End User License Agreement (EULA)

THIS EULA SETS OUT THE CONDITIONS OF CONTRACT BETWEEN YOU AS LICENSEE (You) AND SPIRIT SOFTWARE SOLUTIONS PTY LTD ACN 155 458 521 (Spirit Software) IN RELATION TO THE SOFTWARE.

BY USING OUR SOFTWARE YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THIS EULA. YOU ARE NOT AUTHORISED TO USE THE SOFTWARE IF YOU DO NOT AGREE TO THESE TERMS UNCHANGED

CONTRACT

This EULA is between Spirit Software Solutions Pty Ltd ACN 155 458 521 (Spirit Software, we or our) and the Licensee.
Word meanings and interpretation rules appear at clause 12 of this EULA.
We may change these General Terms and Conditions at any time. You will be deemed to have accepted the change if You continue to use the Software.

2. SOFTWARE LICENCE

Spirit Software grants the Software Licence to the Licensee in accordance with this EULA.
The Licensee acknowledges and agrees specifically that the Software Licence does not confer any rights at any time that permit the Licensee to commercialise or otherwise apply the Software including to on-sell the Software or supply any kind of service that is based upon the Software to any third person including any of affiliates of the Licensee without first obtaining the written consent of Spirit Software.
The Licensee must not at any time grant any person a security interest of any kind in the Software Licence including under the Personal Property Securities Act 2009 (Cth) or other domestic law relating to the granting of security interests anywhere in the world

3. SERVICES

Spirit Software will supply the Services in accordance with this Contract subject to the Licensee’s performance of all its obligations in this EULA.
Spirit Software will supply the Services for the period of one year computed from the Effective Date, the fees for the supply of which are included in the Licence Fees.
If the Licensee requires Spirit Software to continue to supply the Services following expiry of the period in clause 3.2, then the Licensee:

may request their supply for a further period of up to two years (from the date of expiry of the initial one-year period (with effect that the supply of Services will not exceed a total period of 3 years from the Effective Date unless Spirit Software agrees otherwise in writing);
must pay Spirit Software its then applicable fee for supply of the Services for the further period (Additional Support Fees);

and if the Licensee fails to pay the Additional Support Fees within 90 days of the date of the invoice then (without limiting any of its other rights in and arising under this EULA) Spirit Software will cease supplying the Services and will not be liable to the Licensee as a result of terminating that supply under this clause 3.3.

If the Licensee elects not to download a ‘fix’, Update or New Version when it becomes available then Spirit Software will notify the Licensee of the period during which it will be prepared to continue to supply the Services and Spirit Software will:

neither be liable to the Licensee if Spirit Software does not supply the Services in the circumstances in this clause 3.4;
nor refund any Licence Fees.
- The Licensee must do everything reasonably necessary (including supplying information and materials to Spirit Software as it requires from time to time) to facilitate supply of the
- The Licensee is solely responsible for the Operating Environment including effecting and maintaining back-up and disaster recovery activities.
- The Licensee may request Spirit Software to supply Additional Services the supply of which will be subject to this EULA and payment of Spirit Software’s then applicable commercial consulting rates on terms that the parties agree separately in writing.

4. IBM PRODUCTS

The Software is made available by Spirit Software ‘as is’ and in good faith.
The Licensee acknowledges and agrees that:

the Software requires prior installation by the Licensee of the IBM Products on terms of the licence contract between the Licensee and IBM in respect of those products; and
the Licensee relies upon its own professional judgment in relation to the selection, installation, testing, operation and function of the IBM Products that are required to operate with the Software.
- The Licensee must establish and maintain the Operating
- The Licensee (without limiting the Licensee’s obligations in relation to the Operating Environment) must:
use its best endeavours to prevent any Virus from affecting the Software;
notify Spirit Software immediately of anything that affects or is likely to affect the Software or the Services in any way;
ensure that its users keep confidential, protect and do not share log-on access codes, passwords or digital certificates and that each access activity must include the actual user’s name and relevant identifier for compliance and audit purposes; and
notify Spirit Software without delay of any unlawful, inadvertent, wrongful or unauthorised access to or use of the Software or
- The Licensee must:
obtain, maintain, comply with and monitor use of all licences; approvals; authorisations; permissions and consents (whether statutory or otherwise) as relate to use of the Software and the IBM Products; and
notify Spirit Software immediately if for any reason a licence, approval, authorisation, permission or consent referred to in clause 4.5 a. is withdrawn, suspended, terminated or otherwise changed.

