WineBanq distribution permissions and end-user license agreement
LICENSE AGREEMENT FOR WINEBANQ CELLAR SOFTWARE
This License Agreement ('Agreement') is between you ('Licensee') and JUSTIN MARTIN, as licensor ('JM'). This Agreement authorises the Licensee to use a copy of WINEBANQ CELLAR MANAGEMENT SOFTWARE and any accompanying documentation ('Licensed Software') under the terms and conditions set forth below.
1. GRANT OF LICENSE AND FEES
1.1 Pursuant to this Agreement, JM grants the Licensee a non-exclusive and non-transferable limited license ('license') to use the Licensed Software for one computer for which the corresponding license fees and payments (if any), as specified on JM's website ('license fees'), have been paid. For this purpose the Licensee may install the Licensed Software on the local hard disk or other permanent storage media of one (1) computer. Any other use is strictly prohibited. Multiple unauthorized installations may result in the license being cancelled.
1.2 The Licensee may not copy (other than make a reasonable number of copies of the Licensed Software on magnetic media for archival back-up purpose only), modify, create derivative works, transfer, rent, lease, or sublicense the Licensed Software.
1.3 The Licensee may not reverse engineer, decompile, or disassemble the Licensed Software, except and only to the extent that such activity is expressly permitted by the law of the state of New South Wales ('applicable law').
1.4 The Licensee must pay to JM the license fees (if any) at the rate and in the manner specified in JM's website.
2. INTELLECTUAL PROPERTY
2.1 The Licensee acknowledges that the Licensed Software contains intellectual property rights. The Licensee shall not during or any time after the expiry or termination of this license permit any act which infringes that intellectual property and, without limiting the generality of the foregoing, the Licensee specifically acknowledges that it may not copy the program or tasting notes except as otherwise expressly authorised by this license.
2.2 The Licensee acknowledges and agrees that the Licensed Software is confidential and copyrighted. Title to the Licensed Software and all associated intellectual property rights, including but not limited to copyright and other proprietary rights therein, are owned and retained by JM (and/or its affiliated companies or licensors, as the case may be). This obligation survives termination of this Agreement.
2.3 Aspects of the Licensed Software, including the specific design and structure of individual programs and the composition of the whole, constitute trade secrets and/or copyrighted material of JM (and/or its licensors). The Licensee must not on behalf of itself, or permit others, to disclose, provide or otherwise make available such trade secrets or copyrighted material in any form to any third party without the prior written consent of JM. The Licensee must agree to implement reasonable security measures to protect such trade secrets and copyrighted material.
2.4 Any documentation or other information accompanying the Licensed Software may not be copied under any circumstances regardless of the media on which it is stored. Additional copies of such documentation may be acquired from JM.
2.5 The Licensee must notify JM immediately, in writing, of any actual, disputed or anticipated infringement of any intellectual property rights connected with the Licensed Software.
3. TERMINATION OF LICENSE
3.1 This Agreement is effective from the first day the Licensee installs the Licensed Software and remains in force provided that:
(1) the Licensee remain in full compliance with the terms and provisions of this Agreement; and
(2) the Licensee pays the license fees (if any) applicable to the Licensed Software in a timely manner.
3.2 the Licensee's license automatically and immediately terminates without notice if the Licensee fails to comply with any provision of this Agreement. Upon such termination the Licensee must destroy the Licensed Software (including all copies thereof).
3.3 The Licensee may terminate this Agreement at any time by destroying the Licensed Software.
3.4 In addition to the above, JM may terminate this Agreement on thirty (30) days notice to the Licensee without the necessity of ascribing a reason therefor and without incurring any liability whatsoever.
4. RISK AND TITLE
4.1 Risk of loss or damage to the Licensed Software passes to the Licensee on delivery.
4.2 The Licensee does not acquire any rights connected with the Licensed Software other than those specified in this Agreement
5. TRADEMARKS AND LOGOS
5.1 Trademarks involving the word 'JM', trademarks which are registered by JM or its affiliates, and any trademarks, logos, and icons appearing on the Licensed Software shall remain the sole and exclusive property of JM (or one of its associated companies or JM's licensors, as the case may be) and the Licensee shall acquire no right whatsoever to such trademarks.
6. LIMITED WARRANTY
6.1 JM warrants that the Licensed Software is furnished to be free from defects in materials and workmanship under normal use for a period of thirty (30) days from the date of delivery to the Licensee. This warranty is granted to the Licensee as the original acquirer. It is not transferable.
6.2 The warranty contained in clause 6.1:
(1) is subject to the Licensee having fully complied with its obligation under this Agreement;
(2) is not a warranty that the results obtained from the Licensed Software will be in accordance with the Licensee's expectations and requirements; and
(3) does not operate where substantial non performance arises in any respect from the installation of the Licensed Software by the Licensee, the nature or operation of the equipment on which the Licensed Software is installed or the use of any materials or software not provided by JM.
