INX and the Customer have entered into the MSA under which, among other things, INX will provide the Customer with access to the Software as specified in the MSA.
2. Provision of Software
INX grants the Customer a non-executive, non-transferable, non-sublicensable licence to access and use the Software as set out in clause 2.2. and:
in respect of any Licenced Modules, for the Software Licence Period; and
in respect of any Cloud Solution, for the Cloud Solution Period,as renewed in accordance with the MSA, and ending upon expiry of such periods or upon any earlier termination of the MSA.
Scope of Licence
The Customer is licenced to use the Software, for its internal business purposes and for the licenced number of APPs only, to:
use the Software to generate, print, copy, upload, download, store and otherwise process all audio, visual, digital and other output, displays and other content as may result from any success to or use of the Software;
prepare, reproduce, print, download and use as many copies of the Specifications and documentation as may be necessary or useful for any use of the Software in accordance with this agreement; and
access and use the Software for all such non-production uses and applications as may be necessary or useful for the effective use of the Software hereunder, including for purposes of analysis, development, configuration, integration, testing, training, maintenance, support and repair, which access and use will be without charge and not included for any purpose in any calculation of Customer’s use of the Software.
Cloud Solution Licence
In respect of any Cloud Solution provided to the Customer, the license granted under clause 2.1 is limited to use by the Customer and its employees or contractors (as well as the Customer’s service providers as required for the purpose of such service providers providing services to the Customer for its internal business purposes) using and accessing the Software as set out in clause 2.2 via an Internet web browser and does not include permission for the Customer to install the Software on any hardware.
The Fees specified in respect of the Licenced Modules are based on the corresponding number of licenced APPs. This number is the size of the workforce that the Customer is entitled to manage using the relevant Licenced Module (APP Entitlement).
The workforce corresponding to the APP Entitlement may be located anywhere in the world, and can be managed by the Customer at any time through an administrative interface accessible to the Customer.
The use of APP Entitlements is calculated based on a distinct record stored within the INX Software database (APP Record).
An APP Record that uses an APP Entitlement can be created by the Customer against a person, or against a company (or any other entity) and will use an APP Entitlement through the administrative interface or by integration scripts.
APP Records can be deactivated so that they do not use an APP Entitlement through the administrative interface or by integration scripts.
An APP Entitlement will not be used by an inactive APP Record, being an APP Record that is set as ‘ceased’, ‘terminated’ or ‘no longer used’ by the Customer through the administrative interface.
Inactive APP Records are accessible through the administrative interface and can be reactivated by the Customer if required. Upon reactivation, the APP Record will use an APP Entitlement.
Each APP Record is counted once, irrespective of the number of Licenced Modules used by the Authorised User corresponding with that APP Record.
Exceeding APP Entitlement
Upon the Customer’s workforce exceeding the currently licenced APP Entitlement, the Customer must promptly notify INX and:
INX will notify the Customer of the additional Fees that the Customer must pay INX to use the Licenced Modules for those additional APPs (Licence Upgrade Fee);
the Licence Upgrade fee will be calculated based on the list price of the licence band required for the size of the workforce required to be managed by the Customer minus the list price of the licences currently held by the Customer;
in respect of Licenced Modules that are licenced to the Customer perpetually, the Customer must pay the Licence Upgrade Fee within 60 days of a notice from INX to the Customer that the Licence Upgrade Fee is due; and
in respect of Licenced Modules that are licenced to the Customer for a Software Licence Period other than perpetual, the Customer must pay:
for that part of the Software Licence Period for which the Customer has already paid, the Licence Upgrade Fee within 60 days from INX to the Customer that the Licence Upgrade Fee is due; and
for any payments in respect of the Software Licence Period that have not yet been paid, the Licence Upgrade Fee in addition to the current Fees for the Licenced Modules upon the dates that the current Fees are ordinarily payable.
Monitoring and Usage Reporting
The Customer acknowledges and agrees that it is a condition of the grant of the licence to use the Software that INX will be given reasonable access to:
install monitoring software on the Customer’s INX server to enable INX to check the APP Records; and
configure the Customer’s INX server to check anonymous user and usage information, including but not limited to what browsers are used to access INX, which versions of browsers are used to access INX, what pages are visited and how long INX pages are visited for.
4. Conditions of Access to the Software
All Software provided, or made available, by INX to the Customer is licenced subject to:
the Customer’s compliance with INX’s reasonable directions in relation to the provision of the Software; and
payment of the Fees for the Licenced Modules and the Cloud Solution (as applicable).
The Customer must:
not allow any person other than an Authorised User to access or use the Software;
prevent authorised access to or use of the Software;
notify INX promptly of any such unauthorised use of access of the Software;
ensure that each Authorised User complies with the requirements of this clause 4 and clause 4.4 as if a reference to the Customer was a reference to the Authorised User; and
is liable for use of the Software by all Authorised Users.