5. LICENCE FEES AND PAYMENT

The Licensee will pay the Licence Fees to Spirit Software (and any other moneys payable by the Licensee) in accordance with this EULA.
The Licensee must pay Interest on the unpaid amount of any invoice issued by Spirit Software in relation to the Software Licence and the Services. Interest will be computed from the due date stipulated in the relevant invoice up to and including the actual date of payment.
The Licensee will not be entitled to a refund of any Licence Fees if the Licensee terminates this EULA.
If the Licensee fails to pay the Licence Fees (or as applicable Additional Support Fees or any other moneys due and payable to Spirit Software) by the due date in an invoice, then Spirit Software will be entitled to terminate this EULA and as a result:

Spirit Software will not be liable to the Licensee for termination in accordance with this clause 5.4;
the Licensee must immediately destroy all copies of the Software in its possession, power or control; and
any use or attempted use of the Software by or on behalf of the Licensee will constitute infringement of the IP owned by Spirit Software and the related Third Party IP.
- Nothing in clause 5 limits any of the other rights of Spirit Software in this EULA.

6. INTELLECTUAL PROPERTY

Subject to the rights of any third persons, Spirit Software is owner of the Intellectual Property in the Software and the Services.
All Intellectual Property created at any time by Spirit Software including under this EULA vests absolutely on creation in Spirit Software.
The Licensee acknowledges and agrees that:

the Software is the valuable property of Spirit Software and embodies IP and Confidential Information including technology, ideas and concepts that are owned by Spirit Software (subject to Third Party IP);
no rights in the IP owned either by Spirit Software or any Third Party IP other than as expressly stated in this EULA are granted by Spirit Software to the Licensee; and
use of the Software including any Third Party IP in the Software other than strictly in accordance with this EULA will constitute infringement of the IP rights.
- The Licensee must not:
  1. alter or remove any IP notice in the Software or do or permit anything to be done that is not permitted under this EULA; or
  2. copy, reproduce, arrange, modify, adapt, alter, translate, communicate, distribute, merge, create derivative works of or reverse-assemble or reverse-compile any Source Code in, the Software.
- The Licensee agrees that in Spirit Software’ promotional material in any media including for the purpose of Software evaluation discussions with potential licensees or investors, Spirit Software is entitled during the continuance of this EULA to identify the Licensee and the Licensee’s Site.

7. CONFIDENTIAL INFORMATION

If any Confidential Information is produced or provided by any person in relation to this EULA, the relevant party producing or providing the information must protect the information and must not without first obtaining the written consent of the other party use or disclose the information to any person other than its officers, employees, agents or contractors who need to know it for the proper purposes of this EULA and to use the Software in accordance with the Software Licence.
If the party to whom the Confidential Information has been provided or who has produced the Confidential Information is compelled by law to disclose the information that party will immediately notify the other party and take steps to protect subsequent use and disclosure of the Confidential Information as the other party may reasonably
To the extent that Spirit Software’s IP comprises Confidential Information, nothing in this clause 7 operates to prevent Spirit Software from exercising its IP

