Terms and Conditions of Software Licence Agreement
1.1 In this Agreement, the following words and expressions shall (unless the context shall otherwise require) bear the following meanings:
“Additional Charges” the Company’s rates from time to time for work undertaken on a time and materials basis;
“Bespoke Programming” the modification or enhancement of the Software by the Company to meet the requirements of the Licensee and/or to implement the Software into the Licensee’s systems, as more particularly described in the Order Confirmation or the applicable documentation referred to therein;
“Commencement Date” the date of last signature of this Agreement;
“Company” inspHire Australia Pty Limited (registered number 631464232) whose registered office is at 225 Fularton Road, Eastwood SA 5063;
“Documentation” the instruction manuals, user guides, software specifications and other information relating to the Software to be made available by the Company at its discretion in either printed or machine readable form to the Licensee;
“Equipment” the computer hardware located at the Site and/or in the direct control of the Licensee onto which the Software is to be installed for the purpose of being used by the Licensee;
“Installation Date” the date on which the Software and Documentation are delivered to and installed at the Site;
“Intellectual Property Rights” copyright, database rights, design rights (registered and unregistered), patents, trademarks, trade names and any other intellectual property rights of any nature whether registered or unregistered anywhere in the world;
“Licence Fee” the fee for the licence of the Software and Documentation and provision of the Services set out in the Order Confirmation, as the same may be varied in accordance with clause 3.3 below;
“Licensee” the person, firm or company identified as such in the Order Confirmation;
“Order Confirmation” the Company’s confirmation of the Licensee’s order for the Software and the Services, forming the front page of this Agreement;
“Services” the delivery, Technical Support, training and/or Bespoke Programming services to be provided to the Licensee as set out in the Order Confirmation;
“Site” the address for delivery of the Software and Documentation specified by the Licensee and set out in the Order Confirmation;
“Software” the Company’s software package, as more particularly identified in the Order Confirmation and as modified and/or enhanced by the Bespoke Programming, and any Upgrade of the same made or issued pursuant to clause 6 below;
“Target Installation Date” the estimated date for delivery and installation of the Software and Documentation as set out in the Order Confirmation;
“Technical Support” the provision of technical support services in respect of the Software in accordance with the Company’s Support Charter (as amended from time to time) to be made available by the Company at its discretion in either printed or machine readable form to the Licensee on or prior to the Commencement Date and promptly following each occasion that such Support Charter is amended during the continuation of this Agreement;
“Upgrade” any updated version of the Software or Documentation incorporating any improvement(s), modification(s) or correction(s) that is issued from time to time by the Company pursuant to clause 6 below, excluding (for the avoidance of doubt) any new generation product with similar and/or additional functionality to the Software and any new operating platform for the Software; and
“Use” the copying or transmission of the Software or (where in machine readable form) the Documentation onto the Equipment for the processing of the instructions contained in the Software or (as the case may be) the Documentation.
1.2 The headings in this Agreement are inserted only for convenience and shall not affect its construction.
1.3 Where appropriate words denoting a singular number only shall include the plural and vice versa and references to the masculine gender shall include the feminine and neuter genders and vice versa.
1.4 Reference to any statute or statutory provision includes a reference to the statute or statutory provision as from time to time amended, extended or re-enacted.
2 Grant of licence and provision of Services
2.1 The Company in consideration of the payment by the Licensee from time to time of the Licence Fee in accordance with clause 3 below:
2.1.1 grants to the Licensee a non-exclusive licence to Use the Software (and where appropriate the Documentation) upon the Equipment and to possess and refer to the Documentation; and
2.1.2 undertakes to the Licensee to provide the Services,
and upon the terms and conditions of this Agreement.
3 Licence Fee
3.1 The Licence Fee shall include the cost of:
3.1.1 the delivery of the Software and Documentation and any Upgrade to the Site; and
3.1.2 the provision of the Services.
3.2 During the continuation of this Agreement, the Licence Fee (together with value added tax at the then prevailing rate) shall be invoiced by the Company in accordance with the Order Confirmation and, unless otherwise agreed by the Company in the Order Confirmation, shall be payable by the Licensee within 30 days of the date of the Company’s invoice.
