Permission to use the Software is conditional upon the Licensee agreeing to the terms and conditions set out below. The Software is offered to the Licensee on the condition that these terms and conditions are agreed and accepted. Acceptance will bind the Licensee and the Licensee’s employees and agents. By clicking “I accept” at the end of these terms and conditions, the Licensee will be deemed to have accepted them.
THIS AGREEMENT is made the on the date specified in the Schedule BETWEEN: OrderMate Pty Ltd (A.C.N. 151 480 170) of 59 Fennell Street, Port Melbourne, in the State of Victoria, AND the person or entity named in the Schedule (Licensee). WHEREAS:
- OrderMate has developed Software to enable the implementation of a point of sale system for use in restaurants and cafes.
- OrderMate has exclusive rights in respect of the Software.
- The Licensee has submitted an Order for the supply of the Software.
- The Licensee desires to be granted a Licence to use the Software.
- OrderMate has agreed to grant the Licensee a non-exclusive Licence to use and operate the Software on the terms and conditions set out in this Agreement.
In this Agreement, the following terms shall, except where the context otherwise requires, have the following meanings:-
- “Agreement” means this agreement including the schedules (as varied from time to time in accordance with clause 16) and includes the Order.
- “Annual Software Upgrade Fee” means the fee/s specified from time to time by OrderMate.
- “Authorised OrderMate Dealer” means a person or entity authorised by OrderMate to licence, maintain and support the Software as specified in the Schedule or as otherwise advised by OrderMate from time to time.
- “Commencement Date” means the date of acceptance of this agreement by the Licensee.
- “Licence”‘ means the non exclusive Licence or Licenses granted by OrderMate to the Licensee to use the Software pursuant to this Agreement.
- “Maintenance and Support Fees” means the fees specified from time to time by OrderMate.
- “Media” means the media on which the Software is recorded or printed.
- “OrderMate Order Proposal” means the proposal entered into between the Licensee and OrderMate.
- “Order” means the Quotation Acceptance Agreement and OrderMate Order Proposal.
- “Quotation Acceptance Agreement” means the agreement entered into between the Licensee and OrderMate which sets out the Licence or Licences ordered by the Licensee and to be supplied by OrderMate to the Licensee.
- “Schedule” means the Schedule to this Agreement.
- “Site” means the place at which the Software is to be used by the Licensee as specified in the Schedule.
- “Software” means the computer program and any related customisation created by OrderMate, agreed in the Order and specified in the Schedule and includes all associated systems and processes, documentation and any modifications, alterations, amendments or developments made to the software or processes from time to time.
- “Software Licence Fee” means the fees agreed in the Order.
- “Standard OrderMate Service Rate” means the rate for service specified by OrderMate from time to time. Words importing the singular include the plural and vice versa and words importing one gender shall include all other genders. Headings are for ease of reference only and shall not affect the interpretation of this Agreement.
- Commencement and Duration
Subject to any rights of early termination contained in Clause 15, this Agreement commences on the Commencement Date and continues until either party terminates this Agreement by giving to the other party three (3) months prior notice in writing.
- Software Licence Fees
- In consideration of OrderMate granting the Licence to the Licensee, the Licensee agrees to pay the Software Licence Fee and if applicable the Annual Software Upgrade Fee.
- In consideration of payment of the Software Licence Fee and if the Licensee chooses the Annual Software Upgrade Fee, OrderMate will ensure that the Licensee receives any applicable Software upgrades as and when they become available at OrderMate’s absolute discretion.
- Conditions of Licence
- OrderMate warrants that it has the authority to grant the Licence.
- The Licence shall be non-exclusive to the Licensee.
Upon installation of the Software, the Licensee shall be responsible for ensuring that the Software is used in accordance with any specifications given by OrderMate.
- The Licensee acknowledges and agrees that:-
- nothing in this Agreement transfers to the Licensee ownership of the Software or OrderMate’s intellectual property rights in relation to the Software;
- the Licensee’s right to use the Software is derived solely from this Agreement and is limited to the operation of the Software in accordance with this Agreement; and.
- OrderMate retains full legal rights in and title to the Software whether in its original form or as modified by the Licensee or OrderMate during the term of the Licence.
- The Licensee acknowledges and agrees that:-
- Subject to the following sub-clauses and without seeking to exclude the provisions of Copyright Act the Licensee shall not copy the Software, in whole or in part.
- The Licensee may make such number of copies of the Software as are necessary to serve its internal needs for system back-up and security. All copies of the Software and the Media in which the copies are contained shall be and remain the property of OrderMate.
- The Licensee shall mark all copies of the Software and the Media in which the copies are contained with a notice of:
- OrderMate’s ownership of the Software and the Media;
- the confidentiality of the Software; and
- such other information as OrderMate requires.
- The Licensee shall maintain records of all copies of the Software made by it and the place at which those copies are situated. Such records shall be furnished to OrderMate upon reasonable notice.
