Wands (Excel4apps) Software License and Maintenance Agreement
Software License and Maintenance Agreement
Software License and Maintenance Agreement
Entered into by and between
Excel4apps Pty Ltd, Suite 40
23 Narabang Way, Belrose, NSW, 2085 Australia
(“Excel4apps”)
And You
(“Customer”)
1. Certain Definitions:
In this Software License and Maintenance Agreement (“Agreement”):
“Documentation” means Excel4apps’ documentation that is delivered or made available to Customer with the
Software under this Agreement, including but not limited to the user guide, quotation, Invoice, License Key(s) and
any electronic communication by and between Excel4apps or Excel4apps’ reseller and Customer.
“Instance” means for Customers licensing Software for use with Oracle E-Business Suite, a copy of the configuration setup accessed by the Software.“Invoice” means a statement issued to the Customer by Excel4apps, or an Excel4apps authorized reseller, for the
payment of License fees, Maintenance or other services and may set forth certain terms, conditions, exceptions
and License Restrictions.
“License” means the paid license granted to the Customer by Excel4apps as defined in Section 4 for use of the Software.
“License Fee” means the amount payable for a License as set forth on an Invoice.
“License Key” means the unique alpha-numeric key provided in conjunction with a License to allow the Customer to access the Software and Maintenance.
“License Restriction” means a License which has specific restrictions placed on it.
“Maintenance” means electronic correspondence support (e-mail or other electronic media) for problem resolution, technical support and maintenance of the Software where necessary, and the provision of upgrades or updates to the Software, or the provision of new Software Versions or new Major Software Versions as may be released by Excel4apps from time to time. Maintenance is also referred to as “Support”, “Support Services” or “Support and Upgrade Entitlement” in the Documentation.
“Maintenance Period” means the period during which Excel4apps will provide Maintenance.
“Maintenance Fees” means the amounts payable for Maintenance on Licenses as specified on an Invoice.
“Maintenance Renewal Fees” means the optional amounts payable for the extension of the Maintenance period for a further period, usually annually.
“Major Software Version” means a unique build of the Software released by Excel4apps representing a consolidation of previous point releases and a significant change or advancement of functionality and is identified by the number preceding the point in the Software Version number and has a corresponding release date e.g. version 5 released on 23 July 2013.
“Materials” means any software, programs, tools, systems, data, predefined queries and reports or other materials made available by Excel4apps to Customer in the course of the performance of this Agreement including, but not limited to, the Software and Documentation as well as any information, materials or feedback provided by Customer to Excel4apps relating to the Software and Documentation.
“Modification” means (i) a change to the delivered Software’s source code or metadata; or (ii) any development, other than a change to the Software’s delivered source code or metadata, that customizes, enhances, or changes existing functionality of the Software including, but not limited to, the creation of any new Software interfaces, alternative user interfaces or the extension of data structures; or (iii) any other change to the Software utilizing or incorporating any Excel4apps Materials.
“Named User” means an individual who is authorized by the Customer to access the Software, also referred to as a User.
“NoetixViews” is software developed by Magnitude Software Inc and may be distributed by Excel4apps in conjunction with Reports Wand. If “Reports Wand with NoetixViews OEM” is specified on the invoice then NoetixViews will be distributed by Excel4apps with limited Source code. Any modification to such source code made by or on behalf of Customer (“Modifications”) shall be the exclusive property of Magnitude Software and shall be considered part of the Software, subject to the terms and conditions of this Agreement. Upon installing any Magnitude Software-provided updates to the Software (“Updates”), Customer is responsible for incorporating
Modifications into the Updates, and Customer will not hold Magnitude Software or Excel4apps responsible for the loss of previous Modifications, reprogramming or other data, or for any delay, that may result from Modifications.
