Particle (Particle Lead Accelerator Pty Ltd) grants the End User of the Particle Software, a licence to use the software subject to the following conditions. By downloading, installing and/or using the Particle Software the End User accepts this agreement and all the associated conditions. Particle is granting the user a licence to use the software as a consequence of the Company entering into a Software as a Service Agreement with Particle.
1. Granting of Licence
Subject to the terms and conditions of this Agreement Particle grants the Company and the End User a non-exclusive, non-transferrable right to use the Particle Software.
2. Product Entitlement
The use of the Particle Software by the End User is conditional on the licences purchased and paid for by the Company, and Particle may disable, block access or uninstall the Particle Software if it is not licenced by the Company in accordance with the Software as a Service Agreement.
3. Termination
(a) Particle may terminate this End User licence agreement if the End User or the Company materially breaches this agreement and fails to remedy the breach within 30 days of written notice being provided to the Company of the breach.
(b) Particle may terminate this end user licence Agreement if the Company has failed to pay licence fees within 30 days of these fees being due, as defined in the terms of the Company Software as a Service Agreement.
(c) If the End User ceases to be a staff member, contactor or agent of the Company, this end user licence agreement is immediately terminated.
(d) If the Company or Particle terminates the Company’s Software as a Service agreement, this End User agreement is terminated.
4. Consequences of Termination
In the event of Termination of this End User Agreement, Particle may disable access to the Particle Software, or cause the Particle Software to be uninstalled or unavailable to the End User. The End User and the Company will not hold Particle liable for any direct or indirect consequences of ceasing or preventing access to the Particle Software as a consequence of termination.
In the event of Termination of this End User Agreement, Particle may disable access to the Particle Software, or cause the Particle Software to be uninstalled or unavailable to the End User. The End User and the Company will not hold Particle liable for any direct or indirect consequences of ceasing or preventing access to the Particle Software as a consequence of termination.
5. Resale or Sub-Licencing
The End User is not entitled to rent, lease, resell, provide access to, licence or sublicence the Particle Software to any other parties without the written permission of Particle, and any such actions will constitute a material breach of this agreement.
6. Sharing Login Details
The End User will not disclose or share their login Id and/or password with any other parties, and any such actions will constitute a material breach of this agreement, even if the other parties are authorised End Users of the Particle Software.
7. Breach of Laws
The End User must adhere to the provisions of the Privacy Act (cth 1988), the Spam Act (cth 2003), and other relevant legislation (including obligations to report unauthorised access to personal information). Any significant failure to comply with relevant legislation will constitute a material breach of this agreement.
8. Software Access
(a) The End User acknowledges that Particle Software may contain a method for Particle to track and/or disable Licensee’s access to or use of the Particle Software. The method may include a time out or expiry date mechanism or remote access to the Particle Software, without limitation.
(b) Licensee agrees that Particle may use any such disabling method to disable the End Users access to or use of the Particle Software:
(i) this Agreement expires or terminates for any reason;
(ii) Licensee fails to correct a breach of a material obligation (which includes any non-compliance with licence terms) under this Agreement within 30 days after notice of such breach is issued by Particle; or (c) otherwise permitted by this Agreement. This clause does not limit any of Particle’s other rights under the Agreement.
(c) Licensee agrees that Particle may use any such tracking mechanism to understand how the End User use the Particle Software functionality for the purpose of improving the Particle Software.
9. Confidentiality
Each party acknowledges that it may have access to Confidential Information of the other party in connection with this Agreement, and that each party’s Confidential Information is of substantial value to the Disclosing Party, which could be impaired if it were improperly disclosed to third parties or used in violation of this Agreement.
Each Recipient of Confidential Information under this Agreement must:
(a) keep the Disclosing Party’s Confidential Information confidential and protect it at least to the same extent it protects its own Confidential Information and to the same extent that a reasonable person would protect such Confidential Information;
(b) not use the Disclosing Party’s Confidential Information in any way for its own account or the account of any third party except to perform its duties, exercise its rights or is otherwise authorised under this Agreement; and
(c) not disclose the Disclosing Party’s Confidential Information except to perform its duties or exercise its rights under this Agreement or as otherwise authorised under this Agreement, provided that:
(i) any disclosure made to the Recipient’s employees, contractors or agents is on a need-to-know basis; and
(ii) the Recipient’s employees, contractors or agents in receipt of the Confidential Information are under an obligation of confidentiality no less stringent than that set forth in this section.
10. Intellectual Property Rights
(a) The Particle Software, including its object code and source code, whether or not provided to Company, is Confidential Information of Particle. Particle owns exclusively and reserves all rights, title and interest in and to the Particle Software and Particle Documentation, including all Intellectual Property Rights as well as any Derivative Works. Company may not exercise any right, title and interest in and to the Particle Software, Particle Documentation or any related Intellectual Property Rights, except for the limited usage rights granted to Company in this Agreement or in the Software as a Service Agreement.
