Highlighter Licence Agreement

1 Defined Terms and Interpretation

1.1 Defined Terms

In this agreement, unless the contrary intention appears:

Commencement Date means the date on which you first access the Software.

Confidential Information means information relating to the development, layout, programming and operation of the Software, and any other information with respect to Silverpond’s business, finances, trade secrets or know-how that may be communicated to you (whether by Silverpond or otherwise) during the term of this agreement, but excludes information:

1. that is in, or subsequently enters, the public domain other than through a breach of this agreement by you;
2. developed independently by you; or
3. acquired by you from a third party who is not subject to a duty of confidentiality in respect of such information.

Derived Material means:

1. any Material created, generated, modified or reproduced from User Content using the Software on or after the Commencement Date; and
2. any User Model Weights.

Device means a personal computer, workstation, handheld PC, pager, telephone, personal digital assistant, smart phone, or other electronic device.

Intellectual Property Rights means all intellectual property rights, including the following rights:

1. patents, copyright, rights in circuit layouts, registered and unregistered designs, moral rights, registered and unregistered trade marks, service marks, trade names and any right to have Confidential Information kept confidential; and
2. any application or right to apply for registration of any of the rights referred to in paragraph (a).

Initial Term has the meaning given in clause 2.2(a).

Licence has the meaning given in clause 2.1.

Licence Fee has the meaning given in clause 5.

Material means any information, images, video, audio, documentation, data or other content relating to a party's products or services that is produced or compiled by, or on behalf of, a party or the party's Related Companies, irrespective of any media in which it may be stored or reproduced.

Order Details means the order details generated electronically in connection with the online purchase of the Software.

Personnel means in relation to a party, an officer, employee, agent, contractor or subcontractor of that party.

Project Collaborators means a third party listed under "Team Members" in the "Manage Team" functionality of the Software.

Purchaser means the person referred to in the Order Details.

Related Company means a related body corporate as defined in section 9 of the Corporations Act.

Renewal Term has the meaning given in clause 2.2(b).

Silverpond Model Weights means learned representations of Material independently developed by Silverpond using the Software.

Software means:

1. the Highlighter software described in the relevant Order Details;
2. Silverpond Model Weights; and
3. documentation relating to that software supplied or made available to you (whether in hardcopy or electronic form) including operating manuals, user manuals and online help documentation, and includes any improvements, enhancements, modifications or developments of that software or documentation supplied by Silverpond to you under this agreement.

User Content means any Material uploaded, imported, posted, transmitted, displayed or otherwise made available on the Software, or to Silverpond, by you, your Related Companies, your Personnel or your Project Collaborators under this agreement.

User Model Weights means any learned representations of User Content developed by Silverpond for you using the Software, as specified in the Order Details.

1.2 Interpretation

In this agreement, unless otherwise expressly stated:

1. headings are for ease of reference only and do not affect the meaning of this agreement;
2. the singular includes the plural and vice versa;
3. other grammatical forms of defined words or expressions have corresponding meanings;
4. a reference to party includes that party’s executors, administrators, successors and permitted assigns;
5. a reference to a document or agreement, including this agreement, includes a reference to that document or agreement as novated, altered or replaced from time to time;
6. a reference to any thing includes the whole or part of that thing, and a reference to a group of things or persons includes each thing or person in that group;
7. where two or more persons are bound, or to be bound, by an agreement or obligation, that agreement or obligation binds those persons severally and any two or more of them jointly;
8. a reference to dollars or $ is a reference to Australian dollars;
9. a reference to a person includes a natural person, a partnership, a body corporate, trust or joint venture; and
10. rules of construction will not apply to the disadvantage of a party merely because that party was responsible for the preparation of this agreement or any part of it.

2.1 Licence grant

Subject to you paying the Licence Fee, Silverpond grants you and your Project Collaborators, a non-exclusive, non-transferable Licence to access and use the Software on Devices owned by you, your Related Companies and your Project Collaborators.

2.2 Duration of Licence

The Licence commences on the Commencement Date and will continue:

1. for 1 month from that date (Initial Term); and
2. automatically for successive 1 month periods (each a Renewal Term),
3. subject to earlier termination of this agreement in accordance with clause 8.

2.3 Conditions

You must, and must ensure that your Personnel and Project Collaborators, only use the Software as permitted by this agreement and comply with your obligations under this agreement.