Neither Magnitude Software, nor Excel4apps has any obligation to provide technical support for, and has no liability under Section 7 (Warranties & Exclusions) with respect to, Modifications or any impact the Modifications have on the Software. In terms of Excel4apps obligations to perform Maintenance and provide Updates detailed in section 5 (Maintenance) below, to the extent that the provision of Maintenance or updates relates to the NoetixViews Software, Magnitude Software Inc would be the responsible service provider. Excel4apps may escalate maintenance requests that relate to NoetixViews Software to Magnitude Software when necessary. In
such cases the Customer may need to liaise directly with Magnitude Software for final problem resolution. In section 11 (Limitation of Liability) below, the limitation of liability afforded to Excel4apps, shall be equally afforded by Customer to Magnitude Software Inc to the extent that any damages or loss are caused by a deficiency of the NoetixViews software. Magnitude Software Inc, disclaims any liability for any claims or damages arising from inherently dangerous use of the Software.
“Reports Wand with NoetixViews OEM” if specified on the invoice, means a license to use Reports Wand and NoetixViews OEM in conjunction with a valid Excel4apps license key. NoetixViews OEM is a scope restricted license grant to use NoetixViews content. The restriction includes a restriction on the tools which are permitted to access NoetixViews content. Only Excel4apps Software and tools are allowed to access NoetixViews OEM content. Third party software may not be used to access NoetixViews content for for reporting, dashboard creation, performing of data extractions or for obtaining data for Customer use except when diagnosing or correcting errors or for developing Reports Wand queries.
“SAP Landscape” means for customers that license Software for use with SAP, then any number of SAP systems in
a typical SAP environment (e.g. DEV, TST, QA and PRD).
“Software” means (i) any and allExcel4apps’ software and any third party products licensed to Customer under this Agreement and as specified on the Invoice, and delivered to Customer hereunder; (ii) any new Software Versions made available to Customer pursuant to Maintenance; and (iii) any complete or partial copies of any of the foregoing.
“Software Version” means a unique build of the Software released by Excel4apps from time to time as identified by the alpha-numerical sequence assigned to it together with a corresponding release date e.g. version 5.9.1 released on 25 June 2015.
“Term License” means a license granted to Customer by Excel4apps specified as such on the Invoice or other Documentation that has an end date upon which the license grant will automatically come to an end.
“Trial License” means the rights granted to Customer to use the Software on a limited, non-production basis and in some cases with limited functionality and for a limited period of time. Trial Licenses are provided free of charge.
“Web Conference” means an Internet based virtual conference facility that allows Excel4apps to remotely see and control activity on a user’s workstation for Maintenance purposes.
2. Trial of Software:
2.1 You may use Software on a trial, non-production basis only for a time period commencing from installation of the trial Software until such time as the
a. Trial License Key expires; or
b. the trial is terminated by either party
2.2 Trial Licenses are provided “as is” and no Maintenance will be provided. Excel4apps does not offer any warranties with Trial Licenses.
2.3 Customers in trial are subject to all the terms and conditions of this Agreement and Documentation except for the provisions related to Fees and Maintenance. If you decide to use Software after the trial period, you must obtain a different License from Excel4apps or an Excel4apps authorized reseller. If you decide not to obtain a License for the Software after the trial period, you must cease using and delete all copies of the Software from your computer systems.
3. Commencement and Duration:
3.1 This Agreement shall commence (“Commencement Date”) on the earlier of
a. the date of acceptance of this Agreement; or
b. the Invoice date; or
c. a date mutually agreed upon by the parties
3.2 This Agreement shall terminate on the later of
a. the date Customer ceases its use of the Software; or
b. in the case of a Term License or Trial License, the date that such Term License or Trial License expires
3.3 The Maintenance Period shall commence on the Invoice date and provided that the Maintenance Fees are paid in full, shall remain valid for the duration of the Maintenance Period as specified on the Invoice. Neither party may terminate the Maintenance Period.
4. Rights Granted; License Keys
4.1 Excel4apps hereby grants Customer a non-exclusive, non-transferable license (“License”) to use the Software and Documentation on the terms and conditions of this Agreement and in accordance with Excel4apps’ specifications, exceptions, exclusions, and intended uses as contained in the Documentation provided that Customer has paid for the License in full. The License shall apply to the Software Version that Customer first receives from Excel4apps and any subsequent Software Versions and updates that Customer receives pursuant to Maintenance. In the event that the Customer purchased a Term License, then the License granted shall automatically expire at the end of the term.
4.2 Customer is responsible for its employees’ and contractors’ compliance with the terms and conditions, specifications, exceptions, exclusions, License Restrictions and intended uses contained in this Agreement and Documentation.