For the avoidance of doubt and subject to clause 16.2.1 below, a separate Licence Fee shall be payable in respect of the minimum initial period described in clause 16.1 below and each further successive 12-month period during the continuation of this Agreement.
3.3 Without prejudice to the Company’s rights under clause 9.3 below, the Company shall be entitled to, upon giving not less than 30 days’ prior written notice to the Licensee, adjust the Licence Fee and/or any cost forming part thereof not more than once in every successive period of 12 months during the continuation of this Agreement, provided that, in respect of the minimum initial period described in clause 16.1 below, the Licence Fee shall not differ to that set out in the Order Confirmation.
3.4 The Company reserves the right to charge the Licensee interest in respect of the late payment of any sum due under this Agreement (before as well as after judgement) at the rate of 8 per cent per annum above the base rate from time to time of the Bank of England from the due date until the date of payment. The Company may, at its sole discretion, levy reasonable debt recovery charges in respect of late payment of any sums due under this Agreement.
4 Delivery and installation
4.1 The Company shall use all reasonable endeavours to deliver one copy of the Software and Documentation to the Site on the Target Installation Date or as soon thereafter as is possible. Time shall not be of the essence in relation the Company’s delivery or (if applicable) installation of any Software or Documentation.
4.2 Unless otherwise agreed by the Company in the Order Confirmation and subject to clause 6.1.2 below, the Company shall be responsible for installing any “Corporate Edition” or “Office Edition” Software on the Equipment following delivery. The Licensee shall be deemed to have accepted the Software and Documentation on completion of such installation.
4.3 Unless otherwise agreed by the Company in the Order Confirmation and subject to clause 6.1.2 below, the Licensee shall be responsible for installing any “Express Edition” Software on the Equipment following delivery. The Licensee shall be deemed to have accepted the Software and Documentation on completion of such installation.
5 Technical support
5.1 With effect from the Installation Date and, subject to clause 16.2.1 below, for the duration of this Agreement, the Company shall provide the Licensee with Technical Support in respect of the Software.
5.2 The Company shall, upon request by the Licensee, provide Technical Support in respect of the Software in any circumstances expressly excluded under or otherwise not covered by the Company’s Support Charter (as amended from time to time). The Company shall in such circumstances be entitled to levy Additional Charges in the manner set out in clause 5.4 below.
5.3 Without prejudice to clause 5.2 above, the Company shall be entitled to levy reasonable Additional Charges in the manner set out in clause 5.4 below if any Technical Support in respect of the Software is provided in circumstances where any reasonably skilled and competent data processing operator would have judged the Licensee’s request to have been unnecessary.
5.4 Additional Charges shall be levied by the Company monthly in arrears and shall be payable by the Licensee (together with value added tax thereon) within 30 days of the date of the Company’s invoice in respect thereof.
6.1 Subject to clause 16.2.1 below:
6.1.1 the Company may from time to time during the continuation of this Agreement issue an Upgrade; and
6.1.2 if the Licensee wishes to take any Upgrade issued under clause 6.1.1 above, it shall notify the Company in writing. Upon receipt of such notice, the Company shall make arrangements for delivery of the Upgrade to the Licensee within a reasonable time and free of charge. Unless otherwise agreed by the Company in the Order Confirmation, the Licensee shall be responsible for the installation of the Upgrade on the Equipment and, upon such installation, the Upgrade shall be deemed to have been accepted by the Licensee.
7 Property and confidentiality
7.1 The Software and Documentation contain confidential information of the Company and all Intellectual Property Rights in the Software and Documentation are the exclusive property of the Company.
7.2 The Licensee shall not:
7.2.1 save as provided in clause 8 below, copy the whole or any part of the Software and/or Documentation;
7.2.2 modify, merge or combine the whole or any part of the Software and/or Documentation with any other software or documentation;
7.2.3 assign, transfer, sell, lease, rent, charge or otherwise deal in or encumber the Software and Documentation nor use on behalf of or make available the same to any third party; or
7.2.4 reverse compile the whole or any part of the Software and/or Documentation from object code into source code save as permitted by law.