Restrictions of Use
The Customer must not, and must ensure that its Personnel do not:
alter, modify, tamper, or make derivative works based upon any part of the Software;
make the Software available to, or use the Software for the benefit of, anyone other than the Customer or Authorised Users;
sell, resell, licence, sublicence, transfer, assign, distribute, rent, lease, or otherwise commercially exploit the Software in any way; or
permit direct or indirect access to or use of any service or content provided by INX in such a way that circumvents a contractual usage limit;
allow the Software to be used to:
send spam or otherwise duplicative or unsolicited messages;
send or store infringing, obscene, threatening, libellous, or otherwise unlawful or tortuous material, including material harmful to children;
transmit or store material containing any Disabling Code;
interfere with or disrupt the integrity or performance of the Software or its related systems, networks or the data contained therein; or
attempt to gain unauthorised access to any service provided by INX, any content provided by INX, any of the Hosting Provider services, or any of INX’s or the Hosting Provider’s systems or networks;
copy any online service provided by INX or any part, feature, function or user interface thereof;
create Internet “links” to the Software or “frame” or “mirror” any content in the Software on any other server or wireless or Internet-based device;
permit the Software to be combined with or incorporated in other software other than normal interfaces without the prior written consent of INX (with such consent not to be unreasonably withheld);
access the Software in order to build a competitive product or service; or
reverse engineer any part of the Software in order to:
build a competitive product or service;
build a product using similar ideas, features, functions or graphics of the Software; or
copy any ideas, features, functions or graphics of the Software
The Customer must:
not insert or activate, or permit a third party to insert or activate any Disabling Code into the Customer’s systems used for accessing the Software, or into INX’s systems, at any time, including upon termination of this agreement;
take reasonable commercial measures to protect the Customer’s systems, and ensure each Authorised User takes reasonable commercial measures to protect the Authorised User’s systems, against any Disabling Code; and
maintain the security and confidentiality of, and ensure each Authorised User maintains the security and confidentiality of, the passwords and other information used by Authorised Users to access the Software.
Without limiting the Customer’s obligations in clause 4.4(a), the Customer must comply with INX’s reasonable directions relating to the security and integrity of the Software, Services or the Customer’s systems
In this clause 4.5, Disabling Code means any virus, bomb, Trojan horse or other malware or computer programming code, including source and object code, which may impair, deny or otherwise adversely affect the use of software.
5. Customer Responsibilities
the customer is solely responsible for supplying and maintaining the Operating Environment.
The Customer acknowledges and agrees that its failure to comply with clause 5.1(a) may affect its ability to successfully use the Software.
The Customer acknowledges and agrees that it is responsible for protecting the Software at all times for unauthorised access or use.
In this clause 5.2, Infrastructure Environment means:
the Customer’s domain name(s) used by the Software;
the Software’s database settings and database environment;
the Software’s database tables; or
the Software’s installation files,
as applicable to the Software used by the Customer.
The Customer must not, and must not allow any person to, perform changes to an applicable Infrastructure Environment associated with the Software without the prior written consent of INX.
If the Customer does not comply with the requirements of clause 5.2(c) and INX is required to reconfigure the Software so that it continues to function as required, INX may invoice the Customer for its time it expends in such reconfiguration at the applicable rate prescribed by INX ( which at the date of this agreement is $200 per hour or part thereof).
6. Customer Acknowledgements
The Customer acknowledges and agrees that:
the Software is not designed for use other than in accordance with the Specifications;
any Output is based on the use of, and data input into, the Software by the Customer and its Authorised Users as well as third party information, and INX is only responsible for errors in the Output to the extent they are caused by defects in the Software;
subject to clause 7 (subject 1) of the MSA, INX makes no warranties or representations as to the suitability for a particular purpose of the Output;
the Output is based to be used only by a professional in conjunction with that professional’s judgement and other information relevant to the Customer’s business, and should not be used or relied upon on its own for providing advice or making any operational or business decisions;
the Output provided by the Software may be inaccurate or incomplete;
the Customer will not rely on the Output in any situation in which there is a threat or risk of harm to a person’s health or life; and
the Customer will not use the Output as the basis of making any decisions that may materially affect the Customer’s business or its ongoing operation.
Basis of Use of the Software
The Customer acknowledges and agrees that:
it has appropriate hardware systems and personnel to implement and operate the Software in accordance with the Specifications and this agreement;
except as provided in this agreement, no promise, representation, warranty or undertaking has been made or given by INX or any other person on its behalf in relation to the performance of the Software or the profitability or any other consequences or benefits to be obtained from the use of the Software; and
the Customer has relied entirely on its own skill and judgment in deciding to enter into this agreement.
Standard and Scope of the Software
The Customer acknowledges and agrees that:
INX will use its best endeavours to provide access to the Software, but INX does not warrant that such access will be uninterrupted or error-free;
despite anything else in this agreement, the Software may not be available in all circumstances; and
all services that the Customer requires in connection with its network, systems or infrastructure, other than the Software as expressly described in this agreement, are not within the scope of the Software.
