BILLBY.COM PTY LTD. ACN 619 936 480 ('BILLBY.COM') licences this version of the Billby Software ('this Software' or 'the Software') and any corresponding documentation on the terms and conditions of this Licence set out below. Permission to use this Software is conditional upon you ('the Licensee') agreeing to the terms and conditions of this Licence set out below. This Software is only offered to you on condition that you have read and accepted all of the terms and conditions of this Licence.
1.1 Definitions are contained in Clause 20.
2.1 Pursuant to this Licence, the Licensee is granted a single non-exclusive, non-transferrable licence to use the Software:
2.2 This Licence extends to any documentation relating to the Software provided from time to time by BILLBY.COM to the Licensee ('the Documentation').
2.3 The Licensee must have an open Internet connection to enable BILLBY.COM to verify the number of copies of the Software used by the Licensee, which verification shall be undertaken on each occasion that a Subscription Fee is payable under this Licence or when there are any other changes to the terms or type of Licence. In the event that BILLBY.COM cannot verify the use of the Software it shall be entitled to suspend use of the Software.
3.1 The Licensee must pay the initial Subscription Fee, any Subscription Fee on renewal of this Licence and any other fees and charges under this Licence ('Fees') either by credit card or direct debit authorisation.
3.2 The Licensee hereby authorizes BILLBY.COM to process payment of the Fees pursuant to the credit card or direct debit authority provided by the Licensee to BILLBY.COM.
3.2 If the Quotation states that payment of Fees can be made by a means other than credit card or direct debit authority the Licensee will be invoiced in advance and all invoices must be paid within 30 days.
3.3 If a Licensee fails to pay an invoice within the time due for payment, without limiting any other rights that it may have, BILLBY.COM may:
4.1 Where the Licensee has subscribed for a Subscription Licence, the Licensee shall receive and be entitled to use (subject to the terms of this Licence) any Maintenance Software that BILLBY.COM makes generally available to its Licensees.
4.2 For the avoidance of doubt BILLBY.COM has no obligation to develop any Maintenance Software, but agrees to make it available to the Licensee in accordance with this Licence where it has been developed and made widely available.
4.3 Where the Licensee has subscribed for a Perpetual Licence, the Licensee shall not be entitled to receive any Maintenance Software but may purchase Maintenance Software after it has been released in consideration for paying the fees and charges set out on BILLBY.COM's website from time to time.
5.1 BILLBY.COM will provide Licensees who have subscribed for a Subscription Licence with Support Services relating to the Software in accordance with the terms of this Licence at no additional charge.
5.2 Where the Licensee has entered into a Perpetual License, the Licensee shall not be entitled to receive any Support Services but on request may receive Support Services, subject to paying the Support Services Fee.
5.3 The Support Services shall include only services required to assist the Licensee in relation to issues that BILLBY.COM determines should not be capable of being resolved by the Licensee using the User Guide or training provided by BILLBY.COM, and shall be provided by phone or email as determined by BILLBY.COM;
5.4 Support Services shall only be provided during 9.00am to 5.00pm Monday to Friday (Australian Eastern Standard Time), and not including public holidays in Melbourne, Victoria.
5.5 The target response time for Support Services is 2 to 4 hours but may be up to 48 hours depending on availability of support staff.
5.5 BILLBY.COM reserves the right to limit the duration of telephone calls and to determine whether or not issues raised by the Licensees are genuine issues requiring Support Services.
6.1 This Licence operates for the Initial Term. At the conclusion of the Initial Term this Licence shall be automatically extended for further terms equal in length to the Initial Term ('Extended Term'), subject to the Licensee paying, in respect of each Extended Term the fees and charges specified by BILLBY.COM from time to time on its website. This Licence shall not be extended for an Extended Term if the Licensee gives notice to BILLBY.COM to that effect no less than 60 days prior to the expiry of the Initial Term or the relevant Extended Term (as the case may be).
6.2 Without prejudice to any other rights or remedies available to BILLBY.COM, this Licence may be terminated by BILLBY.COM if any of the following circumstances arises:
7.1 The Licensee acknowledges that there is no transfer of title or ownership to the Licensee of the Software or the Documentation or any modifications, Upgrades or Updates of the Software or the Documentation.
