Application Suite (BorderWise) Terms and Conditions
6 - 23-Feb-18)
license for BorderWise (License) is offered to you in accordance with
the terms and conditions specified in this BorderWise License Agreement (Agreement).
PLEASE READ THE TERMS AND CONDITIONS
CAREFULLY AND IN THEIR ENTIRETY. BY CLICKING THE “ACCEPT” BUTTON, YOU (BEING
EITHER A NATURAL PERSON OR A CORPORATE ENTITY) ACKNOWLEDGE AND AGREE THAT YOU
ACCEPT THESE TERMS AND CONDITIONS INCLUDING THAT THIS AGREEMENT IS VALID,
BINDING AND ENFORCEABLE IN ACCORDANCE WITH ITS TERMS AGAINST YOU. WHERE YOU ARE
A NATURAL PERSON EXECUTING THIS AGREEMMENT ON BEHALF OF A CORPORATE ENTITY, YOU
HEREBY REPRESENT AND WARRANT THAT YOU ARE DULY AUTHORISED AND HAVE FULL AUTHORITY
AND POWER TO ENTER INTO THIS AGREEMENT AND BIND THAT CORPORATE ENTITY TO THE
TERMS AND CONDITIONS OF THIS AGREEMENT. DO NOT PROCEED IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS WITHOUT QUALIFICATION OR MODIFICATION.
Global Limited (WTG) grants you a non-exclusive, non-transferable and
non-assignable license to use BorderWise in accordance with the terms and
conditions of this Agreement (Permitted Purpose). You agree to procure
that any person within your organisation who accesses BorderWise (irrespective
of how it is accessed) does so only for the Permitted Purpose and otherwise
complies with the terms of this Agreement. BorderWise is owned by WTG.
It is the subject of copyright and is provided only under license. Your rights
in relation to BorderWise are limited to those specifically granted in clause 6
(License). This Agreement does not grant or assign to you any other
legal or equitable title or right in BorderWise. For the avoidance of doubt, BorderWise
includes all original programs for both Web and Desktop and all whole or
partial copies of either, including portions merged into any other programs.
This Agreement will commence on
the date it is accepted in accordance with clause 2 (Agreement) and
continue until such date that it is terminated in accordance with clause 12 (Termination).
Payment of Fees
In consideration for WTG
granting you the License to use BorderWise for the Permitted Purpose, you agree
to pay WTG the Monthly License Fees set out in the BorderWise price list
available on request from WTG customer service or from www.wisetechglobal.com/BorderWisePricing
unless payment is otherwise agreed as part of your
Products and Services Agreement with WTG.
All Fees shall be due at the end of the month in
which the Monthly Fees were accrued and payable fourteen (14) days from the date of any invoice. Any Monthly Fee may be reviewed by WTG
periodically and the fee payable by the Customer for the period following each review shall be as determined by WTG.
WTG shall notify the Customer of any change in the fees thirty (30) days prior to the effective date of the change.
Use of BorderWise
not and may not permit others to: 1) use, copy, merge, or transfer BorderWise
except as specified in this Agreement; 2) reverse engineer, reverse assemble, decompile,
reverse compile or decrypt BorderWise, or in any way derive source code form BorderWise;
3) modify, translate, adapt or alter any content, structure or file architecture, or create any derivative works from
BorderWise; 4) distribute, publicly display, sell, rent, lease or otherwise
exploit BorderWise; 5) supply, provide copies, sub-lease, loan or give access
to BorderWise to any third party under any circumstances whatsoever; 6) use,
extract or consume any of the data, libraries, file architecture, manuals, training materials, documents,
indexes or content embedded in or presented by BorderWise (together with clause
8, the Confidential Information) other than via the user interface
provided in BorderWise to an authorised licensee of BorderWise being a person
or entity that has agreed to the terms of this Agreement or 7) allow access in
any form whatsoever, including but not limited to the network and/or PC upon
which BorderWise is installed or accessible, to any person or entity associated
directly or indirectly with a competitive product, replacement product or
management, development or design process that is intended to create an
alternative or replacement to BorderWise or the Confidential Information embedded
or presented by BorderWise.
is supplied “AS IS”, WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK ARISING OUT OF USE OR
PERFORMANCE OF BorderWise REMAINS WITH YOU.
