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Software License Agreement

Yes the fine print. Maica is licensed under the terms detailed below.
This Agreement is dated: 2 Sept 2022
BETWEEN:
Vertic Pty Ltd (ABN 11 309 906 684) of 164 Waverley Road, Malvern East, Victoria, 3145 (Licensor); and (Licensee who is the Maica Application Subscriber).
RECITALS:
A. The Licensor owns certain computer software.
B. The Licensor has agreed to grant to the Licensee a license to use that computer software and its associated documentation on the terms and conditions set out in this Agreement.

OPERATIVE PROVISIONS:

Definitions and interpretation
In this Agreement, unless the context indicates the contrary: Commencement Date means the date of installation of the Maica Application.
Confidential Information means all information provided by one party to the other in connection with this Agreement where such information is identified as confidential at the time of its disclosure or ought reasonably be considered confidential based on its content, nature or the manner of its disclosure, but excluding:
(a) information that enters the public domain or is disclosed to a party by a third party, other than through a breach of this Agreement; and
(b) information developed independently by a party.
Documentation means any and all proprietary documentation made available to the Licensee by the Licensor for use with the Licensed Software, including any documentation available online.
Fees means the fees calculated in accordance with Schedule 1.
Force Majeure Event means any event beyond the control of the relevant party.
GST has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth), or any other similar tax.
Intellectual Property Rights means all intellectual property rights, including all copyright, patents, trade marks, design rights, trade secrets, domain names, know-how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application.
Licensed Software means the Maica software owned by the Licensor and delivered to the Licensee by the Licensor pursuant to this Agreement.
Moral Rights has the meaning given under the Copyright Act 1968 (Cth) and includes any similar rights existing in other countries.
Term means Whilst active Payments are made.
Application means the Maica Salesforce AppExchange solution.
Knowledge Base means the features documented at knowledge.maica.me.
Website means Maica Homepage located at www.maica.me.
Unless the context requires otherwise:
(a) a reference to a person includes a corporation or any other legal entity;
(b) the singular includes the plural and vice versa;
(c) headings are for convenience and do not form part of this Agreement or otherwise affect the interpretation of this Agreement;
(d) the term "includes" (or any similar term) means "includes without limitation"; and
(e) a reference to any statute includes references to any subsequently amended, consolidated or re-enacted version of that statute and all delegated legislation or other statutory instruments made under it.
Grant of license
(a) The Licensor grants to the Licensee world-wide, sub-licensable license to use the Licensed Software and the Documentation during the Term in connection with the operation of the Application and any other Application run by the licensee, subject to and in accordance with the terms and conditions set out in this Agreement.
(b) The Licensee may permit end users of the Application to use the Licensed Software as part of the normal process of using the Application.
(c) The Licensee must not:
(i) use the Licensed Software in any way that could damage the reputation of the Licensor or the goodwill or other rights associated with the Licensed Software;
(ii) except as expressly permitted by this Agreement, and except to the extent that applicable laws, including the Copyright Act 1968 (Cth), prevent the
Licensor restraining the Licensee from doing so:
(A) reproduce, make error corrections to or otherwise modify or adapt the Licensed Software or the Documentation or create any derivative works based upon the Software or the Documentation;
(B) de-compile, disassemble or otherwise reverse engineer the Licensed Software or permit any third party to do so; or
(iii) modify or remove any copyright or proprietary notices on the Licensed Software or the Documentation.
Delivery and installation
(a) The Licensor shall deliver the Licensed Software and the Documentation to the Licensee on the Commencement Date or into a Salesforce sandbox for verification..
(b) If the Licensee reasonably requests, the Licensor will install the Licensed Software on the Licensee's Salesforce sandbox at a time agreed between the parties.
Intellectual Property Rights
(a) Nothing in this Agreement constitutes a transfer of any Intellectual Property Rights.
(b) The Licensee:
(i) acknowledges that the Licensor owns all Intellectual Property Rights in the Licensed Software; and
(ii) will not directly or indirectly do anything that would or might invalidate or put in dispute the Licensor's title in the Licensed Software.
(c) The Licensor warrants that the Licensed Software:
(i) is owned by the Licensor alone and that no other person has any claim to, or interest in, any Intellectual Property Rights in the Licensed Software;
(ii) is the Licensor's original work (or the Licensor's personnel's original work), not copied wholly or substantially from any other item or thing which is protected by copyright anywhere in the world; and
(iii) do not infringe any person's Intellectual Property Rights.