7.2 The Licensee may not copy or in any manner alter, modify reproduce, translate, adapt, vary or reverse engineer, reverse compile or attempt to derive the composition or underlying information or structure of all or any part of the Software or the Documentation, except to the extent otherwise expressly authorised by:
7.4 If BILLBY.COM provides its prior written consent to the Licensee copying or reproducing the Software or Documentation, the Licensee shall only do so on the express terms and conditions on which BILLBY.COM provides its consent. The Licensee shall ensure any copy of the Software or Documentation made pursuant to this Licence bears notice of the BILLBY.COM's ownership of copyright. The Licensee shall comply with any directions of the BILLBY.COM as to the form or content of such notices.
7.5 The Licensee acknowledges that the Software and Documentation are the subject of copyright owned by BILLBY.COM. The Licensee will not during or after the Term of this Licence permit any act which infringes that copyright and, without limiting the generality of the foregoing, the Licensee specifically acknowledges that it may not copy the Software or the Documentation except as otherwise expressly authorised or acknowledged by this Licence.
The Licensee hereby undertakes to BILLBY.COM:
9.1 The Licensee acknowledges that the Software cannot be guaranteed to, and that BILLBY.COM does not warrant that the Software will, be free of defects or be error free. The Licensee further acknowledges that the existence of any such defects or errors will not constitute a breach of this Licence.
9.2 To the maximum extent permitted by law and subject to Clause 9.3, the Licensee agrees that BILLBY.COM has no liability, and will not be liable, to the Licensee or any other person for any costs, expenses, loss or damage of any kind (including, without limitation, direct, indirect, special or consequential loss or damage of any kind, loss or profits, loss or corruption of data, business interruption or indirect costs) the Licensee or any other person may suffer or incur (whether by the negligence or fault of BILLBY.COM or otherwise, except where BILLBY.COM has purposefully acted in bad faith) in any way arising out of or in connection with the provision of the Software, the Documentation or any other goods or other services by BILLBY.COM in connection with the Software or otherwise in any way arising out of or in connection with this Licence.
9.3 If rights are conferred upon the Licensee or any other person, or obligations are imposed upon BILLBY.COM by any applicable legislation which cannot be excluded, restricted or modified, the provisions of Clause 9.2 shall be read subject to those rights or obligations, however BILLBY.COM hereby expressly limits its liability under any such legislation to the maximum extent permitted by law.
9.4 Subject to Clauses 9.5 and 9.6, to the extent permitted by law, the Licensee agrees that the liability of BILLBY.COM under this Licence for the breach of any such right or obligation imposed upon BILLBY.COM (which cannot be limited beyond the provisions contained in the following provisions of this Clause 9.4) is limited to:
9.5 Without reducing the effect of, and subject always to, the preceding provisions of this Clause 9, BILLBY.COM's maximum aggregate liability (if any) to the Licensee and any other person for any costs, expenses, loss or damage of any kind (including, without limitation, direct, indirect, special or consequential loss or damage of any kind, loss or profits, loss or corruption of data, business interruption or indirect costs) the Licensee or any other person may suffer or incur (whether by the negligence or fault of BILLBY.COM or otherwise, except where BILLBY.COM has purposefully acted in bad faith) in any way arising out of or in connection with the provision of the Software, Documentation or any other goods or other services by BILLBY.COM in connection with the Software or otherwise in any way arising out of or in connection with this Licence will not, in any event, exceed the amount of the Fees paid by the Licensee to BILLBY.COM for the Software.
9.6 The Licensor shall not be liable to the Licensee to the extent that a defect or error is in whole or part caused by:
9.7 For the sake of clarification, nothing in the preceding provisions of this Clause 9 is to be construed as BILLBY.COM having any actual or deemed liability to the Licensee or any other person as a result of or in any way arising out of or in connection with the provision of the Software or other services by BILLBY.COM in connection with the Software or otherwise in any way arising out of or in connection with this Licence.
9.8 The Licensee acknowledges and agrees that it has exercised its independent judgment in acquiring the Software and warrants that it has not relied on any representation made by BILLBY.COM which has not been stated expressly Software in this Licence, or upon any descriptions or specifications contained in any document including any tender, bid or proposal or other material produced by BILLBY.COM which is not expressly stated in this Licence.
The Licensee hereby indemnifies BILLBY.COM in relation to any loss, damage, costs expenses or liability suffered or incurred by BILLBY.COM resulting from, arising out of or relating to:
The relationship between the Parties is that of vendor and vendee. Nothing in this Licence shall constitute or shall be deemed to constitute the relationship of principal and agent or the relationship of partners or joint venturers between the Parties and neither shall have any authority to bind or commit the other in any way or for any purpose without the prior written consent of the other Party.