You agree to:
keep the terms of this Agreement and all Confidential Information
(as defined by this clause 8 (Confidentiality) and clause 6 (License)
above), confidential and secure at all times; and
not use, disclose, or permit the use or disclosure of, the terms
of this Agreement or any part of the Confidential Information to any third
party, other than for the purpose of properly exercising your rights or
discharging your obligations under this Agreement or any applicable law.
purposes of this clause 8, Confidential Information means, in relation to a
party (Disclosing Party), any information of whatever kind disclosed or
revealed by the Disclosing Party to the other party (Receiving Party),
including disclosure on any social media, discussion platform or other public
or semi-public forum, relating to the Disclosing Party and obtained by the
Receiving Party, under or in relation to this Agreement that is by its nature
confidential, is designated by the Disclosing Party as confidential or the
Receiving Party knows or ought to know is confidential, including Materials,
but excluding the following:
information that is already in the public domain;
information which subsequently becomes part of the public domain
other than as a result of an unauthorised disclosure by the receiving Party or
its representatives; or
information which is or becomes available to the receiving Party
from a third party who is legally entitled to possess and provide the
information to the receiving Party without a confidentiality restriction.
Ownership of Intellectual Property
All Intellectual Property
Rights in BorderWise are the sole and absolute property of WTG, throughout
For the purposes of this clause
9 (Use of BorderWise), Intellectual Property Rights means:
all rights in copyright, trade mark, design, letters patent,
patent, semiconductor or circuit layout rights, registered designs, design
rights, invention, discovery, trade secret, know-how, concept, idea
information, data, algorithm, formula, rights in computer programs, firmware,
microcode, other computer software and data, and other similar proprietary
rights under the laws of any jurisdiction throughout the world;
all intangible rights and privileges of a nature similar to such
rights, whether or not registered, including all granted registrations and all
application for registrations under the laws of Australia or of any
jurisdiction throughout the world; and
any rights to assignment or registration of such rights, whether
created before, on or after the date of commencement in accordance with clause
Limitation of Liability
WTG WILL NOT BE LIABLE FOR ANY
SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES OR FOR ANY ECONOMIC CONSEQUENTIAL
DAMAGES (INCLUDING LOST PROFITS OR SAVINGS) OR AT ALL IN CONNECTION WITH THIS
AGREEMENT, EVEN IF WTG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER
WTG WILL NOT BE LIABLE FOR 1) LOSS OF, OR DAMAGE TO, YOUR RECORDS OR DATA OR 2)
ANY DAMAGES CLAIMED BY YOU BASED ON ANY THIRD PARTY CLAIM OR AT ALL.
You will indemnify WTG against
any claim, action, damage, loss, liability specified herein, cost, charge,
expense, outgoing or payment which WTG may pay, suffer or incur, or be liable
for, in respect of, in connection with, or in any way arising out of, the acts
or omissions by you in relation to the performance of your obligations under
this Agreement or use of BorderWise.
In the event that you wish to terminate the License, you shall
give WTG written notice of your intention to terminate and that termination
shall become effective 30 calendar days from the end of the month in which
notice of termination was received by WTG.
WTG may terminate this Agreement immediately by disabling your
access to the License and provide a notice on any attempt to access
BorderWise, if you:
being a natural person, breach WTG’s Intellectual Property Rights
or permit or suffer unauthorised access to BorderWise or the Confidential
being a partnership, corporation, limited liability company or
other legal entity, any member of your organisation, breaches WTG’s Intellectual
Property Rights or permits or suffers unauthorized access to BorderWise or the
become, threaten or resolve to become or are in jeopardy of
becoming subject to any form of insolvency, bankruptcy or administration;
being a partnership, corporation, limited liability company or
other legal entity, dissolves, threatens or resolves to dissolve or is in
jeopardy of dissolving;
being a natural person, become a bankrupt or die;
cease or threaten to cease conducting business in the normal
(vii) fail to
make a payment to WTG of Monthly Fees as specified in this Agreement; or
an obligation in this Agreement and the breach has a material adverse effect on
WTG as determined by WTG in its sole discretion.
Without limiting its rights under clause 12(b) above, WTG may also
terminate this Agreement and the License for convenience by providing 30 calendar
days prior written notice of such termination.
The obligations in clauses 6 (Use of BorderWise) and 8 (Confidentiality) survive the
termination or expiration (for any reason) of this Agreement, as do any rights and
remedies that have accrued prior to termination.
Compliance with Legislative Requirements
You agree to comply with all
applicable laws in connection with your use of BorderWise under this Agreement.
This Agreement constitutes the entire
Agreement between the parties relating to its subject matter. Any prior
arrangements, agreements, representations or undertakings are superseded. You
warrant that you have not entered this Agreement based on any warranties,
representations, specifications, documentation, demonstration or advertising
material other than as specified in this Agreement. No amendment to this
Agreement will be valid except in writing signed by the parties.
This Agreement shall be governed by and construed in
accordance with the laws of New South Wales, Australia. The parties submit to
the exclusive jurisdiction of the courts in that state.