Software Agreement

www.eptglobal.com

"Engineering Solutions for a Sustainable Future"
1. BACKGROUND
The Client has requested and EP&T Pty Ltd (“EP &T”) has agreed to provide the Licensed Software on the terms and conditions outlined in this agreement and, in addition, the EP & T Proposal which also encompasses EP&T’s General Terms & Conditions (EP &T T&C’s ).

2. DEFINITIONS 
In this Agreement:

“Authorised Users” means the number of people authorised to use the Licensed Software on behalf of the Client under this Agreement.

“Business Day” means a day on which banks are open for business other than a Saturday, Sunday or Public holiday.

“Business Hours” means 8.00 am until 17.00 pm.

“Designated Product Specialist” means a person appointed by the Client to liaise with EP&T in relation to the Licensed Software.

“Documentation” means all operating manuals and other printed materials relevant to the use of the Licensed Software including users’ manuals, programming manuals, modification manuals, flow charts, drawings and software listings.

“EP&T T&C’s” means the General Terms & Conditions which were attached to the original Proposal.  

“Excess Fee” means the fee payable by the Client to EP&T for any user of the Licensed Software above the number of Authorised Users, as set out in the Proposal.

“Fees” means any amount payable by the Client to EP&T for the Licensed Software.  

“Initial Term” means the period specified in the Proposal.

“Licence Conditions” means the conditions of grant and use of the Licence as set out in clause 6.1.

“Licensed Software” means the software specified in the Proposal and any enhancement, modification, update or new release of the software or part thereof.

“Products” means Hardware provided by EP & T which will enable data to be captured and stored. These may include but not limited to the following products ((Memory Module / Meters (g3 and g4) / SmartCom) which may be protected by Trademarks.

“Property” means the Client’s property set out in the Proposal.  

“Proposal” means the EP&T proposal for the Licensed Software and setting out, among other things, the relevant Fees, Support Charges, Term and Authorised Users.  

“Schedule” means the Schedule attached to the Proposal as amended from time to time.

“Support Charges” means the charges specified in the Proposal, which are payable by the Client to EP&T as set out in the EP&T T&C’s.

“Support Services” means the support services referred to in clause 10.

“Term” is defined in clause 3.2.

3. GRANT TERM OF LICENCE 
3.1 Grant for Initial Term

In consideration of the payment of the Fees and subject to the other terms of this agreement, EP&T grants to the Client, and the Client accepts from EP&T, a non-exclusive, non-transferable licence to use the Licensed Software to monitor the Property, under the conditions of this agreement, from the date of this agreement until expiry of the Initial Term or Term, as the case may be (Licence).
       
3.2 Extension of Initial Term
(a)(Notice): The Client must provide EP&T at least 30 days’ notice in writing prior to the expiry of the Initial Term if it wishes to extend the Licence.  

(b)(EP&T’s Discretion): Upon the Client requesting an extension to the Initial Term, EP&T will provide a proposal with the Fees for the Term of the extension. Upon the Client placing an order for same, EP&T will extend the Licence beyond the Initial Term, on the terms and conditions of this agreement or other terms, as agreed between the parties in writing (Term).

4. DOCUMENTATION
4.1 Licence of Documentation
EP&T grants the Client a non-exclusive, non-transferable licence to use the Documentation in connection with the Licensed Software, for the duration of the agreement.

4.2 No Copying of Documentation
The Client must not copy or reproduce the Documentation except to the extent otherwise authorised by this agreement.

5. FEES
The Client must pay the Fees at the time and in the manner set out in the EP&T T&C’s.   

6. LICENCE CONDITIONS
6.1 Use of Licensed Software
The grant of the licence to the Client is subject to, and the Client must use the Licensed Software in accordance with, the following terms and conditions (Licence Conditions):

(a)(Use of Software): The Client must use the Licensed Software in accordance with the Documentation, EP&T’s instructions and the normal operating procedures as notified by EP&T.

(b)(Authorised Users): The number of users of the Licensed Software must not exceed the number of Authorised Users. [If the number of users at any time and for any reason exceeds the number of Authorised Users, the Client must pay EP&T the Excess Fee at the time and in the manner set out in the EP&T T&C’s.]

(c)(No transfer): The Client must not transfer, assign, sell, grant, sub-licence or otherwise deal with the Licence, Licensed Software or Documentation without the prior written consent of EP&T.

(d)(Leave as is): The Client must not copy, reverse engineer, alter, modify, reproduce, translate, decompile, disassemble, remove parts of, create or develop any derivative work based on the Licensed Software or Documentation.

(e)(Designated Product Specialist): The Client must appoint a Designated Product Specialist to be available at all times during the period of this agreement or any extension of it.