The Licensee shall not assign any of its rights, privileges or obligations hereunder without the prior written consent of BILLBY.COM.
No waiver by BILLBY.COM of any provision of or right of BILLBY.COM under this Licence shall be effective unless it is in writing signed by BILLBY.COM and such waiver shall be effective only in the specific instance and for the specific purpose for which it was given. No failure or delay by BILLBY.COM to exercise any right under this Licence or to insist on strict compliance by the Licensee with any obligation under this Licence, and no custom or practice of the Parties at variance with the terms of this Licence, shall constitute a waiver of BILLBY.COM's right to demand exact compliance with this Licence.
Neither Party shall be responsible or liable to the other for any loss, damage, detention or delay caused by limitations of availability, production, hold ups, shortages of raw materials or labour, fire, strike, civil or military authority, governmental restrictions or controls, insurrection or riot, acts of God, acts of terrorism, lockout, tempest, accident, breakdown of machinery, delay in delivery of materials by other persons, or any other cause which is unavoidable or beyond its reasonable control, nor in any event for consequential loss or damages arising out of such loss, damage, detention or delay.
Except as otherwise provided herein, this Licence may be amended only by an instrument in writing signed by BILLBY.COM.
Any provision of this Licence which is or becomes prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective and severed to the extent thereof without invalidating any other provision of this Licence, and any such prohibition or unenforceability shall not invalidate such provision in any other jurisdiction.
This Licence constitutes the entire agreement between the Parties concerning the subject matter of this Licence and supersedes any and all prior agreements, representations, statements, negotiations, understandings, proposals, undertakings, tender, bid or response, oral or written, or other material produced by BILLBY.COM which is not expressly set out in this Licence.
18.1 This Licence shall be governed by and construed in accordance with the laws of the State of Victoria, Australia, and the Parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of the State of Victoria, Australia; provided however that this Licence may also be enforced by the BILLBY.COM in any other jurisdiction anywhere in the World.
18.2 The Parties to this Licence hereby to the extent permitted by law specifically exclude the application of the United Nations Convention on Contracts for the International Sale of Goods and the incorporation of any express or implied terms of said United Nations Convention, and specifically exclude as well the interpretation of this Licence or any part hereof in accordance with said United Nations Convention.
The continuing warranties, covenants and indemnities of the Licensee shall not merge on termination of this Licence and shall survive for the benefit of BILLBY.COM thereafter.
20.1 In this Licence, unless the context otherwise requires:'Subscription Fee' means the fee described as such in the Quotation which is the fee payable for a Periodic Licence of the Software in accordance with this Licence; 'Commencement Date' means the date that BILLBY.COM receives payment of the Subscription Fee or the Perpetual Licence Fee (as the case may be); 'Initial Term' means from the Commencement Date for such period to which the Subscription Fee is specified to relate in the Quotation, or until such earlier date that this Licence is validly terminated; 'Maintenance Software' means software that provides Upgrades or Updates to the Software; 'Permitted Purpose' means the internal business purposes of the Licensee, not for resale or use by any persons outside the Licensee's business; 'Periodic Licence' means the right granted to the Licensee pursuant to this Licence to use the Software for the Initial Term only (subject to any valid extension thereof in accordance with this Licence); 'Perpetual Licence' means the right granted to the Licensee pursuant to this Licence to use the Software on a perpetual basis (subject to the terms and conditions of this Licence); 'Perpetual Licence Fee' means the fee payable by the Licensee for a Perpetual Licence of the Software, subject to the terms and conditions of this Licence; 'Quotation' means the document described as such and provided to the Licensee by BILLBY.COM, and which sets out, amongst other things, the Subscription Fee and the Initial Term. 'Support Services' means the support services as set out in clause 5 of this Licence; 'Support Services Fee' means the fee charged by BILLBY.COM for support services to subscribers of Perpetual Licences at the rate and on the terms set out on the BILLBY.COM website from time to time; 'Term' means the Initial Term and any extension pursuant to this Licence, subject to such earlier date that this Licence is validly terminated; 'Upgrade' means software that improves the performance or functionality of the Software; 'Update' means any error correction or bug fixes to the Software; 'User Guide' means the user guide published from time to time by BILLBY.COM relating to the Software;
20.2 In this Agreement, unless the context otherwise requires: