shall not be relevant to or affect the meaning or interpretation of this agreement.

18 Governing Law

This agreement shall be governed by and construed in accordance with the laws for the time being in force in the State of New South Wales Australia and the parties submit to the jurisdiction of the courts and tribunals of that State.