(d) The Licensor agrees to procure that every individual author of the Licensed Software has, to the extent possible under any applicable system of law, consented in writing authorising the Licensee, the Licensee's licensees and successors in title and any other person authorised by the Licensee to:
(i) use all such material for the purposes for which the material was created
and for its or their other business purposes; and
(ii) exercise all rights subsisting in the Licensed Software including (but not limited to) the right to use, deal with, publicly perform, communicate, reproduce, transmit, publish, exhibit, modify, adapt or extract from the Software:
(A) without attribution of authorship to the author; or
(B) even if the exercise of such rights results in "derogatory treatment" which may be prejudicial to the author of the copyright works or would, apart from this clause, infringe the author's moral rights.
(iii) Upon request from the Licensee, the Licensor must promptly provide written evidence of all consents.
(iv) In any jurisdiction where an author of a work will have moral rights or similar rights but in respect of which the provisions in this clause 4 are not appropriate, the Licensor must immediately notify the Licensee and seek directions and approval of the appropriate means by which the interests of the Licensee can be adequately protected. Pursuant to this clause, the Licensee reserves the right to terminate this Agreement should there be no appropriate means by which the interests of the Licensee can be adequately protected
(e) The Licensor must, at its own expense, whenever requested by the Licensee, promptly do or arrange for others to do, everything reasonably necessary or desirable to give full effect to this clause 4.
(f) The Licensor must at all times indemnify the Licensee and the Licensee's personnel against all claims, liabilities, losses, expenses and costs (including legal costs and expenses on a full indemnity basis) incurred or suffered in connection with claim or demand by any person for infringement of Intellectual Property Rights arising directly or indirectly from the creation or use of the Licensed Software (Claim).
(g) If a Claim occurs, without limiting the Licensee's rights and remedies under this Agreement, the Licensor will, at no additional cost to the Licensee:
(i) procure for the Licensee the right to continue to use the Licensed Software or part of the Licensed Software which is the subject of the Claim (Infringing Item);
(ii) modify, replace or adapt the Infringing Item:
(A) so that the Infringing Item no longer infringes any third party's Intellectual Property Rights; and
(B) without any loss of functionality, operability or performance in the Licensee's use of the Software; or
(iii) if the Licensor cannot achieve the remedies under paragraph (i) or (ii), the
Licensor must immediately refund to the Licensee all Fees relating to the Infringing Item and any other affected items.
(h) If a Claim occurs and the Licensor cannot achieve remedies under paragraph (i) or (ii) to the satisfaction of the Licensee, the Licensee reserves the right to terminate this Agreement.
Payment
(a) The Licensee must pay the Licensor the Fees.
(b) The Licensor may invoice the Licensee for the Fees on a Monthly basis in arrears.
(c) Each undisputed invoice is payable within 30 days of the date of the invoice.
(d) A missed payment will result in the termination of the Maica Application license after 60 days from the missed payment date.
GST
(a) All amounts payable under this Agreement are expressed exclusive of GST.
(b) In respect of any taxable supply, the Licensee must pay to the Licensor an additional amount equal to the prevailing GST rate, payable at the same time and in the same manner as the Fees, subject to the receipt by the Licensee of a valid tax invoice.
Audit
The Licensee must permit the Licensor (or its nominated auditor) to audit the records and premises of the Licensee at any time during the Term and for 15 Days following the end of the Term, on at least 28 days written notice, for the purpose of confirming the Licensee's compliance with this Agreement.
Warranties
(a) Each party warrants to the other that it has the right and ability to enter into this Agreement and that this Agreement will be legally binding on it.
(b) The Licensor warrants to the Licensee that:
(i) the Licensed Software will meet the description set out in Schedule 1;
(ii) the Licensed Software will not contain any computer virus (or any similar or other damaging components);
(iii) the Licensed Software will perform substantially in accordance with the Development Specifications; and
(iv) any use of the Licensed Software by the Licensee in accordance with this Agreement will not infringe any right of any party, and will not breach any applicable law or relevant industry code.
(c) The Licensor will indemnify the Licensee against all costs (including legal costs), expenses, damages, accounts or other losses or liability, including those from any actions, suits, proceedings, claims or demands, made against or suffered by the Licensee, arising out of the Licensor's breach of this Agreement, except to the extent to which it arises out of any breach by the Licensee of this Agreement or any negligent act or omission by the Licensee or its agents.
Liability
(a) To the full extent permitted by law, neither party will be liable in respect of any consequential or incidental damages.
(b) Either party's liability for any claim relating to this Agreement will be reduced to the extent to which the other party contributed to the damage arising from the claim.
