BorderWise Application Suite (BorderWise) Terms and Conditions
(Version 4.0 - 15-Nov-17)
A 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.
WiseTech 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).
5. 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 or www.BorderWise.com/Pricing 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.
6. Use of BorderWise
You may 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, reverse compile, decrypt or in any way derive source code form BorderWise; 3)_modify, translate, adapt, alter 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 whatever; 6) use, extract or consume any of the data, 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 whatever, including but not limited to the network and/or PC upon which BorderWise is installed or accessable, 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.
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:
(a) 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
(b) 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.
For the 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:
(a) information that is already in the public domain;
(b) 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
(c) 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.
9. Ownership of Intellectual Property
All Intellectual Property Rights in BorderWise are the sole and absolute property of WTG, throughout the world.
For the purposes of this clause 9 (Use of BorderWise), Intellectual Property Rights means:
(a) 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;
(b) 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
(c) any rights to assignment or registration of such rights, whether created before, on or after the date of commencement in accordance with clause 2 (Agreement).
10. 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.
(a) 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.
(b) 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:
(i) being a natural person, breach WTG’s Intellectual Property Rights or permit or suffer unauthorised access to BorderWise or the Confidential Information;
(ii) 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 Confidential Information;
(iii) become, threaten or resolve to become or are in jeopardy of becoming subject to any form of insolvency, bankruptcy or administration;
(iv) being a partnership, corporation, limited liability company or other legal entity, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;
(v) being a natural person, become a bankrupt or die;
(vi) cease or threaten to cease conducting business in the normal manner;
(vii) fail to make a payment to WTG of Monthly Fees as specified in this Agreement; or
(viii) breach an obligation in this Agreement and the breach has a material adverse effect on WTG as determined by WTG in its sole discretion.
(c) 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.
13. Compliance with Legislative Requirements
You agree to comply with all applicable laws in connection with your use of BorderWise under this Agreement.
14. Entire 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.
15. Governing Law
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.