4.3 The Customer agrees that any of the following actions performed by any of its employees or contractors is an acknowledgement by the Customer that it is bound by the terms and conditions of this Agreement and the Documentation
a. installing the Software; or
b. using the Software; or
c. using a license key, or
d. electronically or manually accepting this Agreement
4.4 In order for Excel4apps to generate and make a License Key available to the Customer, the Customer will need to comply with the latest key request and acceptance procedure as communicated to the Customer by Excel4apps.
4.5 A License Key, when issued and properly entered into the Software, will usually grant or restrict Customer’s access to the Software to the extent that valid licenses have been purchased. However, where License Restrictions have been specified on the invoice, this agreement or Licenses have not been granted, Customer will need to control access and/or limit usage of the Software to ensure compliance with the actual Licenses granted.
5. Maintenance
5.1 “Maintenance” means electronic correspondence support (e-mail or other electronic media) for problem resolution, technical support and maintenance of the Software where necessary, and the provision of upgrades or updates to the Software as may be released by Excel4apps from time to time. The Customer acknowledges that the provision of Maintenance pursuant to the terms and conditions of this Agreement and the Documentation does not guarantee error-free or uninterrupted operation of the Software.
5.2 Excel4apps shall provide the Customer with access to its Web Conference service if Excel4apps determines that a shared desktop is required for problem resolution. An Excel4apps support representative may need to control Customer’s desktop for the purpose of unlocking programs for tracking purposes. If the Customer declines the Web Conference service due to the Customer’s imposed security restrictions or for any other reason, then the Customer will be required to provide an alternative equivalent remote desktop
sharing method for Excel4apps to provide remote problem resolution.
5.3 Excel4apps shall have the right in its sole discretion, without limitation to revise, modify, upgrade and update the Software from time to time.
5.4 Excel4apps shall use all reasonable efforts to respond to the Customer’s request for Maintenance as soon as reasonably possible, during the combined office hours of the global support centers. The support centers are usually open combined 24 hours a day from Monday to Friday
5.5 Excel4apps shall prioritize support response based upon the severity of the situation based on the criteria
below:
| Case Priority | Nature of Problem | No. of Persons Affected | Support |
|---|---|---|---|
| PRIORITY 1 | No Software access or major component not functional with no workarounds (in production environment) | All or large group of users | Dedicated attention 7 days per week across multiple time zones until resolved (requires that Customer likewise has a representative available 7 days per week) |
| PRIORITY 2 | No Software access or major component not functional with no workaround (In production environment) | Single user | Same day attention: Daily weekday attention from support center until resolved |
| PRIORITY 3 | Minor components not functioning, work around exists | All or large group of users | Attention by next business day |
| PRIORITY 4 | Minor components not functioning or in error | Single user | Attention within 3 business days |
| PRIORITY 5 | Nice to have or suggestion | N/A | Response within one week |
5.6 The following are not automatically included as part of Maintenance and will not be performed or incurred except with prior written agreement between the parties
a. any development of customized reports to Customer specifications as requested by Customer
b. any instructor-led training requested by Customer
c. any travel expenses incurred by Excel4apps traveling to a Customer’s site for the purposes of performing Maintenance
d. any Maintenance required for a Software Version that is not the then current or immediately previous Major Software Version
6. Fees, Taxes, and Payment Terms
6.1 Upon receipt of Customer Purchase Order or upon electronic receipt from Customer accepting a quotation, Excel4apps or an Excel4apps approved reseller shall send an invoice electronically to Customer for payment. The invoice needs to be paid in full by the due date before Excel4apps will grant the License, provide the Maintenance or issue the License Key(s).
6.2 Prior to the end of the Maintenance Period, Excel4apps or an approved reseller shall send Customer a Maintenance renewal invoice with an option to extend maintenance for a further period. The invoice needs to be paid in full by the due date before Excel4apps will extend Maintenance or issue a new License Key(s).