- The Licensee shall notify OrderMate immediately on becoming aware of any unauthorised use or copying of the whole or any part of the Software or of the manual of specifications.
- Delivery up of Software
Immediately upon termination or expiration of this Agreement, the Licensee shall deliver up to OrderMate the Software (including all copies, authorised or otherwise), the Media and the manual of specifications, whether in their original form or as modified by the Licensee or OrderMate.
- The Licensee shall not modify the whole or any part of the Software or combine or incorporate the whole or any part of the Software in any other program or system without the prior written consent of OrderMate.
- If the Software is modified in accordance with the preceding clause 9.1, the modifications shall, unless OrderMate directs otherwise, be made in accordance with a written proposal submitted by the Licensee to OrderMate.
- The Licensee shall fully indemnify and hold harmless OrderMate against any liability incurred if the said modifications infringe the intellectual property rights of a third person.
- The Software as modified remains the property of OrderMate.
- This Agreement shall continue to apply to the Software as modified.
- Reverse Engineering
The Licensee shall not reverse engineer, disassemble or reverse compile the Software or any part of the Software.
The Licensee shall be responsible for protecting the Software at all times from unauthorised access, use or damage.
Risk of loss or damage to the Software shall pass to the Licensee immediately upon the earlier of:
- the Software being in the possession, care, custody or control of the Licensee or the Licensee’s carrier or agent; or
- collection of the Software by the Licensee or the Licensee’s carrier or agent.
- OrderMate warrants that the Software will perform substantially in accordance with the specifications for a period of 12 months from the date of installation of the Software.
- If, within the period specified in clause 13.1, the Licensee notifies OrderMate of:
- the fact that the Software is not performing substantially in accordance with the specifications; and
- alleged defects or errors in the Software, with sufficient particularity to enable OrderMate to remedy the defects or errors, OrderMate shall, at its own expense, as soon as practicable thereafter, use its best endeavours to rectify the defect or replace the Software.
- The warranty contained in clause 13.1:-
- is subject to the Licensee having fully complied with its obligations under this Agreement;
- is not a warranty that the results obtained from the Software will be in accordance with the Licensee’s expectations; and
- does not operate where the substantial non-performance arises in any respect from the installation of the Software, the nature or operation of the equipment on which the Software is used or the use of any materials or Software not provided by OrderMate.
- The provision of any additional maintenance and support services required by the Licensee which are not subject to the warranty contained in clause 13.1, are to provided by OrderMate to the Licensee at the rates set out in the Schedule.
- The decision in relation to whether any maintenance and support services which are to be provided in relation to the Software is covered by the warranty contained in clause 13.1 rests with OrderMate and OrderMate’s decision will be final.
- OrderMate warrants that it has the right to grant the Licence to the Licensee.
- Subject to clause 14.3, OrderMate shall indemnify and hold harmless the Licensee against any claim made against the Licensee by a third party alleging that the Software infringes the copyright of that third party.
- OrderMate shall not be liable to the Licensee under clauses 14.1 or 14.2 if:-
- the Licensee does not notify OrderMate of the other person’s claim or of infringement of copyright within seven days after becoming aware of the claim;
- OrderMate’s ability to defend the claim has been prejudiced by the Licensee’s non-compliance with any of its obligations under this Agreement;
- the Licensee does not give OrderMate reasonable assistance in defending the claim;
- the claim has arisen because of the use of the Software in combination with equipment, materials or computer programs not supplied or approved by OrderMate; or
- the Licensee does not permit OrderMate to have control of the defence of the claim and all related settlement negotiations.
- For the purpose of this Agreement, the following are terminating events:-
- the breach or threatened breach by either party of any of its material obligations under this Agreement;
- the appointment of any type of insolvency administrator in respect of the property or affairs of either party;
- the entry or proposed entry by either party into any scheme, composition or arrangement with any of its creditors;
- the permanent discontinuance of use of the Software or any part of the Software by the Licensee;
- the merger with or the takeover of the Licensee by another person;
- any event described in this Agreement as a terminating event; or
- the purchase of the Software by the Licensee pursuant to an agreement between the parties.
- An affected party may terminate the Licence upon the happening of a terminating event by giving written notice to the other party.
- An affected party may upon the happening of a terminating event give written notice to the other party requiring that:
- immediate steps are taken to remedy any resulting breach of this Agreement; or
- a written undertaking is given by the other party that a breach of this Agreement will not occur.
- If an affected party has not with 14 days received a satisfactory response to a notice given under clause 15.3 it may give written notice to the other party of its intention to terminate the Licence effective immediately.
- Nothing in this clause 15 shall affect the right of an affected party to waive its rights under clauses 15.2, 15.3 or 15.4 if it is satisfied that the happening of the terminating event has not prejudiced and will not in any way prejudice its position under this Agreement.
