Software License Agreement for Add-On Software products developed by Fenwick for Microsoft Dynamics NAV, and for Apps developed for Dynamics 365 Business Central.
1. Agreement
1.1 These license terms and conditions are an agreement between Fenwick Software Pty Ltd “Fenwick” and you, as and identified as the Licensee in this Software Agreement “Agreement”.
1.2 By paying the License Fees required by Clause 4 and using the software you accept and are bound by the terms and conditions of this Agreement.
2. License
2.1 The Licensed Software and any documentation that accompanies the Licensed Software are and remain the proprietary property of Fenwick.
2.2 Your rights in the Licensed Software are limited to those expressly granted in the Agreement. Fenwick reserves all rights and licenses in and to the Licensed Software not expressly granted to you under this Agreement.
2.3 Subject to the terms and conditions of this Agreement, Fenwick hereby grants to you a personal, non-transferable, non-exclusive license to use the Licensed Software pursuant to the terms of this Agreement.
3. Permitted use of the Licensed Software
3.1 The Licensed Software may be used by you for your internal business purposes only.
3.2 You are permitted to give access to your directors, employees, external consultants or other authorised personnel engaged by you. Those persons are subject to the terms of this Agreement. You remain fully responsible and liable for the compliance with this Agreement for all persons it provides access.
3.3 If purchasing a Perpetual License for Microsoft Dynamics NAV, you are permitted to modify and otherwise change the Object Code of the Licensed Software “Modifications and Enhancements” provided you have first obtained the relevant certification from Microsoft or are employing a Microsoft Certified Partner.
3.4 You are permitted to make copies of the Licensed Software for backup or archival purposes only.
4. License Fees
4.1 In consideration for granting the license of the Licensed Software you will pay Fenwick an agreed license fee “License Fee”.
4.2 If purchasing a Perpetual License for Microsoft Dynamics NAV, you also agree to pay Fenwick an annual maintenance fee “Maintenance Fee” for continued use of the Licensed Software. By paying the Maintenance Fee, you will be entitled to updated copies of the Licensed Software which may be available from time to time. If you have purchased a Subscription license for Microsoft Dynamics NAV or Microsoft Dynamics 365 Business Central, the Maintenance Fee is included in the Monthly or Annual Subscription payment.
5. Term of the Licence
5.1 The term of this Software Licence is continuing unless otherwise terminated in accordance with this Agreement.
6. Intellectual Property Rights
6.1 “Intellectual Property” means all intellectual property recognised by legislation and / or by any convention or treaty and also includes product, ideas, design concepts, product designs (whether registered or not), trademarks, copyright and rights in the nature of copyright, patents and any rights under licence or agreement relating to any of the foregoing.
6.2 Fenwick retains full title to the Licensed Software (including all Modifications and Enhancements). All Intellectual Property in and to the Licensed Software, including all Modifications and Enhancements remain vested in Fenwick.
6.3 You will ensure that all users as well as any third parties prior to being granted access to the Licensed Software or its source texts in accordance with this Agreement, accept and respect the Intellectual Property rights of Fenwick.
7. Third Party Rights Infringement
7.1 If a third party objects to your use of the Licensed Software in accordance with this Agreement, claims you have infringed any Intellectual Property rights of a third party or misappropriated any trade secret “Infringement Claim”, Fenwick shall defend you against that Infringement Claim and shall pay all reasonable costs, damages and legal fees finally awarded by a court, provided that you immediately:
7.1.1 notify Fenwick of the Infringement Claim in writing immediately you become aware of such Infringement Claim;
7.1.2 allow Fenwick to fully control the defence and any related settlement negotiations; and
7.1.3 co-operate with Fenwick in the defence and any related settlement negotiations by providing Fenwick with the appropriate information and assistance required for such defence or settlement.
7.2 In the event of an Infringement Claim, Fenwick shall be entitled to either
7.2.1 obtain the right for you to continue to use the Licensed Software;
7.2.2 bring the infringement to an end by modifying the Licensed Software or replacing the Licensed Software with other software which has essentially and materially the same functions and functionality as the Licensed Software in question; or
7.2.3 terminate this Agreement with written notice and pay to you an amount equal to the paid License Fee.
7.3 The obligations of Fenwick under this clause do not apply to the extent any claim or adverse final judgment is due to:
7.3.1 Your use of the Licensed Software after you are notified by Fenwick to discontinue use;
7.3.2 Modifications and Enhancements, or any other alteration by you; and/or
7.3.3 You having breached a term of this Agreement.
8. Warranty
8.1 The Licensed Software is a standard product, and it shall be your sole responsibility to ensure that the Licensed Software’s functions comply with your requirements.
8.2 Fenwick warrants that it has the right to license the Licensed Software to you and your use of the Licensed Software will not infringe any rights including Intellectual Property Rights of any third party.
8.3 Fenwick warrants to you that the Licensed Software in its unmodified form will perform in all material respects in accordance with accompanying user materials “Related Materials” for a period of ninety (90) days from the date you receive the Licensed Software.
8.4 If within the ninety (90) day period you provide written notice to Fenwick that the Licensed Software does not perform in material conformance with the Related Materials, Fenwick shall either:
8.4.1 deliver, free of charge, a new version of the Licensed Software that complies with the Related Materials;
8.4.2 rectify the Licensed Software to conform with the Related Materials at no charge; or
8.4.3 refund the license fee paid by you for the Licensed Software.