7.3 The Licensee shall:
7.3.1 keep confidential the Software and Documentation and limit access to the same to those of its employees, agents and sub-contractors who either have a need to know or who are engaged in the Use of the Software (including where appropriate the Documentation);
7.3.2 reproduce on any copy of the Software the Company’s copyright and trade mark notices;
7.3.3 maintain an up-to-date written record of the location of the Software, the Documentation and any copy of the Software and upon request forthwith produce such record to the Company; and
7.3.4 without prejudice to the foregoing, take all such other steps as shall from time to time be necessary to protect the confidential information and Intellectual Property Rights of the Company in the Software and Documentation.
7.4 The Licensee shall inform all relevant employees, agents and sub-contractors that the Software and Documentation constitute confidential information of the Company and that all Intellectual Property Rights therein are the property of the Company and the Licensee shall take all such steps as shall be necessary to ensure compliance by its employees, agents and sub-contractors with the provisions of this clause 7.
8 Copying of the software and documentation
8.1 The Licensee shall be entitled to make one back-up copy of the Software. Any such copy shall in all respects be subject to the terms and conditions of this Agreement and shall be deemed to form part of the Software.
8.2 The Licensee shall not be entitled to copy in whole or in part the Documentation.
9 Use on the Equipment
9.1 If the Equipment is for any reason inoperable the Licensee shall, until such time as the Equipment once more becomes operable, be entitled without extra charge to Use the Software upon such alternative computer equipment as the Company shall previously approve (such approval not to be unreasonably withheld).
9.2 The Licensee shall not be entitled to replace the Equipment on a permanent basis without the prior written consent of the Company (such consent not to be unreasonably withheld).
9.3 If the Licensee shall move the Equipment from the Site to a new location then, without prejudice to the provisions of clause 3.3 above, the Company shall be entitled to make such reasonable increase to the Licence Fee as shall be necessary to take account of any increased costs that it shall incur in providing Technical Support at the new location.
10.1 Subject to the exceptions set out in clause 10.4 below and the limitations upon its liability in clause 11 below, the Company warrants that:
10.1.1 its title and property on the Software and Documentation is free and unencumbered and that it has the right, power and authority to licence the same upon the terms and conditions of this Agreement;
10.1.2 the media upon which the Software and Documentation are stored will for a period of 90 days from the Installation Date be free from defects in materials, design and workmanship;
10.1.3 the Software will for a period of 90 days from the Installation Date will be in material compliance with the Documentation; and
10.1.4 it will perform the Services with reasonable care and skill.
10.2 The Licensee shall give notice to the Company as soon as it is reasonably able upon becoming aware of a breach of warranty.
10.3 Subject to clause 10.4 below, the Company shall remedy any breach of the warranties set out in clauses 10.1.2 and 10.1.3 above by the provision of Technical Support free of charge.
10.4 The Company shall have no liability to remedy a breach of warranty where such breach arises as a result of any circumstances expressly excluded under or otherwise not covered by the Company’s Support Charter (as amended from time to time).
10.5 Without prejudice to the foregoing, the Company does not warrant that the Use of the Software will meet the Licensee’s data processing requirements or that the operation of the Software (including where in machine-readable form the Documentation) will be uninterrupted or error free.
10.6 Save as expressly set out in this Agreement, all conditions, warranties, terms and undertakings, express or implied, statutory or otherwise in respect of the Software and Documentation and the provision of the Services are hereby excluded to the fullest extent permitted by law.
10.7 Whilst the Company uses reasonable means to ensure that all electronic mail, attachments and distribution media is screened for computer viruses and other malicious code, the responsibility for checking for such virus infections however transmitted or distributed rests solely with the Licensee. The Company does not accept responsibility or liability for any virus infection howsoever caused.
11 Limitation of liability
11.1 The following provisions set out the Company’s entire liability (including any liability for the acts and omissions of its employees, agents and sub-contractors) to the Licensee in respect of:
11.1.1 any breach of its contractual obligations arising under this Agreement; and
11.1.2 any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
The licensee’s attention is in particular drawn to the provisions of this clause 11.
11.2 Any act or omission on the part of the Company or its employees, agents or sub-contractors falling within clause 11.1 above shall for the purposes of this clause 11 be known as an “Event of Default”.
11.3 The Company’s liability to the Licensee for death or injury resulting from its own negligence or that of its employees’, agents’ or sub-contractors’ shall not be in any way excluded or limited.