8. WARRANTY

Spirit Software’s liability arising under any guarantee, warranty or condition that is implied in this EULA under the Applicable Law including the Australian Consumer Law in respect of applicable goods and services will be limited at Spirit Software’s election to any one or more of the following, in the case of:

goods, to replace the goods or supply equivalent goods; repair the goods; pay the cost of replacing the goods or of acquiring equivalent goods; or pay the cost of having the goods repaired; and
services, to re-supply or pay the cost of having services supplied again, within a period of time that is reasonable in the applicable circumstances and negotiated in good faith between the
- Spirit Software’ liability to remedy any defects arising under any warranty will not apply to the extent that the defect arises from any act or omission including negligence of the Licensee or any third person.
- Spirit Software does not warrant or represent that:
either the Software or the Third Party IP including the IBM Products are free from errors or omissions;
the Licensee will have uninterrupted, fault or error-free use of the Software and the Services;
the Software will prevent unauthorised access to and use of either the Software or the Licensee’s Operating Environment; or
either the Software or the Services or the Licensee’s use of them comply with the laws of the place in which they are accessed and used.
- The Licensee acknowledges that:
Spirit Software will use its best endeavours to ensure that no Virus is in the Software at the time that it is downloaded by the Licensee;
use of the Software by the Licensee is dependent on goods and services (including the IBM Products) that are supplied (whether to Spirit Software or the Licensee) by third persons;
those services and their supply may be affected in any way or precluded without notice; and
Spirit Software excludes liability to the Licensee as a result of the happening of anything referred to in this clause 8.4.

9. LIABILITY AND INDEMNITY

The Licensee indemnifies Spirit Software, its officers, employees, agents and contractors against any liability, loss, damage, cost (including the cost of any settlement and legal costs and expense on a solicitor and own client basis), compensation or expense suffered or incurred by any of them as a result of any act or omission including negligence of the Licensee, its officers, employees, agents or contractors or any other third parties (except to the extent that the liability, loss, damage, cost, compensation or expense is the result of any unlawful or negligent act or omission of Spirit Software, its officers, employees or agents).
The Licensee indemnifies Spirit Software, its officers, employees, agents and contractors against any liability, loss, damage, cost (including the cost of any settlement and legal costs and expenses on a solicitor and own client basis), compensation or expense suffered or incurred by any of them which arises out of any action, claim, dispute, suit or proceeding brought by any third person either in respect of:

infringement or alleged infringement of Third Party IP including moral rights when the infringement or alleged infringement arises out of any activity of the Licensee that is not permitted under the Software Licence; or
breach or alleged breach of confidentiality obligations owed to that third person when the breach or alleged breach of confidentiality is caused by any act or omission of the Licensee or its officers, employees, agents or contractors (whether or not that breach constitutes a breach of this EULA).
- The Licensee indemnifies Spirit Software, its officers, employees, agents and contractors against any loss, liability or expense suffered or incurred by them which arises directly or indirectly as a result of any failure to comply with the Applicable Law as applies to the Licensee.
- Spirit Software’ liability (including under any indemnity) to the Licensee is limited to the total Licence Fees paid by the Licensee to Spirit Software in the 12 months prior to the date that the cause of action arose except to the extent that warranty liability cannot be excluded under law.
- Without limiting any other provision of this EULA, Spirit Software excludes liability to the Licensee for any loss or damage suffered or incurred by the Licensee as a result of any error, defect or failure in or caused by the IBM Products.
- The Licensee must not use, and Spirit Software excludes any liability to the Licensee as a result of any use by the Licensee of, the Software for the Prohibited Purpose.
- Spirit Software will not be liable to the Licensee for indirect special, incidental or consequential loss or damage (including punitive, exemplary or aggravated damages); or for loss of data, profits, revenue, production including business interruption, goodwill, business opportunity or any other economic advantage, savings, benefit (whether or not that party ought reasonably have been aware of the possibility of the loss or damage) or for any statutory fines or
- Neither party will be liable to the other party for non-performance of any obligation in and arising under this EULA if non-performance is the result of a Force Majeure Event in respect of which each party must make all reasonable efforts to mitigate its loss or