8.5 Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
9. Indemnity
9.1 You indemnify and hold harmless Fenwick against any loss, claim, action, settlement, award, judgment, expense or damage that Fenwick might suffer as a result of your use of the Licensed Software.
10. Limitation of Liability
10.1 To the full extent permitted by law and subject to Clause 8.5:
10.1.1 Fenwick’s liability howsoever arising under this Agreement is limited to the obligations under Clause 8.4 and Clause 15.2 and you cannot make any other claim against Fenwick in relation to the Licensed Software;
10.1.2 All liability for indirect and consequential loss including without limitation the loss or corruption of the Licensed Software, loss of revenue, loss of profits and any other commercial or economic loss of any kind arising from this Agreement is specifically excluded.
10.2 You agree and acknowledge that all liability for indirect and / or consequential loss is not considered reasonably foreseeable loss or damage.
11. Termination
11.1 If you breach any of the terms in this Agreement, Fenwick may at any time immediately terminate this License.
11.2 On termination, all rights granted to you under these Terms will immediately cease and you must immediately return all Licensed Software to Fenwick.
11.3 Where this Agreement is terminated, the parties agree that the terms set out in Clause 6 (Intellectual Property Rights), Clause 9 (Indemnity), Clause 10 (Limitation of Liability), Clause 11 (Termination) and Clause 14 (interpretation) will continue to be binding.
12. Dispute Resolution
12.1 If any dispute arises in relation to this Software Licence and Services Agreement, the parties must attempt to resolve the dispute in good faith.
12.2 If the parties are unable to resolve the dispute, the parties may jointly appoint an Arbitrator to resolve the dispute. In the event the parties are unable to agree on the appointment of an Arbitrator, one will be appointed by the Law Institute of Victoria.
12.3 Where an Arbitrator has been appointed, the decision of the Arbitrator is final and binding on the parties.
12.4 The parties must bear the costs of the determination in such manner as the Arbitrator directs.
13. Notices
13.1 A notice required or permitted to be given under this Agreement shall be in writing and shall be treated as being duly given and received if it is delivered personally to that other party, left at that other party’s address, sent by pre-paid mail to the other party’s address or transmitted by facsimile or email to that other party.
13.2 For the purposes of this clause, unless otherwise notified by either Fenwick or you, the address of each party to this Agreement is:
13.2.1 You: the address to which the Tax Invoice for the License Fee was sent.
13.2.2 Fenwick: the registered address appearing on the Tax Invoice.
14. Interpretation
14.1 Entire Understanding
14.1.1 This Agreement represents the entire understanding between Fenwick and you as to the subject matter contained in it and none of the terms can be waived or modified except by an express agreement in writing signed by all parties.
14.1.2 All previous agreements, representations, warranties, explanations and commitments, expressed or implied, affecting this subject matter are superseded by this Agreement and have no effect.
14.2 Severance
14.2.1 If any clause or sub-clause of this Agreement is held to be illegal, invalid, void, voidable or unenforceable, that provision must be read down to the extent necessary to ensure that it is not illegal, invalid, void, voidable or unenforceable.
14.3 Governing Law
14.3.1 This Software Licence and Services Agreement takes effect, is governed by and shall be construed in all respects in accordance with the laws from time to time in the State of Victoria. The parties hereto submit to the non-exclusive jurisdiction of the Courts of the State of Victoria in respect of any matter or thing arising out of this Contract.
14.4 Headings
14.4.1 Headings and sub-headings are inserted for ease of reference only and do not affect the interpretation of this Licence.
15. Additional Warranty
15.1 In addition to the warranty provided under Clause 8.3, Fenwick further warrants that the Licensed Software (or updated version of the Licensed Software) in its unmodified form will not contain any Bug for a period of 12 months from the later of:
15.1.1 The date of issue of the Licensed Software; or
15.1.2 The date of issue of an updated version of the Licensed Software.
15.2 Subject to Clause 15.3 and Clause 15.4 and in addition to the obligations under Clause 8.4, to the extent there is a Bug in the Licensed Software (or updated version of the Licensed Software) to which Clause 15.1 applies, Fenwick will upon reasonable written request:
15.2.1 investigate any reported Bug in the Licensed Software (or updated version of the Licensed Software) to identify the Bug free of charge; and
15.2.2 to the extent the Bug can be fixed, supply and install a correction to the Bug for you free of charge; or
15.2.3 to the extent a correction is not available under Clause 15.2.2, to refund any fees paid to Fenwick that relate to the use of the Licensed Software (or updated version of the Licensed Software) for the remaining period of the Licence.
15.3 The obligations under Clause 15.2.2 do not extend to the correction or restoration of data as a result of a Bug in the Licensed Software (or updated version of the Licensed Software).
15.4 The additional warranty provided in Clause 15.1, only applies:
15.4.1 to the extent there are any bugs in the Licensed Software (or the updated version of the Licensed Software) that arise as a direct result of or from the Licensed Software; and
15.4.2 to the extent the Licence Fee and / or Maintenance Fee has been paid within the previous 12 month period.
15.5 For the purpose of this Clause 15, “Bug” is defined as the Licensed Software (or updated version of the Licensed Software) not meeting its specifications and excludes the absence of non-specified functionality in the Licensed Software (or updated version of the Licensed Software).