6.3 Extending Maintenance is optional. However, should Customer notify Excel4apps of its intention not to extend maintenance or opt not to pay Maintenance Renewal Fees in full by the due date then
a. Customer’s Maintenance will lapse
b. the then most current Software Version Customer has (“Last Software Version”) will continue to
operate “as is” and Customer shall continue to hold a License for the Last Software Version
c. Last Software Version will be without further support
d. Customer will, subject to the provisions of 6.4 below, forever be ineligible for any further updates
or upgrades to the Last Software Version
6.4 Customer may re-instate lapsed Maintenance by paying the outstanding Maintenance Fees and/or Maintenance Renewal Fees, as the case may be, plus 25% of the unpaid portion to that date, provided that the lapse period is less than 12 months. If the lapse period is greater than 12 months, then the right to re-instate Maintenance shall be forfeited forever for all Software with lapsed Maintenance.
6.5 Excel4apps shall be entitled to increase the optional Maintenance Fees annually. The annual increase shall be no more than 5%.
6.6 Should there be an outstanding balance remaining on any Invoice for License Fees 30 days following the due date, then Excel4apps or an Excel4apps approved reseller shall be entitled, without prejudice to any of its rights under this Agreement, to charge interest on the outstanding amount at the then prevailing prime lending rate of the Federal or Reserve Bank plus 2% of the country of the Customer, but limited to the maximum allowable amount by law in Customer’s country of incorporation.
6.7 All quotes for License Fees and Maintenance Fees exclude fees for general sales tax, value added tax,
goods and services tax or any other such taxes, which are imposed by applicable local and federal laws
(together, “Taxes”). Taxes shall be reflected accordingly on all Invoices.
7. Excel4apps Warranties and Exclusions
7.1 Excel4apps warrants and represents that:
a. it is entitled to enter into this Agreement and grant Licenses
b. on installation, the licensed Software will operate in all material respects as described in the applicable Documentation for 6 months following delivery
7.2 The warranty described in this section 7 will not apply if:
a. the Software is not used in accordance with the Documentation; or
b. the defect is caused by a Customer Modification or other third party software
7.3 Customer must notify Excel4apps in writing within 6 months following delivery of Software of any Software warranty deficiency.
7.4 EXCEL4APPS DOES NOT WARRANT OR GUARANTEE THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR THAT IT WILL BE FREE FROM MINOR DEFECTS OR ERRORS THAT DO NOT MATERIALLY AFFECT PERFORMANCE, OR THAT THE SOFTWARE WILL MEET ALL OF THE CUSTOMER’S REQUIREMENTS. TO THE EXTENT PERMITTED BY LAW THESE WARRANTES ARE EXCLUSIVE AND EXCEL4APPS, ITS RESELLERS, OFFICERS, DIRECTORS, EMPLOYEES OR AFFILIATES (TOGETHER, THE “EXCEL4APPS ENTITIES”) DISCLAIM ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Title, Ownership and Copyright; Usage of Software
8.1 The Customer hereby acknowledges and agrees that:
a. Excel4apps is the sole and exclusive owner of all right, title and interest in and to the Excel4apps Software including all copyright and proprietary rights therein and all such rights are protected by international treaty provisions and all other applicable national, state and local laws of the country in which Software is being used
b. Customer has no rights whatsoever in the Software except those expressly granted by this Agreement and Documentation
c. Customer shall not directly or indirectly, nor assist any other person or entity to directly or indirectly:
i. remove or modify any Software markings or any notice of proprietary rights
ii. make the Software, Documentation or Materials, or anything resulting from Maintenance, available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted in this Agreement or Documentation)
iii. cause or permit de-compilation, reverse engineering, reverse assembly, reverse compilation, disassembly, Modification, adaptation, translation, or otherwise change or attempt to change the Software
iv. enhance the Software or merge or integrate the Software into any other computer program or create derivative works from the Software
v. use the Software for any purpose other than its intended purpose as licensed under this Agreement vi. use the Software on a service bureau or application service provider basis
d. Customer agrees that the Excel4apps Software as modified or altered remains the property of Excel4apps in all respects, whether modified by Excel4apps, the Customer or a third party and whether or not authorized pursuant to this Agreement and/or Documentation and Customer unconditionally and irrevocably assigns to Excel4apps all intellectual property rights arising out of
any Modifications to the Software.