(b) This Agreement is not an agreement of sale, and does not transfer any title, Intellectual Property Rights or ownership rights to the Particle Software or Particle Documentation to Company. Company acknowledges and agrees that the Particle Products, Particle Documentation and all ideas, methods, algorithms, formulae, processes and concepts used in developing or incorporated into the Particle or Particle Documentation, all future updates and upgrades, and all other improvements, revisions, corrections, bug-fixes, hot- fixes, patches, modifications, enhancements and policy and database updates and other updates in, of, or to the Particle Software or Particle Documentation, and all copies of the foregoing are trade secrets and proprietary property of Particle, and are of considerable commercial value.
11. Limitation of Liability
Particle and the Company agree that the limitation of liability provisions which apply to Particle and the Company in this agreement are identical to the provisions in the most recently executed Software as a Service Agreement between these Parties.
12. Indemnity
Particle and the Company agree that the indemnity provisions which apply to Particle and the Company in this agreement are identical to the provisions in the most recently executed Software as a Service Agreement between these Parties.
13. General
a) Law. This Agreement is governed and construed by the law of New South Wales and each party submits to the non-exclusive jurisdiction of the courts of that State and appellate courts.
b) Inconsistency: If there is any inconsistency between any one or more of the following documents: (i) this Agreement; (ii) the Software as a Service agreement, then the Software as a Service agreement will prevail.
c) Notices. Any notice or other communication required or permitted by this Agreement must be in writing and be sent by courier, prepaid or registered post, return receipt requested, addressed to Particle and Licensee at the addresses specified in this Agreement. All such notices or communications will be deemed to have been duly given or made, on delivery for courier, or 2 (two) Business Days after being deposited in the mail.
d) Assignment. Particle may assign or novate its rights and obligations under this Agreement at any time with the prior written consent of the Company which will not be unreasonably withheld.
e) Equitable Relief. The parties agree that a material breach of this Agreement adversely affecting the proprietary rights of Particle in the Particle Software would cause it irreparable injury for which monetary damages would not be an adequate remedy, and that Particle is entitled to seek equitable relief in addition to any remedies it may have under this Agreement or at law.
f) Waiver. The failure of a party to pursue its rights with respect to a default or breach does not constitute a waiver of the right to enforce its rights with respect to the same or any other breach.
g) Force Majeure. No party is responsible for any delay in its performance nor failure to perform due to causes beyond its reasonable control (except for obligations to pay amounts due).
h) Severability. If any provision of this Agreement is found invalid or unenforceable, it will be enforced to the extent permissible and the remainder of this Agreement will remain in full force and effect.
i) Headings. The clause headings in this Agreement are for convenience only, are not a part of the clause and do not form a part of this Agreement. They must not be used in construction of this Agreement.
j) Duplicate Originals. This Agreement may be executed in any number of counterparts, each of which will be an original and all of which constitute one and the same document.
k) Use of Words. Words used in the singular mean and include the plural and vice versa. Words suggesting natural persons mean and include companies, corporations, unincorporated firms, associations and other entities recognised by law and vice versa.
l) Entire Agreement. This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous discussions, representations, and proposals, written or oral, with respect to its subject matter.
14. Definitions
End User means the person directly using the Particle Software, as the authorised staff member, contractor or agent of the Company.
Confidential Information means a party’s (and its Related Bodies Corporate’s) non-public information clearly identified as proprietary or confidential or which would reasonably be expected to be confidential. Confidential Information includes (but is not limited to) information concerning business methods, business plans and budgets, financial results, customer and supplier information including Personal Information of Clients, Licensee Materials, Licensee Data and other data and technology, software, pricing and terms and conditions of this Agreement, and test results, including the results of any evaluation of the Software or of a pre-production release of it. However, Confidential Information does not include information that: (a) is or becomes publicly available through no act or omission of the other party; (b) the owning party discloses to a third party without restriction on disclosure; (c) is disclosed to the other party by a third party without restriction on disclosure and without breach of a nondisclosure obligation; (d) is independently developed; or (e) is previously known to the other party without nondisclosure obligations.
Particle Software means any and all software application provided by Particle, under and on the terms and conditions of this Agreement, specifically including the Martin mobile app, control panel or sales process management tools, including the lead creator.
Particle Documentation means any documentation, tutorials, videos, audio or other content (online or printed) which shows the features and functions of the Particle Software.
Company means the entity entering into the Software as a Service Agreement with Particle, which has appointed authorised End Users.