Date: July 2020
This licence agreement (Licence) is a legal agreement between you (customer or you) and FYB Pty Ltd (ABN 68 108 771 731) (FYB, we or us) for: The FYB Apps, System Add-Ins and Connectors named in one or more written Proposals from us (as updated from time to time) and the associated media (FYB Software); and printed materials and online documents (Documents).
BY DOWNLOADING OR INSTALLING, ACCESSING AND USING THE FYB SOFTWARE AND DOCUMENTS YOU CONFIRM THAT YOU ACCEPT THE TERMS OF THIS LICENCE AND THAT YOU AGREE TO COMPLY WITH THEM. IF YOU DO NOT AGREE TO THESE TERMS, YOU MUST IMMEDIATELY STOP USING THE SOFTWARE AND DOCUMENTS.
WE RECOMMEND THAT YOU SAVE OR PRINT A COPY OF THESE TERMS FOR FUTURE REFERENCE.
1. GRANT AND SCOPE OF LICENCE
1.1 In consideration of payment by you of the charges for using the FYB Software as agreed by us in writing, and you agreeing to abide by the terms of this Licence, we grant to you a non-exclusive, non-transferable licence to use the FYB Software and the Documents on the terms of this Licence. We do not sell the FYB Software or Documents to you. We remain the owners of the FYB Software and Documents.
1.2 You may:
(a) download, install and use the FYB Software for your internal business purposes only, by the number of concurrent Users agreed by us (and for which you have paid a licence fee);
(b) make a reasonable number of copies of the FYB Software for back-up purposes only (and subject to clause 2);
(c) receive and use any supplementary software code or update of the FYB Software incorporating “patches” and corrections of errors as we may provide from time to time (as part of our separate Membership Services); and
(d) use and make copies of the Documents as reasonably needed to use the FYB Software.
1.3 This Licence applies only to the FYB Software. Where we provide you with software packages developed by a third party vendor, your use of that software is subject to those vendors’ licence terms available on the vendor’s website, &/or provided to you as part of installing or using the software.
Except as expressly set out in this Licence or as permitted by any local law, you undertake:
(a) not to copy the FYB Software or Documents except where such copying is incidental to normal use of the FYB Software, or where it is necessary for the purpose of back-up or operational security;
(b) to only use the FYB Software for your internal business use, and not to use the it for any re-sale, service bureau or time-sharing purposes or in any other way allow third parties (who are not authorized Users) to exploit the FYB Software, and not to rent, lease, sub-license or loan the FYB Software or Documents to a third party;
(c) not to make alterations to, or modifications of, the whole or any part of the FYB Software, nor permit the FYB Software or any part of it to be combined with, or become incorporated in, any other programs (except where this is necessary for its normal use, such as connecting with third party software also provided by FYB);
(d) not to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the FYB Software nor attempt to do any such thing except to the extent that such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the FYB Software with another software program, and provided that the information obtained by you during such activities: (i) is used only for the purpose of achieving inter-operability of the FYB Software with another software program; and (ii) is not unnecessarily disclosed or communicated without our prior written consent to any third party; and (iii) is not used to create any software which is substantially similar to the FYB Software;
(e) to keep all copies of the FYB Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of the FYB Software, and not to provide passwords or other log-in information to any third party (other than authorized Users);
(f) to supervise and control use of the FYB Software and ensure that the FYB Software is used by your employees and representatives in accordance with the terms of this Licence;
(g) to include our copyright notice on all entire and partial copies you make of the FYB Software on any medium;
(h) not to provide or otherwise make available the FYB Software in whole or in part (including program listings, object and source program listings, object code and source code), in any form to any person other than your employees or authorised users without prior written consent from us;
(i) not to share non-public FYB Software features or content with any third party, or build a product using similar ideas, features, functions or graphics of the FYB Software.
3. INTELLECTUAL PROPERTY RIGHTS
3.1 You acknowledge that all intellectual property rights in the FYB Software and the Documents anywhere in the world belong to us, that rights in the FYB Software are licensed (not sold) to you, and that you have no rights in, or to, the FYB Software or the Documents other than the right to use them in accordance with the terms of this Licence.
3.2 You acknowledge that you have no right to have access to the FYB Software in source code form.
4. LIMITED WARRANTY
4.1 We warrant that: (a) the FYB Software will, when properly used and on an operating system for which it was designed, perform substantially in accordance with the functions described in the Documents; and (b) that the Documents correctly describe the operation of the FYB Software in all material respects, for a period of 90 days from the date you first install the FYB Software (Warranty Period).
4.2 You agree to promptly notify us in writing of any alleged breach of this warranty. We will have 30 days from receipt of such notice or an additional period of time as reasonably agreed to by both of us to correct such defects in accordance with our support processes. If we are unable to correct such defects within this time, you may elect to terminate your licence to that FYB Software and receive a refund of all charges you previously paid for such FYB Software.
