1.1 In this agreement:
‘Radix’ shall mean Radix Software Pty Ltd ACN 010 955 156 of 12 Railway Terrace, Milton, Queensland 4064, AUSTRALIA.
‘Schedule’ shall mean the schedule supplied to you with the details of the licence(s).
‘Date of Agreement’ shall mean the date of agreement as shown in the Schedule.
‘Anniversary Day’ shall mean the first day of the year following the Date of Agreement and annually thereafter.
‘Program’ or ‘Programs’ shall mean the program shown in the Schedule owned and distributed by Radix and licensed by this agreement.
‘User Documentation’ shall mean the operating manuals, user instructions, technical literature and all other related materials for aiding the use and application of the Program now or in the future.
‘Licence’ shall mean the licence granted by Radix for the use of the Program pursuant to the provisions hereof.
‘Licence Fee’ shall mean the licence fee payable as shown in the Schedule.
‘Annual Maintenance Fee’ shall mean the fee payable annually on each Anniversary Day except in the first year of the agreement and calculated as eighteen (18) percent of the Licence Fee as shown in the Schedule.
‘Client’ or ‘End User’ shall mean the person or company identified in the Schedule as the client.
‘Media’ shall mean the media on which the Program and the User Documentation are recorded or printed.
‘Number of Users’ shall mean the maximum number of network logon names configured to use the Program at the given site, as shown in the Schedule.
2 PROGRAM USAGE
2.1 Licence. In consideration of the Licence Fee paid to Radix by the Client, Radix hereby grants to the Client a non-exclusive, non-transferable licence to use the Programs and User Documentation for the following purposes:
(a) to use the Programs solely for the Client’s own internal data processing operations to perform the function described in the User Documentation and no other functions.
(b) to copy the Programs for archival or back-up purposes. All archival and back-up copies of the Program are subject to the provisions of this Licence.
(c) to use the software application programs embedded in the Program which permit the Program to achieve its functional specification.
2.2 Licence Fee.
(a) The Licence Fee is calculated on the basis of the Number of Users of the Program as set out in the Schedule.
(b) Implementation, training and data conversion costs are not included in the Licence Fee.
(c) Other than where provided free of charge, on-going support and consulting activities will be charged at Radix’s prevailing hourly rate.
(d) Any out-of-pocket expenses to Radix incurred on behalf of the Client such as travel and accommodation will be charged to the Client separately.
2.3 Annual Maintenance Fee.
(a) The Annual Maintenance Fee is calculated as eighteen (18) percent of the Licence Fee as set out in the Schedule.
(b) The Annual Maintenance Fee is payable on each Anniversary Day.
(c) The Annual Maintenance Fee entitles the Client to all released versions of the Program in the year covered by the fee.
2.4 Upgrades. To use the Program, if identified as an upgrade, the Client must first be licensed for the Program identified by Radix as eligible for the upgrade. After installing the upgrade, the Client may no longer use the original program that formed the basis for the Client’s upgrade eligibility, except as part of the upgraded program.
2.5 Additional Software and Services. This agreement applies to updates, supplements, add-on components, or Internet-based services components, of the Program that Radix may provide to the Client or make available to the Client after the date of this agreement, unless they are accompanied by separate terms. Radix reserves the right to discontinue without notice Internet-based services provided to the Client or made available to the Client through the use of the Program.
2.6 No Rental/Commercial Hosting. The Client may not rent, lease, lend or provide commercial hosting services with the Programs.
2.7 No Reverse Engineering. The Client agrees not to cause or permit the reverse engineering, disassembly or decompilation of the Programs.
2.8 No Ownership in Program. By virtue of this Licence the Client acquires the right to use the Programs and does not acquire any right of ownership. All rights title and interest in the Programs shall at all times remain the property of Radix.
2.9 Transfer and Assignment. The rights granted herein are restricted to use solely by the Client at the site specified in the Schedule and may not be assigned or transferred without the prior written permission of Radix.
2.10 User Documentation. The Client and its employees may print the User Documentation in hard copy but may not distribute this material to non-employees of the Client.
2.11 Verification and Audit. On Radix’ reasonable request the Client shall furnish Radix with a signed statement verifying that the Programs are being used pursuant to the provisions of this Licence. Radix shall have the right of access to the Client’s premises at all reasonable times during business hours to verify that the provisions of this Agreement are being complied with.
2.12 Consent To Use Of Data. The Client agrees that Radix may collect and use technical information gathered as part of the product support services provided to the Client, if any, related to the Program. Radix may use this information solely to improve Radix’s products or to provide customised services or technologies to the Client and will not disclose this information in a form that personally identifies the Client.
2.13 Not For Resale Software. Program’s identified as “Not for Resale” or “NFR,” may not be sold or otherwise transferred for value, or used for any purpose other than demonstration, test or evaluation.
3 WARRANTIES, REMEDIES AND LIMITATION OF LIABILITY
3.1 Warranties and Disclaimers
(a) Radix warrants that for a period of 90 days from the Date of Agreement the Programs will perform the functions described in the User Documentation provided that the Program has not been altered or modified and that it is operating within the recommended environment.