2.4 Restrictions

You must not:

1. copy, modify, add to, adapt, delete or amend any part of the Software;
2. sell, translate, network, publish, commercialise, rent, lease, assign, transfer, loan or otherwise distribute all or part of the Software, or any adaptation, modification or derivative of all or part of the Software;
3. other than to Project Collaborators, grant any sub licences to exercise any rights in respect of the Software, or permit any third party to use the Software;
4. reverse engineer, disassemble, or decompile any software forming part of the Software, unless permitted to do so by law, and then only strictly in accordance with the provisions or terms under which that right is given by such law;
5. use the Software for any unlawful purpose;
6. use the Software on any autonomous vehicle or similar (other than a Device); or
7. allow your Personnel or Project Collaborators, or any other third parties, to do anything inconsistent with the terms of this agreement.

2.5 No guarantee of access to Software

You acknowledge and agree that to the extent possible under law, Silverpond makes no representations, warranties or guarantees in relation to the availability, continuity, reliability, accuracy, currency or security of the Software. Silverpond will not be liable if the Software is unavailable for any reason, including directly or indirectly as a result of:

1. Device incompatibility;
2. telecommunications unavailability, interruption, delay, bottleneck, failure or fault;
3. negligent, malicious or wilful acts or omissions of third parties (including Silverpond's third party service providers);
4. maintenance or repairs carried out by Silverpond or any third party service provider in respect of any of the systems used in connection with the provision of the Software;
5. any events beyond Silverpond's control; or
6. services provided by third parties ceasing or becoming unavailable.

3.1 User Content

1. You warrant and agree that any User Content does not and will not violate third party rights of any kind, including any Intellectual Property Rights
2. Silverpond agrees that you will retain Intellectual Property Rights in any User Content.
3. To the extent that Silverpond needs to use any of the User Content for the purposes of this agreement, you grant Silverpond an irrevocable, fully paid-up licence (including the right to sublicense) to use, reproduce, adapt, modify and communicate the User Content.

3.2 Software

Subject to clause 2, you agree that all rights, title and interest (including all Intellectual Property Rights) in the Software vests absolutely in Silverpond.

3.3 Derived Material

1. All Intellectual Property Rights in the Derived Material vest in you.
2. To the extent that Silverpond needs to use any of the Derived Material for the purposes of this agreement, you grant Silverpond an irrevocable, fully paid-up licence (including the right to sublicense) to use, reproduce, adapt, modify and communicate the Derived Material.

4.1 Obligations of confidence

You must:

1. use your best endeavours to ensure that the Confidential Information is kept secret, and is not disclosed to any third party, other than to your Personnel and or your Project Collaborators (as the case may be), and even then, only to the extent that such persons have a need to know such information either to use the Software or to exercise your rights or fulfil your obligations;
2. not use, reproduce or communicate any Confidential Information, other than for the purposes of this agreement, unless Silverpond gives its express written consent for you to do so; and
3. procure that your Personnel and Project Collaborators do such things, or refrain from doing such things (as the case may be), as to ensure that you comply with your obligations under clauses 4.1(a) and 4.1(b).

4.2 Disclosure required by law

1. You will not be in breach of your obligations under clause 4 if you disclose Confidential Information pursuant to a statutory requirement, order of a court or legal direction or requirement of a person acting with statutory authority.
2. If you are required to disclose Confidential Information under paragraph 4.2(a), you must, before disclosing that information, notify Silverpond in writing and permit Silverpond the opportunity to limit the scope, or seek the withdrawal, of such required disclosure. You must provide Silverpond with reasonable co-operation in this regard.

6.1 Interpretation

Words or expressions used in this clause 11 which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in this clause.

6.2 Consideration is GST exclusive

Any consideration or amount to be paid or provided for a supply made under or in connection with this agreement, unless specifically described as GST inclusive, does not include GST payable on that supply.

6.3 Gross up of consideration

If a party (Supplier) makes a supply under or in connection with this agreement on which GST is imposed (not being a supply the consideration for which is specified as GST inclusive):

1. the consideration payable or to be provided for that supply but for this clause (GST exclusive consideration) is increased by, and the recipient of the supply (Recipient) must also pay to the Supplier, an amount equal to the GST payable by the Provider on that supply; and
2. the amount by which the GST exclusive consideration is increased must be paid to the Supplier by the Recipient without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.

7.1 Indemnity

You indemnify Silverpond (and all its Related Companies and Personnel) and must keep them indemnified against all loss, actions, proceedings, cost and expenses (including legal fees), claims and damages arising directly or indirectly out of or in connection with:

1. death or personal injury arising in connection with your use of the Software;
2. any breach of this agreement by you; or
3. any suit, claim or demand brought or made against Silverpond by or due to your conduct, acts or omissions.