9. Data Collection and Usage
9.1 Data we collect
a. The collection and usage of data by Excel4apps and the other Excel4apps Entities shall be conducted in accordance with the Excel4apps Privacy Policy (the “Privacy Policy”), a copy of which is available at https://www.excel4apps.com/privacy-notice/. Excel4apps reserves the right to update the Privacy Policy from time to time, and use of the Software following any update shall
constitute Customer’s acceptance thereof.
b. Excel4apps collects data to operate effectively and to provide the best experience with the use of the Software and Maintenance services. Some of this data is provided to us directly, such as when a website form or other form is completed and returned to us or when we are contacted to provided support. We get some of it by recording how you interact with our website by, for example, using technologies like cookies, and receiving error reports or usage data from our software running on your computer systems.
c. The data we collect depends on the version of the Software and the features used, and may include the following:
i. Name and email address. We may collect the name, email address and application username as well as the details of the Licenses that have been assigned to the Named Users.
ii. Usage data. We collect data about the SAP Landscape or Oracle Instance used such as the server URL, the database and application versions installed and used and whether or not the server has been flagged as a production environment. Data is also collected about the PC being used including the IP address, and data about the operating system, browser or other software used to connect to the server. It also may include data about the performance of the Software and any problems experienced with them. In some cases users will have the option to limit the usage data collected. When asked to provide personal data, users may decline. But if users choose not to provide the data or provide inaccurate data then the users may not be able to use some of the features or services.
9.2 Usage of the data
a. Excel4apps uses the data to improve and personalize the user experience. For example, if poor performance is noted we may do research, develop new features or new capabilities or recommend known performance improvement fixes to you. We also may use the data to communicate with you, for example, informing you about new software versions, or to provide product usage benchmark information to you or to provide related product information including promotional communications.
10. Indemnity
10.1 Excel4apps shall indemnify Customer against all claims, liabilities, and costs, including reasonable attorneys’ fees, reasonably incurred in the defense of any claim brought against Customer by third parties alleging that Customer’s use of the Software and Documentation infringes a copyright or trade secret (“Infringement Claim”) so long as the Customer promptly notifies Excel4apps in writing of any such claim and Excel4apps or its approved agent is permitted to control fully the defense and settlement of any
Infringement Claim as long as such settlement shall not include a financial obligation on Customer. Customer shall cooperate fully in the defense of any Infringement Claim and may appear, at its own expense, through counsel reasonably acceptable to Excel4apps, at any hearing relating to such Infringement Claim. Excel4apps may settle any Infringement Claim on a basis requiring Excel4apps to
substitute for the Software and Documentation an alternate, substantially similar non-infringing program(s) and supporting documentation. Customer shall not undertake any action in response to any Infringement Claim without Excel4apps’ prior written approval.
10.2 Notwithstanding the foregoing, the indemnity against an Infringement Claim shall not apply if:
a. the alleged infringement results from use of the Software in conjunction with any other software that causes the alleged infringement; or
b. Software and Documentation is not used as specified in the Documentation; or
c. Customer engages in activities outside of the scope of the License grant
10.3 The provisions of section 10 state the sole, exclusive, and entire liability of Excel4apps Entities to Customer, and is Customer’s sole remedy, with respect to any Infringement Claim.
11. Limitation of Liability
11.1 The Customer’s sole and exclusive remedies for any damages or loss in any way connected with the Software, Documentation, Materials or Maintenance furnished by Excel4apps and/or Excel4apps approved reseller shall be, depending on the concerned deficiency, at Excel4apps’ option:
a. bring the performance of the Software into substantial compliance with the Documentation; or
b. re-performance of any Maintenance or other services; or
c. if Excel4apps, in a commercially reasonable manner, cannot bring the performance of the Software into substantial compliance with the Documentation return an appropriate portion of any Fees paid by Customer with respect to the applicable portion of the Software or Maintenance or other services
11.2 Excel4apps will not be liable to Customer if
a. the Software is not used in accordance with the Documentation; or
b. the defect is caused by Customer, a Modification, third-party software, or third party database
11.3 Software is developed for general use in connection with information management applications only and is not intended for use in any inherently dangerous applications, including applications that may create a risk of personal injury. If Customer uses Software in dangerous applications, then Customer shall be responsible to take all appropriate fail-safe, backup, redundancy, and other measures to ensure Software’s safe use. Excel4apps, and its related Entities disclaim any liability for any claims or damages
arising from inherently dangerous use of the Software.