6.3 JM will replace a copy of the Licensed Software not meeting the foregoing warranty if JM or an authorised JM reseller is notified that the Licensed Software does not meet the warranty within the thirty (30) day warranty period.
6.4 The above sets forth the sole and exclusive obligations of JM and the sole and exclusive remedies available to the Licensee in the event of errors or malfunctions in the Licensed Software. Except for the foregoing and to the maximum extent permitted by applicable law, the Licensed Software is provided and delivered to the Licensee 'as is' on the terms and conditions set out in this Agreement and JM and its suppliers disclaim, to the extent permitted by applicable law, all other conditions and warranties, either expressly made or implied, including but not limited to any warranties of merchantability and fitness for a particular purpose, title, or non-infringement with respect to the Licensed Software and the provision of or the failure to provide support services. There is no warranty by JM or any other party or person that the functions contained in the Licensed Software will meet the Licensee's requirements or that the operation of the Licensed Software will be uninterrupted or error-free. The Licensee assumes all responsibility for the selection of the Licensed Software to achieve the Licensee's intended results, and for the installation, use, and results obtained from it.
6.5 The Licensed Software is neither fault-tolerant nor designed or intended for use in safety-critical activities or any activity where there is a high risk of environmental damage, personal injury, or death of persons. No explicit or implicit warranty of fitness for such purpose and use is given by JM. The licenses granted under this Agreement shall terminate with immediate effect if the Licensed Software is used in such activities. The Licensee agrees to inform all users of the Licensed Software of these restrictions and agrees to bind them by proper agreement, where applicable, not to use the Licensed Software or any part of it in such activities.
7. LIMITATION OF LIABILITY
7.1 To the extent not expressly prohibited by law, in no event shall JM, its employees, agents or suppliers be liable for any lost profits, costs of procurement of substitute goods or services, property damage, personal injury, interruption of business, or for any special, indirect, incidental, economic, or consequential damages however caused and whether arising under contract, tort, negligence, or other theory of liability arising out of the use of or inability to use the Licensed Software, even if JM or its suppliers have been advised of the possibility of such damages. In the event that any exclusion contained herein shall be held to be invalid for any reason and JM becomes liable for loss or damage that may lawfully be limited, such liability shall be limited to the amount (excluding any taxes or payments for support or service, if any) paid by the Licensee to JM or a JM authorised reseller for the Licensed Software. The foregoing limitations will apply even if the above stated warranty fails in its essential purpose.
8. SUPPORT OF LICENSED SOFTWARE
8.1 Neither JM nor its licensors have any obligation to furnish the Licensee with any technical support, maintenance, updates, support, bug-fixes, or error corrections in respect of the licensed software , unless separately agreed in writing between the Licensee and JM. Without limiting the generality of the foregoing, any such updates, bug-fixes, or error corrections which JM might in its discretion (without being obliged to do so) provide to the Licensee shall be provided on the same terms as if it were Licensed Software under this Agreement.
8.2 From time to time JM may at its discretion provide support via its website. The cost of any such additional support services is to be negotiated by the parties separately to this Agreement the terms of which should otherwise apply thereto.
9.1 The benefit of this license shall not be dealt with in any way by the Licensee (whether by assignment, sub-licensing or otherwise) without the written consent of JM.
10. THIRD PARTY SOFTWARE
10.1 Any software provided along with or bundled with the Licensed Software that is associated with a separate end-user license agreement is licensed to the Licensee under the terms and conditions of such license agreement. JM is not a party to any such license agreement and does not assume any obligation in respect of such third party software.
11. THIRD PARTY TASTING NOTES
11.1 Any tasting notes provided along with or bundled with the Licensed Software that is associated with a separate end-user license agreement is licensed to the Licensee under the terms and conditions of such license agreement. JM is not a party to any such license agreement and does not assume any obligation in respect of such third party tasting notes.
12. THIRD PARTY INTELLECTUAL PROPERTY INFRINGEMENT
12.1 If at any time anything provided by JM to the Licensee pursuant to this Agreement is found to have, or in the opinion of JM may, infringe the intellectual property rights of any third party then the Licensee's sole remedy will be to request that JM elect in its sole discretion to do one or more of the following:
(1) modify the infringing product so that it does not infringe a third party's intellectual property rights;
(2) replace the product with a non-infringing product; or
(3) terminate this Agreement.
13.1 Failure or neglect by either party to enforce at any time any of the provisions of this Agreement shall not be construed or deemed to be a waiver of that party's rights under this Agreement.
13.2 If any provision of this Agreement is unenforceable, illegal or void then it is severed and the rest of this Agreement shall remain in force.
13.3 All notices, as well as any questions the Licensee may have concerning this Agreement should be e-mailed to firstname.lastname@example.org.
13.4 The applicable law of New South Wales governs this Agreement. The parties submit to the exclusive jurisdiction of the courts of New South Wales and the Federal Court of Australia.