7.2 Consumer guarantees

To the extent permitted by law, any conditions, warranties, guarantees, rights, remedies, liabilities and other terms implied or conferred by statute, custom or the general law that impose any liability or obligation on Silverpond are excluded under this agreement. However, if a supply under this agreement is a supply of goods or services to a consumer within the meaning of the Australian Consumer Law (contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) as amended or replaced from time to time), nothing contained in this agreement excludes, restricts or modifies the application of any provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law; provided that, to the extent the Australian Consumer Law permits Silverpond to limit its liability, then Silverpond's liability is limited to (at Silverpond's option):

1. in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and
2. in the case of software or other goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired.

7.3 Exclusion of liability

Subject to section 7.2, Silverpond excludes liability for all direct, indirect or consequential liabilities, losses, damages, costs and expenses, whether arising in contract, tort (including negligence) or otherwise suffered or incurred by any person:

1. in connection with or in any way relating to the Software or its use, including (without limitation):
2. any death or personal injury arising in connection with your use of the Software;
3. any disruption to or unavailability or failure of the Software or interference with or damage to any electronic systems or devices;
4. errors, omissions or inaccuracies contained in any information published on the Software or supplied by Silverpond to you via email or otherwise;
5. as a result of any fraudulent use, misuse or misappropriation of the Software or any part of the Software; or
6. as a result of any act committed by another person in connection with your use of the Software;
7. arising from any circumstance beyond its control; or
8. otherwise under or in connection with this agreement.

7.4 No guarantee of security of User Content or Derived Material

You acknowledge and agree that to the extent possible under law, Silverpond makes no representations, warranties or guarantees in relation to the security of the User Content or Derived Material. Silverpond will not be liable for any negligent, malicious or wilful acts or omissions of third parties (including Silverpond's third party service providers) in relation to the User Content or Derived Material.

7.5 Limitation of liability

Silverpond's total aggregate liability for all losses, damages, expenses, claims and actions arising under or in connection with this agreement or the Software is limited to an amount equal to the total fees paid by you to Silverpond during the term of this agreement.

8.1 Termination by either party for convenience

Either party may terminate this agreement without cause by giving not less than 30 days' notice prior to the expiry of the Initial Term or a Renewal Term]

8.2 Automatic termination

Your rights automatically and immediately terminate, without the need for notice from Silverpond, if you:

1. fail to comply with any provision of this agreement; or
2. become an externally-administered body corporate (as that term is defined in the Corporations Act 2001 (Cth)) or are otherwise unable to pay your debts as and when they fall due for payment.

8.3 Effect of termination

On termination of this agreement for any reason, you:

1. must, and procure that your Personnel and Project Collaborators, immediately and permanently cease using and delete the Software from all your devices and theirs;
2. must within 30 days send to Silverpond or otherwise dispose of in accordance with Silverpond's directions all Confidential Information and all other documentation and written correspondence relating to the Software then in your possession or control or that of your Personnel or of your Project Collaborators; and
3. will not be entitled to receive any refund of any part of any Licence Fees or other fees or charges paid by you under this agreement.

8.4 Surviving provisions

The parties agree that their rights and obligations under clauses 3, 4, 7, 8, 9 and 10 will survive the expiry or termination of this agreement for any reason.

9.1 Silverpond may vary terms

Silverpond reserves the right to revise and amend this agreement in its discretion, as follows:

1. if Silverpond considers that the change is likely to benefit you or have a neutral or minor detrimental impact on you, it may make any changes immediately without notifying you except by publishing the amended agreement (or a link to the amended agreement) on the Software; or
2. if Silverpond considers that the change is likely to have a significant detrimental impact on you, it will make the change after it has notified you of the change solely by displaying a notice on the Software describing the change.

9.2 Deemed agreement to variation

Your continued use of the Software after an amendment will mean that you agree to that amendment. You must stop using the Software if you do not agree to an amendment.

10.1 Force majeure

Neither party is liable for any failure to perform or delay in performing its obligations under this agreement if that failure or delay is due to anything beyond that party’s control. If that failure or delay exceeds 60 days, either party may terminate this agreement with immediate effect by giving notice to the other party.

10.2 Governing law

This agreement is governed by the laws of Victoria, Australia, and the parties submit irrevocably and unconditionally to the exclusive jurisdiction of the courts of Victoria, Australia.

10.3 Assignment

You may not assign your rights under this agreement, nor attempt or purport to do so, without our consent (which may be given or withheld at our absolute discretion).

10.4 Waiver

A waiver or relaxation by a party of a right under this agreement will only be effective if it is in writing. Such waiver or relaxation will apply only in respect of a particular instance or event, and will not prevent that party from exercising that or any other right in the future.

10.5 Severability

If any provision, or part of a provision, of this agreement is found to be illegal or unenforceable it will be severed from the agreement, and the remainder of this agreement will be construed as if that provision or part did not form part of this agreement.