11.4 NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, EXCEPT FOR DAMAGES RESULTING FROM UNAUTHORIZED USE OR DISCLOSURE OF CONFIDENTIAL INFORMATION, UNDER NO CIRCUMSTANCES SHALL EXCEL4APPS OR THE RELATED EXCEL4APPS ENTITIES OR CUSTOMER BE LIABLE TO EACH OTHER OR ANY OTHER PERSON OR ENTITY FOR (a) AN AMOUNT OF DAMAGES IN EXCESS OF THE PAID LICENSE FEES;
OR (b) ANY AMOUNT FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, LOSS OF GOODWILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, OR EXEMPLARY OR PUNITIVE DAMAGES. IN NO EVENT SHALL EXCEL4APPS ENTITIES’ LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF THE LICENSE FEES AND MAINTENANCE FEES PAID BY CUSTOMER IN THE PRECEDING 12 MONTHS.
11.5 Except for actions for non-payment or breach of Excel4apps’ proprietary rights, no claim or action, regardless of form, arising out of or relating to this Agreement, the Software, Documentation, Materials or Maintenance may be brought by either party after more than two (2) years has accrued after the cause of action.
12. Assignment or Transfer
12.1 Excel4apps may assign or transfer any or all of its rights or ownership in the Software and in this Agreement to any third party with prior notice to Customer. Upon receiving such notice from Excel4apps, Customer agrees and undertakes to honor and fulfill all of its obligations on the terms and conditions set forth herein to such third party.
12.2 Customer may not transfer or assign any of its rights or obligations under this Agreement without the prior written consent of Excel4apps, except that with prior notification to Excel4apps, Customer may assign or delegate its rights or obligations to any entity that acquires all or substantially all of the equity of Customer. Any assignment in violation of this section 12.2 shall be null and void.
13. Confidentiality
13.1 The parties will keep confidential and will not, without the prior written consent of the other party, disclose to any person the terms of this Agreement, the details of the negotiations leading to this Agreement, the information handed over to the other party during the course of negotiations and the course of this Agreement, and any information of any nature whatsoever relating to the business or the operations and affairs of the other party (“Confidential Information”). Neither party shall use the name of the other party in publicity, advertising, or similar activity, without the written consent of the other, except that Customer agrees that Excel4apps may use Customer name in customer listing or as part of Excel4apps’ marketing efforts.
13.2 The parties agree to keep all Confidential Information confidential and not disclose it to anyone other than their officers, directors, employees, consultants, technicians and professional advisers who have a need to know (and then only to the extent that each such person has a need to know); and are aware that the Confidential Information shall be kept confidential; and are aware of the disclosing party’s undertaking in relation to such information in terms of this Agreement; and have been directed by the disclosing party to keep the Confidential Information confidential.
13.3 The obligations of the parties regarding the maintenance and non-disclosure of Confidential Information do not extend to information relating to this Agreement that at the time of such disclosure such information is known to be in the lawful possession or control of the receiving party and not subject to an obligation of confidentiality; is or becomes public knowledge, otherwise than pursuant to a breach of this Agreement by the party who discloses such Confidential Information; is required by the provisions of any law, statute or regulation, or during any court proceedings, or by the rules or regulations of any recognized stock exchange to be disclosed and subject to these provisions, the party required to make the disclosure has taken all reasonable steps to oppose or prevent the disclosure of and to limit, as far as reasonably possible, the extent of such disclosure, and has consulted with the other party prior to making such disclosure.
13.4 The obligations in this section 13 shall survive the termination or expiration of this Agreement and neither party shall at any time thereafter disclose any such Confidential Information until that Confidential Information has become public knowledge as a result of deliberate disclosure by the party to which such Confidential Information belongs.