Unavailability of Cloud Solution or Hosting Services
The Customer acknowledges and agrees that:
any or all of the Cloud Solution or Hosting Services (or both) may be unavailable during periods of scheduled Maintenance, which INX will attempt to perform at off-peak times. if a scheduled Maintenance period is expected to last more than 30 minutes, INX will notify the Customer;
any or all of the Cloud Solution or Hosting Services (or both) may be unavailable during unscheduled Maintenance periods. Once an unscheduled Maintenance is completed and the Cloud Solution or Hosting Services (as applicable) are available again, INX will notify the Customer regarding the Maintenance and its conclusion; and
the Internet is not consistently reliable, and any or all of the Cloud Solution or Hosting Services (or both) may be unavailable or operate slower than usual due to issues related to network coverage, Internet connectivity, the Customer’s telecommunications infrastructure or the Internet generally.
INX is not required to provide any Updates but may:
use Updates to add, remove, modify or otherwise alter features of the Software or Services in its sole discretion;
require the Customer to install Updates in order to continue using the Software or services; and
provide Updates in such a manner that the Software or Services are unable to be reverted to their previous state, or such that previous versions may no longer work.
INX will not be held liable, and the Customer releases INX from any liability, for any loss or damage suffered as a result of the Customer not accepting or implementing a mandatory Update required by INX.
Without limiting any of INX’s rights and remedies under this agreement or at law, INX may limit or suspend the provision of the Software to the Customer by notice in writing with immediate effect if:
INX is affected by a Force Majeure Event;
INX is directed or required to do so by law;
the Customer fails to pay an amount that is due and payable under the MSA;
INX reasonably believes that, in the course of using the Software, the Customer or any Authorised User has infringed a person’s rights (including any Intellectual Property rights) or any Law;
INX reasonably believes that the Customer has failed to comply with its obligations under clause 4; or
an Insolvency Event occurs in relation to the Customer.
INX may limit, suspend or cancel an Authorised User’s access to the Software without notice to the Customer if:
the Authorised User fails to comply with clause 4; or
INX reasonably believes that, in the course of using the Software, the Authorised User has infringed a person’s rights (including any Intellectual Property rights) or any Law.
INX represents and warrants that:
INX will provide the Software in accordance with all applicable Laws.
The Customer represents and warrants that it will not use the Software, or permit the Software to be used, in any way that:
breaches any applicable Law;
infringes any person’s privacy; or
infringes any person’s rights (including any Intellectual Property Rights).
The Customer represents and warrants that it will not provide Output to any third person in a manner that is likely to, or likely to lead to:
breach of any applicable Law;
infringement of any person’s privacy; or
infringement of any person’s rights (including any Intellectual Property Rights).
10. Customer Data
Ownership of Customer Data
The Customer owns all Intellectual Property in the Customer Data.
The Customer consents to INX’s use of the Customer Data for the sole purpose of providing access to the Software and Services to the Customer and for INX’s internal reporting.
INX’s Obligations During Agreement
INX must not:
use the Customer Data for any purpose other than for the purposes of this agreement, or to comply with any applicable Law; or
withhold access to the Customer Data from the Customer or an Authorised User except as set out in clause 8,
without the Customer’s permission.
INX must take all commercially reasonable steps to:
ensure that any Customer Data on INX’s computer systems is protected from unauthorised access or use; and
prevent the insertion of any Disabling Code into any Customer Data on INX’s computer systems.
After Access to the Software Ends
Following expiry of the relevant period referred to in clause 10.4, INX is not obliged to retain any Customer Data relating to the Services or the Software.
INX may, at its sole discretion, continue to retain Customer Data after its obligation to do so ends pursuant to clause 10.3(a) to comply with any applicable Laws relating to archiving or recordkeeping.
If the Customer’s access to the whole of the Software or any Licenced Module is to end for any reason, then:
where access is due to the expiry of the Agreement Term or any Disengagement Period, or otherwise ended on at least 10 Business Days’ notice from either party, the Customer must ensure that it takes a copy of any Customer Data stored in the Software or Services (as applicable) prior to such access ending; and
where access is ended on less than 10 Business Days’ notice, INX will provide a copy of any Customer Data stored in the Software or that Module (as applicable) within 20 Business Days of the access ending.
The Customer acknowledges that Customer Data will be provided by the Hosting Provider.
The Customer consents to the Hosting Provider’s use of the Customer Data for the purpose of hosting the Software.
Each party agrees to comply with all applicable Laws, including the Privacy Act, relating to privacy and data protection with respect to any act done, or practice engaged in, by that party in the course of this agreement.
The Customer agrees to be compliant with all applicable Laws, including the Privacy Act, relating to privacy and data protection with respect to all Output and any other information that is collected, transferred or stored using the Software.
Each party agrees to promptly notify the other party if it becomes aware of a breach of this clause 11.
The Customer must ensure that its Personnel and Authorised Users are aware of the Company’s obligations under this clause 11.