(c) Warranty Disclaimer: Except As Expressly Set Forth Immediately Above, The Site, Site Content And Service Are Provided Strictly On An “As Is” And “As Available” Basis, And Vertic Makes No Warranty That The Site, Service Or Site Content Are Complete, Suitable For Your Purpose, Reliable, Useful Or Accurate, And On Behalf Of Itself And Its Licensors, Vertic Hereby Expressly Disclaims Any And All Implied, Statutory Or Other Warranties With Respect To The Site, Site Content And Service, Or The Availability Of The Foregoing, Including, Without Limitation, The Implied Warranties Of Merchantability, Fitness For A Particular Purpose, Title And Noninfringement. The Entire Risk As To Results Obtained Through Use Of The Site, Service And/Or The Site Content Rests With You. Vertic And Its Suppliers Will Not Be Liable Or Responsible In Any Way For Any Losses Or Damage Of Any Kind Incurred As A Result Of The Use Of Or Reliance On Any Material Contained On The Site Or Service. Vertic Makes No Representation Or Warranty That The Availability Of The Site And Or The Service Will Be Uninterrupted, Or That The Site, Service And/Or The Site Content Will Be Error Free Or That All Errors Will Be Corrected.
(d) Limitation of Liability: To The Fullest Extent Permitted By Applicable Law, You Agree That Vertic Shall Not Be Liable To You For Any (A) Indirect, Incidental, Consequential, Punitive, Special, Exemplary Or Statutory Damages (Including, Without Limitation, Loss Of Business, Loss Or Profits, Loss Of Revenue, Loss Of Data, Loss Of Goodwill Or For Any Cost Of Cover Or Cost Of Procurement Of Substitute Goods Or Services), Even If Vertic Has Been Advised Of The Possibility Of Such Damages, And Regardless Of The Legal Theory Under Which Damages Are Sought, Whether In Breach Of Contract Or In Tort, Including Negligence Or (B) Amounts In The Aggregate That Exceed The Fees Paid By You To Vertic Hereunder In The Six (6) Months Preceding The Date The Claim Arose.
Termination
A party may terminate this Agreement by email to the other if any of the following events has occurred in respect of the other party:
(a) a material breach of this Agreement which:
(i) is not remediable; or
(ii) if capable of remedy, is not remedied by the other party within 14 days of written notice;
(b) an insolvency event occurs, other than an internal reconstruction with notice to the other party.
Consequences of termination
If this Agreement is terminated or expires for any reason, then, in addition and without prejudice to any other rights or remedies available:
(a) the parties are immediately released from their obligations under the Agreement except those obligations in clauses 8, 10, 12, and 13 and any other obligations that, by their nature, survive termination; and
(b) each party retains the claims it has against the other.
Confidentiality
(a) A party must not, without the prior written consent of the other, use or disclose the other party's Confidential Information unless expressly permitted by this Agreement or required to do so by law or any regulatory authority.
(b) A party may:
(i) use the Confidential Information of the other party solely for the purposes of
complying with its obligations and exercising its rights under this Agreement; and
(ii) disclose the Confidential Information to its personnel or advisers to the extent necessary for them to know the information for purposes related to this Agreement, but only if reasonable steps are taken to ensure that the confidentiality of the information is retained.
(c) Each party must implement and maintain effective security measures to prevent unauthorised use and disclosure of the other party's Confidential Information while it is in the receiving party's possession or control.
(d) Each party must return, or at the other party's option destroy, all Confidential Information of the disclosing party in the receiving party's possession or control, on the earlier of the Licensor's request or on termination of this Agreement for any reason.
Notices
(a) The parties' contact details for notices under this Agreement are as follows, or as otherwise notified by one party to the other from time to time:
Licensor: Vertic Pty Ltd
Address: 164 Waverley Road, Malvern East, Victoria, 3145
(b) All notices must be provided by email and:
(i) delivered during normal business hours;
(c) A notice is deemed to be given and received:
(i) if delivered in accordance with paragraph (b)(i), on the next business day after the day of delivery;
(ii) if sent in accordance with paragraph (b)(ii), 5 clear business days after the day of posting;
(iii) if sent in accordance with paragraph (b)(iii), on the next business day after transmission.
General
(a) The Licensor must not assign, sublicense or otherwise deal in any other way with any of its rights under this Agreement without the prior written consent of the Licensee.
(b) Nothing contained in this Agreement creates any relationship of partnership or agency between the parties.
(c) If a provision of this Agreement is invalid or unenforceable, it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
(d) Each party must at its own expense do everything reasonably necessary to give full effect to this Agreement and the events contemplated by it.