- Neither party shall be liable for the consequences of an occurrence of any event beyond its reasonable control.
- The Licensee shall immediately on termination return to OrderMate the Software and all copies of the Software, all revisions, enhancements and upgrades of the Software and the Media. Alternatively, if OrderMate requests, the Licensee shall destroy such Software, copies, revisions, enhancements and upgrades by erasing them from the Media and shall certify in writing to OrderMate that they have been destroyed.
- Any termination of the Licence shall not affect any accrued rights or liabilities of either party, nor shall it affect any provision of this Agreement which is expressly or by implication intended to continue in force after such termination.
- For the purpose of this Agreement, the following are terminating events:-
- Entire Agreement
This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the Software. No addition to or modification of any provision of this Agreement shall be binding upon the parties unless made by written instrument signed by a duly authorised representative of each party.
- Remote Access
- If the Licensee wants Remote Support and Software Upgrades, then the Licensee must maintain a remote connection into its Site network to enable remote access by OrderMate or an Authorised OrderMate Dealer.
- OrderMate reserves the right to suspend or cancel the full operational access of the Licensee to the Software if the Licensee fails to pay any fees which are due and payable in accordance with this Agreement or otherwise fails to comply with this Agreement.
All notices which are required to be given to OrderMate under this Agreement shall be lodged online at www.ordermate.com.auor such other site or address as OrderMate may direct. All notices which are required to be given to the Licensee shall be in writing and sent to the address set out in the Schedule or such other address as the Licensee may designate by notice given in accordance with this clause. Any notice may be delivered by hand or by prepaid letter or facsimile. Any such notice shall be deemed to have been served when delivered (if delivered by hand) or 48 hours after posting (except by pre-paid letter) or when dispatched (if delivery by facsimile) or on transmission by the sender (if sent by facsimile or email).
OrderMate may assign this Agreement with notice in writing to the Licensee. The Licensee shall not assign, whether in whole or part, the benefit of this Agreement or any rights or obligations hereunder, without the prior written consent of OrderMate. The Licensee shall complete a Change of Business Ownership Form for approval by OrderMate. All outstanding accounts together with OrderMate’s assignment costs must be paid prior to approval of the assignment. The in-coming Licensee shall be required to sign a fresh EULA. Should the Licensee permit any such assignment without prior written consent, OrderMate shall be entitled to seek damages on a full indemnity basis from the Licensee for all consequential loss and damage arising whether directly or indirectly.
- Licensee Change of Ownership
- The Licensee shall notify OrderMate in writing of any change to the ownership, legal status or financial position of the Licensee and indemnifies OrderMate against any loss or damage suffered by OrderMate as a result of the Licensee’s failure to notify OrderMate of such a change.
- The Licensee is responsible for the payment of any and all fees unpaid and outstanding to OrderMate as at the date of a change of ownership of the Licensee.
- Change of Control
- “Change of Control” means for a corporation, a change in:
- Control of the composition of the board of directors of the corporation;
- Control of more than half the voting rights attaching to shares in the corporation; or
- Control of more than half the issued shares of the corporation (not counting any share which carries no right to participate beyond a specified amount in the distribution of either profit or capital).
- If the Licensee undergoes a Change of Control, it will immediately notify OrderMate in writing of that Change of Control.
- “Change of Control” means for a corporation, a change in:
- The Licensee will not sub-licence or otherwise arrange for another person to use the Software without the prior written consent of OrderMate.
- If OrderMate consents to a sub-licence pursuant to this clause, the Licensee will not be relieved of any of its liabilities or obligations under this Agreement and the Licensee will be liable to OrderMate for the acts, defaults and neglects of any sub-licensee or any employee or agent of the sub-licensee as if they were the acts, defaults or neglects of the Licensee or the employees or agents of the Licensee.
- The Licensee will ensure that each sub-licensee is aware of all the terms of this Agreement and enters into an agreement with OrderMate on the same terms and conditions as the Licensee as this Agreement.
- The Licensee will pay within 7 days of a request OrderMate’s reasonable expenses and legal costs in respect of the Sub-licence of this Agreement whether or not the Sub-Licence occurs.
This Agreement shall be governed by and construed in accordance with the laws for the time being in force in the State of Victoria and the Commonwealth of Australia and the parties agree to submit to the jurisdiction of the Courts and Tribunals of Victoria and the Commonwealth of Australia.
No forbearance, delay or indulgence by a party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party, nor shall any waiver of those rights operate as a waiver of any subsequent breach.
Should any part of this Agreement be or become invalid, that part shall be severed from this Agreement. Such invalidity shall not affect the validity of the remaining provisions of the Agreement.
- Dispute Resolution
Any dispute or difference arising in connection with this Agreement shall be referred to mediation. During such mediation, both parties may be represented by a duly qualified Legal Practitioner.