(b) Radix does not warrant that the Programs will meet the Client’s requirements, nor that the Programs will operate in the combinations which the Client may select for use, nor that the operation of the Programs will be uninterrupted or error free, nor that all Program errors will be corrected.
(c) Radix warrants that it has the right to market and licence the Program as provided for herein.
3.2 Limitations on Warranties
(a) Radix does not exclude or limit the application of any provision of any statute (including the Trade Practices Act 1974 (Cth)) where to do so would contravene that statute or cause any part of this Clause 3 to be void.
(b) The warranties in this Clause 3 are exclusive and in lieu of all other warranties, whether express or implied, including the implied warranties of merchantability and fitness for a particular purpose, except any conditions or warranties implied by legislation applicable to this licence which may not be excluded or modified.
3.3 Exclusive Remedies. For any breach of warranties contained in this Clause 3 the Client’s exclusive remedy and Radix’s entire liability shall be the correction of Program errors or replacement of Media. If Radix is unable to make the Programs operate as warranted the Client shall be entitled to recover the Licence Fees paid to Radix.
3.4 Limitation of Liability. In no event shall Radix or any licensor of Radix be liable for any indirect, incidental, special or consequential damages including loss of profits, revenue, data or use incurred by the other party or any third party whether in an action in contract or tort even if the first party or any other person has been advised of the possibility of such damages. Radix’s liability for damages hereunder shall in no event exceed the amount of fees paid by the Client under this Agreement, unless the loss is covered by insurance in favour of Radix in which case the liability of Radix shall be limited for any event or series of events to such sum for which Radix shall be insured.
4 SECURITY AND CONTROL
4.1 The Client must retain the Program and User Documentation under its control and effect and maintain adequate security measures to safeguard the same from unauthorised access or use.
4.2 Copyright and other Intellectual Property Rights in the Program and the User Documentation are and shall remain the property of Radix. The Client agrees to notify Radix immediately if it becomes aware of any unauthorised use of the whole or any part of the Program or the User Documentation.
5 TERM AND TERMINATION
5.1 Term. This Licence shall remain in effect perpetually unless terminated as provided in Clause 5.2 or 5.3 below.
5.2 Termination by the Client. The Client may terminate this Licence with one month notice in writing.
5.3 Termination by Radix. Radix may terminate this Licence upon written notice if the Client breaches this Licence and fails to correct the breach within 30 days following written notice specifying the breach.
5.4 Effect of Termination. Termination of this Licence shall not limit either party from pursuing any other remedies available to it, including injunctive relief nor shall such termination relieve the Client’s obligation to pay all fees accrued prior to such termination.
5.5 Return of Programs upon Termination. Upon termination of the Licence the Client shall cease using the applicable Programs and certify to Radix within thirty days after the date of termination that the Client has destroyed or has returned to Radix the Programs and all the copies. This requirement applies to copies of all forms, partial and complete, in all types of Media and computer memory and whether or not modified or merged into other materials.
6.1 No forbearance, delay or indulgence by either party in enforcing the provisions of this Licence shall prejudice or restrict the rights of that party, nor shall the waiver of any of its rights operate as a waiver of any subsequent breach.
7.1 By virtue of this Licence the parties may have access to information that is confidential to one another (“Confidential Information”). Confidential Information shall be limited to the Programs and the information clearly marked as confidential.
7.2 A Party’s Confidential Information shall not include information which
(a) is or becomes a part of the public domain through no act or omission of the party, or
(b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party, or
(c) is lawfully disclosed to the other party by a third party without restriction or disclosure, or
(d) is independently developed by the other party. Results of benchmark tests run by the Client may not be disclosed unless Radix consents to such disclosure in writing.
7.3 The parties agree not to make each other’s Confidential Information available in any form to any third party or to use each other’s Confidential Information for any purpose other than the implementation of this Licence. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the provisions of this Agreement.
7.4 This clause  shall survive the termination of this agreement.
8 GENERAL TERMS
8.1 Force Majeure. Neither party shall be held liable or deemed to be in default under this Licence for any failure to perform its obligations under this agreement if such failure results from circumstances beyond that party’s reasonable control.
8.2 Variation. No addition to or modification of any provision of this Licence shall be binding upon the parties unless it is in writing and signed by a duly authorised representative of both parties.
8.3 Invalidity. In the event that any of the provisions of this Agreement shall be determined invalid, unlawful or unenforceable to any extent, such provision shall be severed from the remaining provisions hereof which shall continue to be valid to the fullest extent permitted by law.
8.4 Notice. Any communication required to be given to or by either party will without prejudice to any other effective mode be deemed to have been properly serviced if served personally or delivered or sent by First Class letter post or fax to the party’s usual or last known place of business.
8.5 Headings. Headings used in this agreement are for convenience only and are not part of the agreement, and shall not be relevant to or affect the meaning or interpretation of this agreement.
8.6 Governing Law. This Licence shall be constructed in accordance with the laws of the State of Queensland, AUSTRALIA and the parties hereby irrevocably submit to the exclusive jurisdiction of the courts of that State.