14. Breach
14.1 Should the Customer:
a. breach any of the terms and conditions in this Agreement or Documentation and fail to remedy such breach within 30 business days after receipt of Notice (as hereinafter defined) from Excel4apps calling upon the Customer to do so; or
b. commit any act of insolvency, or attempt to compromise any of its creditors, or allow any judgement against it to remain unsatisfied for seven days, or be subject to a provisional or final order to liquidation or judicial management; or
c. in the case of the Customer being a natural person, his estate provisionally or finally sequestrated, or surrendered; or
d. do, or cause to be done anything which may prejudice Excel4apps’ rights under this Agreement; then
e. Excel4apps shall be entitled, in addition to and without prejudice to any other rights Excel4apps may have, Excel4apps may, in its sole discretion:
i. terminate this Agreement and recover such damages as Excel4apps may have sustained; and/or
ii. terminate the License Keys and the Customer’s rights to use the Software granted by this Agreement or the Documentation; and/or
iii. demand immediate payment of all outstanding fees, training charges, reimbursements and all such damages which Excel4apps shall have sustained by reason of the failure of the Customer to carry out and fulfill its obligations hereunder
14.2 Should Excel4apps breach any of the terms in this Agreement, or commit any act of insolvency, or attempt to compromise any of its creditors, or allow any judgement against it to remain unsatisfied for ninety days, or be subject to a provisional or final order to liquidation or judicial management, or cause to be done anything which may prejudice Customer’s rights under this Agreement, and fail to remedy the breach within 30 working days after receipt from Customer of Notice calling upon Excel4apps to do so then Customer by that breach shall be entitled, singularly and exhaustively to terminate this Agreement and recover such License Fees and Maintenance Fees that Customer may have paid to Excel4apps or Excel4apps approved reseller during the preceding 12 months.
15. General
15.1 Jurisdiction. This Agreement shall be governed and construed in accordance with the substantive and procedural laws of the state of New South Wales, Australia, without reference to its conflict of laws principles and the parties agree to submit to the exclusive jurisdiction of, and venue in, the courts of that state in any dispute arising out of or relating to this Agreement.
15.2 Notices. Notices shall be deemed to have been duly given seven (7) days after posting, if emailed to the party’s email address or upon delivery if delivered to the party’s physical address as specified below:
a. Customer: You. Email: The Email address the license keys are supplied to.
b. Excel4apps: Excel4apps Pty Ltd, Suite 40,23 Narabang Way, Belrose, NSW, 2085 Australia. Tel +61 2 8968 9303, Fax +61 2 8968 9313. Email: [email protected]
15.3 Force Majeure. Any delay or non-performance of any provision of this Agreement or Documentation (other than for the payment of amounts due hereunder) caused by conditions beyond the reasonable control of the performing party shall not constitute a breach of this Agreement, and the time for performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance.
15.4 No Waiver. If either party should waive any breach of any provision of this Agreement, it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision hereof.
15.5 Regulatory Matters. The Software, Documentation and Materials are subject to the export control laws of various countries, including without limitation the laws of the United States, Australia, United Kingdom, and South Africa. Customer agrees that it will not submit the Software, Documentation or other Materials to any government agency for licensing consideration or other regulatory approval without the prior written consent of Excel4apps, and will not export the Software, Documentation and/or Materials to countries, persons or entities prohibited by such laws. Customer shall also be responsible for complying with all applicable governmental regulations of the country where Customer is registered, and any foreign countries with respect to the use of the Software, Documentation or Materials by Customer.
15.6 Survival. Any provision of this Agreement that imposes an obligation after termination, cancellation or expiration of this Agreement shall survive the termination or expiration of this Agreement.
15.7 Entire Agreement. Customer agrees that this Agreement and the information which is incorporated into this Agreement by written reference, together with the Documentation, Materials and applicable Invoice, are the complete agreement for the Software and/or Maintenance ordered by Customer, and that this Agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such Software and/or Maintenance. If any term of this Agreement or Invoice is found to be invalid or unenforceable, the remaining provisions will remain effective. This Agreement and any Invoices may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted online by authorized representatives of Customer and of Excel4apps. Any Notice required under this Agreement shall be provided to the other party in writing as set forth herein.
15.8 Counterparts. This Agreement may be signed in two counterparts, each of which shall be deemed an
original and which shall together constitute one Agreement.