4.3 The warranty does not apply if the defect or fault in the FYB Software results from you having altered or modified the FYB Software or used it in breach of the terms of this Licence, or from any fault in your operating environment, or any third party software or other factors outside our reasonable control.
5. LIMITATION OF LIABILITY
5.1 You acknowledge that the FYB Software has not been developed to meet your individual requirements, including any particular cybersecurity requirements you might be subject to under law or otherwise, and that it is therefore your responsibility to ensure that the facilities and functions of the FYB Software as described in the Documents meet your requirements.
5.2 Subject to clause 5.3, in respect of liability arising directly or indirectly under or in connection with this Licence or the performance or non-performance of this Licence and whether arising under any indemnity, statute, in tort (for negligence or otherwise), or on any other basis in law or equity:
(a) we exclude all liability for any loss of product, loss of data, loss of revenue, loss of profit, loss of or damage to reputation, loss of anticipated savings or benefits, or any indirect, special or punitive loss, damage, cost or expense or other claims for consequential compensation, incurred by or awarded against you;
(b) FYB’s aggregate liability for any and all claims is capped at the charges paid by you for the FYB Software (but not our other services).
5.3 The limitations in clause 5.3 do not apply to: personal injury or tangible property damage caused by negligence; losses relating to fraud or wilful misconduct; or where statute does not allow liability to be limited.
5.4 Our liability shall be reduced proportionately to the extent that your acts or omissions causes or contributes to, directly or indirectly, the loss or damage for which we are liable. If we are liable for the same claim under this Licence as well as under another agreement with you, for example for FYB Membership Services, then our liability to you under this Licence is reduced to the extent you recover under another agreement; i.e. you may not recover twice for the same claim.
5.5 We will not be liable for, or be considered to be in breach of or default under this Licence on account of, any delay or failure to perform as required by this Licence as a result of any cause or condition beyond our reasonable control including failure of public or private telecommunications networks.
5.6 You acknowledge that the warranties in this Licence (or in any other written agreement with us) are the only warranties we give, and (to the extent allowed by law) we disclaim all other warranties, express or implied, about the FYB Software or Documents, including any warranty of merchantability, fitness for a particular purpose, accuracy or reliability. We do not warrant that the FYB Software will operate error-free or that we will be able to correct all software errors. We will not be liable for any claims or damages caused by the unauthorized use of the FYB Software or acts of abuse or misuse by customer or Users. We will also not be liable for any loss or damage in connection with or arising out of the interruption or loss of use of the FYB Software or the loss or corruption of data or files processed or stored by the FYB Software.
6.1 This Licence continues for so long as you keep paying the licence or subscription fees for the FYB Software as agreed with us.
6.2 We may terminate this Licence if you: (a) breach the Licence and do not remedy the breach within two weeks of written notice; (b) breach any term of the Licence which cannot be remedied; or (c) are unable to pay your debts or become subject to an event of insolvency (including having an administrator, receiver or liquidator appointed).
6.3 On termination for any reason: (a) all rights granted to you under this Licence shall cease; and (b) you must immediately and permanently delete or remove the FYB Software from all computer equipment in your possession, and immediately destroy or return to us (at our option) all copies of the FYB Software and Documents then in your possession, custody or control and, in the case of destruction, certify to us that you have done so.
7. CHANGES TO THESE TERMS
7.1 We may update the list of FYB Software to which this Licence applies at any time by posting an updated version of this Licence on our website.
7.2 We may update the terms of this Licence by giving you at least one month’s notice. We will give you notice by email &/or by posting a notice prominently in the FYB Software. Your continued use of the FYB Software and Documents after the end of this notice period shall constitute your acceptance to the terms of this Licence, as varied. If you do not wish to accept the terms of the Licence (as varied) you must immediately stop using the FYB Software and Document at the end of the notice period.
9. GENERAL TERMS
9.1 Words like including, for example, such as or similar expressions are to be interpreted as meaning including, without limitation. If a clause or part of a clause can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way.
9.2 This Licence and any document expressly referred to in it constitutes the entire agreement between us and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter. You agree that you shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Licence or any document expressly referred to in it. This Licence overrides any other terms and conditions (including, for example, standard purchasing terms referred to in your purchase orders).
9.3 We may assign this Licence as part of any corporate reorganization or sale of our assets or business, provided: (a) the assignee agrees in writing to assume all our obligations under this Licence, and (b) we give you written notice of the assignment.
9.4 This Licence, its subject matter and its formation (and any non-contractual disputes or claims) are governed by the laws of Victoria. Each party submits to the non-exclusive jurisdiction of courts with jurisdiction there.