(f)(Products) The Client will respect the all the rights of EP & T associated with the Products  

6.2 Remedies for Misuse
In addition to any other remedies available to EP&T under this agreement or otherwise, any breach of the Licence Conditions will entitle EP&T to any available equitable remedy against the Client.

6.3 Acknowledge of the Company Ownership
The Client acknowledges that there is no transfer of title or ownership to the Client of the Licensed Software or the Documentation.

7. SECURITY
7.1 Supervision
The Client is solely responsible for the use, supervision, management and control of the Licensed Software and Documentation.

7.2 Protection
The Client must protect the Licensed Software at all times from misuse, damage, destruction, unauthorised use or any conduct which may constitute a breach of the Licence.

8. TRAINING
EP&T must provide the Client training at the cost and on the conditions as agreed in writing between the parties. The Client must pay any training Fees at the time and in the manner set out in the EP&T T&C’s.

9.SUPPORT SERVICES
9.1 Provision of Support Services
(Conformity with documentation): EP&T must provide such Support Services as it considers necessary at its sole discretion in order to ensure that the Licensed Software operates in conformity with the Proposal.

9.1.1(Form of Support): The Support Services provided by EP&T consist of telephone advice available during Business Hours during the Initial Term and Extension of the Initial Term

9.1.2(Other Support): Any additional Support Services, including on-site support, will be provided at rates advised to the Client prior to the provision of the Support Services, unless otherwise agreed between the parties in writing. 

9.1.3(Trained Staff): The Support Services will be provided by suitably trained staff familiar with the operation, maintenance and support of the Licensed Software as soon as practicable after requested during the Business Hours.

9.1.4(Client Co-operation): The client must co-operate with EP&T and provide all information, facilities, assistance and accessories reasonably required by EP&T to enable EP&T to comply with its obligations under this agreement, including by ensuring EP&T’s support personnel have full and safe on-site access to the Licensed Software and the relevant equipment at all reasonable times for the purpose of providing the Support Services.  

9.2 Exclusions from Support Services
Support Services to be provided by EP&T under this agreement do not include: 

9.2.1(Errors or defects): Correction or rectification of errors or defects caused by:  
9.2.2(Breach of Licence Conditions): Breach of the Licence Conditions; 
9.2.3(Qualified staff): Failure of the Client to provide suitably qualified and adequately trained operating and programming staff for the operation of the Licensed Software;
9.2.4(Trained staff): Training of operation of programming staff;
9.2.5(Faulty equipment): Rectification of equipment fault;
9.2.6(Maintenance): Equipment maintenance;
9.2.7(Faults not associated with Software): Diagnosis of rectification of faults not associated with the Licensed Software.

9.3 Support Charges

The Client must pay the Support Charges at the time and in the manner specified in the EP&T T&C’s.

10. UPDATES AND NEW RELEASES

10.1 No Obligation
EP&T is under no obligation to provide updates or new releases of the Licensed Software.

10.2 Customer Assistance
The Client will provide EP&T with all reasonable assistance in the event that EP&T wishes to provide an update or new release of the Licensed Software.

10.3 Cost
The cost of EP&T providing an update or new release of the Licensed Software will be charged by EP&T to the Client as a Support Charge in accordance with this agreement.

11. TAXES

11.1(Tax Exclusive): Unless expressly included, the consideration for any supply under or in connection with this agreement does not include any consumption / value added tax. 

11.2(Increase Payment): To the extent that any supply made under or in connection with this agreement is a taxable supply, the consideration for that supply is increased by an amount equal to the amount of that consideration multiplied by the rate at which the relevant tax is imposed in respect of the supply. 

11.3(Invoice): The supplier must provide to the recipient a tax invoice as required by the relevant legislation.

12. TERMINATION
12.1 (Notice): Without limiting the generality of any other clause in this agreement, EP&T may terminate this agreement immediately by notice in writing if:

12.1.1(Breach of agreement): The Client is in breach of any term of this agreement and such breach is not remedied within 20 Business Days of notification by EP&T; and/or

12.1.2(Destruction, disposal or loss): The Client for any reason destroys or disposes of or loses custody of the Licensed Software.

12.1.3(Additional Remedies): If notice is given to the Client pursuant to the relevant clause EP&T may, in addition to terminating the agreement:

12.1.4(Repossession): Repossess any copies of the Licensed Software and Documentation in the possession, custody or control of the Client;

12.1.5(Discharged from obligation): Be regarded as discharged from any further obligations under this agreement; and 

12.1.6(Additional/alternative remedies): Pursue any additional or alternative remedies provided by law.

13. Consequences of Termination
13.1(Effect of termination): Termination of this agreement will not prejudice any rights or claims that any party may have accrued against the other up to the date of termination.
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