(e) This Agreement (and any documents executed in connection with it) is the entire agreement of the parties about its subject matter and supersedes all other representations, arrangements or agreements. Other than as expressly set out in this Agreement, no party has relied on any representation made by or on behalf of the other.
(f) This Agreement may be amended only by a document signed by all parties.
(g) A provision of or a right under this Agreement may not be waived or varied except in writing signed by the person to be bound.
(h) This Agreement may be executed in counterparts which will be taken together to constitute one document.
(i) A party will not be responsible for a failure to comply with its obligations under this Agreement to the extent that failure is caused by a Force Majeure Event, provided that the party keeps the other closely informed in such circumstances and uses reasonable endeavors to rectify the situation.
(j) Without limiting any other right to terminate under this Agreement, if a Force Majeure Event affects a party's performance under this Agreement for more than thirty (30) consecutive days, the other party may immediately terminate this Agreement by written notice.
(k) All stamp duties and other government charges in relation to this Agreement must be paid by the Licensor.
(l) This Agreement is governed by the laws of and each party submits to the jurisdiction of the courts of Australia.
SCHEDULE 1
Licensed Software
Vertic has published software (Maica) to connect Salesforce to the NDIS digital systems as well as provide NDIS Service Provider capabilities to complement this. Maica runs natively within the Salesforce digital systems and any Maica User must also agree to and provision a compatible Salesforce instance.
As part of this agreement, Users agree to ensure that their specific Salesforce instance is hosted in Australia only and no data is transferred outside of Australia at any time. Installations of the Maica Application are only authorised to be completed by Vertic after successful verification that Users are located in Australia, their Salesforce instance is hosted in Australia and Vertic does not identify a potential data breach.
Users agree to install Maica for its intended use of connecting Salesforce with the NDIS digital systems only; Users further agree to:
  1. 1.
    Not use Maica for criminal activities,
  2. 2.
    Not distribute data managed by Maica to any unauthorised Users or external parties,
  3. 3.
    Not to export, migrate, or distribute any sensitive information outside of Australia,
  4. 4.
    Ensure that their Salesforce instance (which underpins Maica) is hosted in Australia for the duration of Maica's use.
  5. 5.
    Maica Application fees are outlined at Maica’s AppExchange listing
Vertic reserves the right to remove access to Maica via its license management application from any User not complying with this Agreement at any time without notice.
SCHEDULE 2
Application Support
Maica’s Application support is offered via Vertic Pty Ltd as the exclusive partner using the following structures:
  1. 1.
    The scope of Maica’s Application support is limited to any Application features documented in the available Knowledge Base at https://knowledge.maica.com.au,
  2. 2.
    Any features not exclusively documented within this Knowledge Base are not considered to be supported features,
  3. 3.
    Any technical defects (defects which are functionally aligned with the Knowledge Base and present technical errors) are considered to be a supported feature,
  4. 4.
    Any enhancements/amendments/changes to either data structures, processes, or recommendations native to Maica are not supported.
  5. 5.
    Any amendments/changes to the core features of Maica developed or configured by parties other than Vertic Pty Ltd are not supported.
The following service level agreements apply to the Maica Application support provided by Vertic:
  1. 1.
    Any issue/defects raised will be acknowledged within 24hrs of receipt during normal business hours (Mon-Fri, 9am-5pm),
  2. 2.
    All issues/defects must be reported in writing using Vertic’s online support management platform at https://verticconsulting.atlassian.net (access to this will be provided upon execution of this agreement) with the following information being collected:
  3. 3.
    Type of Issue (Defect/Support Request/Idea)
  4. 4.
    Impact Level (High/Medium/Low)
  5. 5.
    Knowledge Base Reference (URL)
  6. 6.
    Nature of Issue (Free Text Description)
  7. 7.
    Critical hot fixes (defined as fixes that severely impact on the operation of Maica) will be released as soon as practicably possible,
  8. 8.
    Any other fixes will be released at regular Maica software updates (biannually) unless it is practical to do so earlier.
SCHEDULE 3
Forward Looking Statement
All Maica software is based on information currently available and documented on the Maica website at www.maica.com.au as well as the knowledge base at knowledge.maica.com.au. Maica provides no assurance that any future features may be implemented and to what timeframes.
Any unreleased services, features, functionality, or enhancements referenced in a Maica document, roadmap, blog, website, press release, or public statement that are not currently available are subject to change at Maica’s discretion and may not be delivered as planned or at all.
Customers who purchase our applications should make their purchase decisions based upon features and functions that are currently available.