11.4 Subject to clause 11.3 above:
11.4.1 the Company’s entire liability under this Agreement shall be limited to damages of an amount equal to the Licence Fee paid by the Licensee in respect of the minimum initial period described in clause 16.1 below or further successive 12-month period (as applicable) in which the Event of Default arises; and
11.4.2 the Company shall not be liable to the Licensee in respect of any Event of Default for loss of profits, loss of goodwill, loss of or damage to reputation, loss of savings or anticipated savings, loss of customers, loss of data or any type of special, indirect or consequential loss (including loss or damage suffered by the Licensee as a result of an action brought by a third party) even if such loss was reasonably foreseeable or the Company had been advised of the possibility of the Licensee incurring the same.
11.5 If a number of Events of Default give rise substantially to the same loss then they shall be regarded as giving rise to only one claim under this Agreement.
11.6 The Licensee hereby agrees to afford the Company a period of not less than 90 days following notification of an Event of Default by the Licensee in which to remedy any Event of Default hereunder.
11.7 Except in the case of an Event of Default arising under clause 11.3 above, the Company shall have no liability to the Licensee in respect of any Event of Default unless the Licensee shall have served notice of the same upon the Company within 2 years of the date to became aware of the circumstances giving rise to the Event of Default or the date when it ought reasonably to have become so aware.
11.8 Nothing in this clause 11 shall confer any right or remedy upon the Licensee to which it would not otherwise be legally entitled.
11.9 The Licensee acknowledges and agrees that the Software and Documentation are standard products that have not been designed and produced to the Licensee’s individual requirements, that the Licensee was responsible for their selection and accordingly the limitations and exclusions of liability contained in this Agreement are reasonable in all the circumstances.
12 Intellectual property rights indemnity
12.1 The Company will indemnify and hold harmless the Licensee against any damages (including costs) that may be awarded or agreed to be paid to any third party in respect of any claim or action that the normal operation, possession or use of the Software and Documentation by the Licensee infringes the Intellectual Property Rights of said third Party (an “Intellectual Property Infringement”), provided that the Licensee:
12.1.1 gives notice to the Company of any Intellectual Property Infringement forthwith upon becoming aware of the same;
12.1.2 gives the Company the sole conduct of the defence to any claim or action in respect of an Intellectual Property Infringement and does not at any time admit liability or otherwise attempt to settle or compromise the said claim or action except on the express instructions of the Company; and
12.1.3 acts in accordance with the reasonable instructions of the Company and gives to the Company such assistance as it shall reasonably require in respect of the conduct of the said defence including without prejudice to the generality of the foregoing the filing of all statements of claim and other Court processes and the provision of all relevant documents.
12.2 The Company shall reimburse the Licensee its reasonable costs incurred in complying with the provisions of clause 12.1.3 above.
12.3 The Company shall have no liability to the Licensee in respect of an Intellectual Property Infringement if the same results from any breach of the Licensee’s obligations under this Agreement.
12.4 In the event of an Intellectual Property Infringement the Company shall be entitled at its own expense and option either to:
12.4.1 procure the right for the Licensee to continue using the Software and Documentation;
12.4.2 make such alterations, modifications or adjustments to the Software and Documentation that they become non-infringing without incurring a material diminution in performance or function; or
12.4.3 replace the Software and Documentation with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function.
12.5 If the Company in its reasonable judgement is not able to exercise any of its options set out at clauses 12.4.1, 12.4.2 or 12.4.3 above within 90 days of the date it received notice of the Intellectual Property Infringement, then the Licensee without prejudice to any other rights or remedies it may have hereunder or at law shall be entitled to terminate this Agreement by 90 days’ notice upon the Company. Upon any such termination, the provisions of clause 18.3 below shall apply.
13 Risk in the software and documentation
13.1 Risk in the Software and Documentation will pass to the Licensee upon the Installation Date. If subsequently the Software and Documentation are (in whole or in part) destroyed damaged or lost the Company will upon request replace the same subject to the Licensee paying its then prevailing charges.
14.1 Each of the parties hereto undertakes to the other to keep confidential all information (written or oral) concerning the business and affairs of the other that it obtains or receives as a result of the discussions leading up to or entering into of this Agreement save that which is:
14.1.1 trivial or obvious;
14.1.2 already in its possession other than as a result of a breach of this clause 14; or
14.1.3 in the public domain other than as a result of a breach of this clause 14.