10. DISPUTES AND TERMINATION

A party will not commence court proceedings relating to any dispute arising under this EULA except when that party seeks urgent relief from a court or when dispute resolution under clause 2 has failed.
If a dispute cannot be resolved by negotiation between senior management of the parties within 14 Business Days of notification of the dispute the parties will promptly enter into an alternative dispute resolution process (for example mediation) that will be conducted in Sydney, the parties acting in good faith to resolve the
At all times during the dispute the parties will continue to fulfil their obligations under this EULA including the Licensee’s obligation for payment of money to Spirit Software.
Without limiting any of its rights and remedies (whether in this EULA or at law, Spirit Software may immediately terminate this EULA by written notice to the Licensee if the Licensee:

fails within 14 Business Days of receiving written notice from Spirit Software, and in this respect time is essential, to remedy any default or breach of the Licensee’s obligation under this EULA (which cure period for the sake of certainty does not apply to a failure or breach under clause 5 or clause 10.4 d.) ;
novates this EULA or assigns its rights other than in accordance with clause 11.3;
becomes insolvent, subject to any form of administration; ceases to carry on business; or is wound up; or
is in breach of any of its obligations under clause 2 (Software Licence); clause 6 (IP); or clause 7 (Confidential Information).

Spirit Software may immediately terminate this EULA if a Force Majeure event continues with effect that Spirit Software cannot supply or continue to supply the Software or the Services to the Licensee and will not be liable to the Licensee as a result of termination under this clause 10.5.

11. GENERAL

The parties acknowledge and agree that this EULA is legally binding upon them on the Effective Date.
This EULA represents the parties’ entire agreement in relation to the subject matter and supersedes all tendered offers and prior representations, communications, agreements, statements and understandings, whether oral or in writing.
The Licensee must not assign any of its rights under this EULA or novate this EULA without Spirit Software’ prior written consent.
Any provision of this EULA that expressly or by implication is intended to survive termination or expiration of this EULA, including in relation to indemnities, Confidential Information and Intellectual Property, and any rights arising after the date of this EULA, will so survive.
The rights, discretions and remedies arising under this EULA are cumulative and do not exclude any other right, discretion or
Waiver of a provision, right, power, discretion or authority under this EULA must be in writing signed by the party granting the
If any part of this EULA is or becomes illegal, invalid or unenforceable, the legality, validity or enforceability of the remainder of this EULA will not be affected and will be read as if that part had been severed.
The Licensee must comply with the Applicable Law as it applies to the Licensee including the law of the place in which the and Licensee uses the Software.
This EULA is governed by the laws of NSW and (as applicable) the law of Australia and each party submits to the non-exclusive jurisdiction of the courts of NSW and Australia.

12. INTERPRETATION AND DEFINITIONS

If there is any inconsistency between the provisions of this EULA, a descending order of precedence will be accorded to:

the Special Conditions (in the Appendix if any);
these General Terms and Conditions; and
any other document that is attached to or incorporated in this EULA by express reference,

so that the provision in the higher ranked document to the extent of the inconsistency will prevail.

In this EULA:

a reference to a person who is a party to this EULA includes that person’s successors and permitted assigns and any person to whom this EULA is novated;
a person includes a natural person, body corporate, association, partnership, trust or government authority or agency;
a covenant, agreement, warranty or representation on the part of two or more persons binds them jointly and severally; and
the word include or including or similar expressions does not limit what else is included unless there is express wording to the
- In this EULA unless the context otherwise requires:
Additional Services mean the consulting including training services that are separately specified in writing to the Licensee as from time to time may be supplied by on behalf of Spirit Software under this EULA to the Licensee;
Appendix means the attachment if any to this EULA which attachment is deemed to be incorporated in this EULA;
Applicable Law includes the law of NSW and Australia and any other domestic or foreign jurisdiction law (including export and re-export control laws and regulations; and codes and law relating to health information, personal information, any health record and health records linkage system and the security and privacy of that information) that applies to the Licensee;
Business Day means any day other than Saturday, Sunday or a public holiday between the hours of 00 am and 5.00 pm Australian Eastern Standard Time;
Confidential Information means information that by its nature is confidential (including the Appendix if any; health information; personal information including unsolicited personal information; Licensee log-on access codes, passwords or digital certificates; and IP and Documentation) and that the receiving party knows or ought to know is confidential but does not include information which is or becomes public knowledge other than by breach of this EULA or disclosure of which is compelled by law;
Documentation means any paper or other material including Software user manuals on which there are writing, marks, figures, symbols or perforations having meaning for persons qualified to interpret them and any article or material from which sound, images or writings are capable of being reproduced with or without the aid of any other article or device;
Effective Date means the date when the Licensee accepts this EULA;
Force Majeure Event means any event beyond either party’s control including natural events (for example lightning strikes, earthquakes, floods, and fires); acts of war and terrorism (including cyber-terrorism); national emergency; civil commotion; malicious damage or sabotage; industrial action; or telecommunications and other power outages, maintenance and security requirements;
IBM Products means the IBM Tivoli software products (and any other IBM product or suite of products) including services and related IP (including Third Party IP) that are procured by and licensed to the Licensee at any time by IBM, the effective installation, operation and function of which IBM products and services are essential pre-requisites to the effective installation and continuing operation and function of the Software;
Intellectual Property or IP means copyright (including future copyright), domain name rights and all rights in relation to inventions (including patent rights), registered and unregistered trademarks (including service marks), registered and unregistered designs, circuit layouts, technical data (including Source Code) and any other rights resulting from intellectual activity in the industrial, scientific, literary and artistic fields recognised in domestic law anywhere in the world;
Interest means a rate that is 3% above the monthly charging cycle percentage figure published by the CBA in respect of its Overdraft Index Rate product (or replacement of that product at any time) applicable as at the due date in the relevant invoice;
Licence Fees mean the sum of the fees that is separately stipulated in writing by Spirit Software for the supply of the Software (and in relation to the Services, their supply for the period of one year in accordance with clause 3.2) which sum is payable by the Licensee by electronic funds transfer (or other method as Spirit Software may notify at any time) in the currency and by the due date stated in the relevant invoice;
Licensee Security means the Licensee’s overarching management and day-to-day supervision responsibility and accountability for the Operating Environment (including operational, technical and physical controls; authentication; authorisation; allocation, training and education; audit trail and enablement of Software log-on access codes, passwords and digital certificates; messaging in any form including electronic communication); and effective policies, procedures and protocols);
New Version means another version of Software that is designed to provide new functionality (including a new module or customisation of the Software);
Operating Environment means the Licensee’ computer systems comprising all hardware; software including the IBM Products; security devices; modems; cables; firewalls; telecommunication links and connections; and Licensee Security;
Prohibited Purpose means use of any of the Software for any aeronautical, nuclear, medical, life saving or life sustaining purpose including as a direct or indirect result of which personal injury or death may occur as a result of that use;
Services mean the Software support and maintenance services comprising diagnosis, assessment and resolution of faults and ‘bugs’ in the Software that are reported by the Licensee excluding any problem that relates to the Licensee’s Operating Environment) to be supplied under this EULA to the Licensee by on behalf of Spirit Software;
Software means the Spirit Software TSM software product (and any other Spirit Software product) as separately identified in writing to the Licensee by Spirit Software and includes the Documentation, ‘fixes’ Updates and New Versions of the product as may be issued from time to time by Spirit Software in accordance with this EULA;
Software Licence means the non-exclusive, non-transferable licence (without the right to sub-license) to install the Software on the number of the Licensee’s servers in the Licensee’s computer network system as are separately specified in writing by Spirit Software to the Licensee and to use the Software solely for the Licensee’s internal purposes (and no commercial purpose);
Source Code means the expression of software in human readable language which is necessary to understand, maintain, modify, correct and enhance the Software;
Special Conditions mean the conditions that by agreement between the parties are expressed in the Appendix with effect to vary these General Terms and Conditions provided that both parties sign the Appendix;
Third Party IP means IP that is not owned by Spirit Software (including IP owned by IBM) and is embodied in, attached to or is otherwise necessarily related to the function and operation of the Software;
Updates mean software that is provided to overcome errors or malfunctions in or is designed to improve the operation (not being a New Version) of the Software; and
Virus means any malicious software code that disables, corrupts, damages or destroys any communications system, data or computer hardware or software (whether or not as a result of a cyber terrorism event).