14.2 Each of the parties undertakes to the other to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of clause 14.1 above by its employees, agents and sub-contractors.
15 Training and Bespoke Programming
15.1 The Company shall provide to the Licensee, commencing upon the Installation Date (unless otherwise agreed between the parties), the training services to be included in the Licence Fee and set out in the Order Confirmation.
15.2 The Company shall provide to the Licensee, commencing upon the Commencement Date (unless otherwise agreed between the parties), the Bespoke Programming to be included in the Licence Fee and set out in the Order Confirmation.
15.3 Any additional training or bespoke programming services requested by the Licensee shall be provided by the Company for Additional Charges levied on the basis set out in clause 5.4 above.
16 Duration of Agreement
16.1 This Agreement shall commence on the Commencement Date and, subject to early termination under clause 12.5 above or clause 18 or 19.3 below, shall continue for a minimum period of 12 months from the Installation Date. Following the expiry of this minimum initial period:
16.1.1 if the Software is “Corporate Edition”, this Agreement shall automatically continue for successive 12-month periods unless and until: (i) this Agreement is terminated under clause 12.5 above or clause 18 or 19.3 below; or (ii) the Licensee gives the Company no less than 90 days’ prior written notice that it no longer requires Technical Support in relation to the Software, such notice to take effect no sooner than the expiry of the minimum initial period or the then current successive 12-month period (as applicable); or
16.1.2 if the Software is “Express Edition” or “Office Edition”, this Agreement shall, subject to early termination under clause 12.5 above or clause 18 or 19.3 below, automatically continue for successive 12-month periods unless: (i) any sum payable to the Company under this Agreement or any other agreement between the Company and the Licensee remains overdue upon expiry of the minimum initial period or any successive 12-month period (as applicable); (ii) the Licensee has failed to fully comply with the terms and conditions of this Agreement at any time during the minimum initial period or any successive 12-month period (as applicable); and/or (iii) the Licensee cancels this Agreement.
16.2 For the avoidance of doubt:
16.2.1 the automatic continuation of this Agreement under clause 16.1.2 above shall not be subject to any obligation on the Licensee to continue to receive Technical Support over any further successive 12-month period, provided that, if the Licensee elects (by giving the Company no less than 90 days’ written notice prior to the expiry of the minimum initial period or the then current successive 12-month period) not to receive Technical Support over the subsequent successive 12-month period, the Licensee will not be entitled to receive any Upgrade issued by the Company during such period or any further successive 12-month period during the continuation of this Agreement; and
16.2.2 if the Licensee elects not to receive Technical Support over any further successive 12-month period then, except to the extent that they apply or relate to the provision of Technical Support, the terms and conditions of this Agreement shall remain in full force and effect.
17 Licensee’s representatives
17.1 The Licensee shall communicate to the Company on the Commencement Date the identity of the person(s) or the department within its undertaking at the Site who shall act as the sole contact point and channel of communication for the provision by the Company of the Services during the continuation of this Agreement. The Licensee shall forthwith inform the Company of any change in the identity of any such person(s) or department.
18.1 This Agreement may be terminated:
18.1.1 by the Licensee upon giving not less than 30 days’ notice to the Company, provided that the Licensee shall not be entitled to terminate this Agreement under this clause 18.1.1 unless all Licence Fees for Use of the Software and Documentation and any Additional Charges that have accrued during such notice period have been received by the Company in full and cleared funds prior to the expiry thereof;
18.1.2 forthwith by the Company if the Licensee fails to pay the Licence Fee or any part of the Licence Fee by the due date;
18.1.3 forthwith by either party if the other commits any material breach of any term of this Agreement (other than one falling within clause 18.1.2 above) and which (in the case of a breach capable of being remedied) shall not have been remedied within 90 days of a written request to remedy the same; or
18.1.4 forthwith by either party if the other shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition, scheme or arrangement with (or assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of section 123 of the UK Insolvency Act 1986 or if a trustee, receiver, administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other or for the making of an administration order (otherwise than for the purpose of a bona fide amalgamation or reconstruction).
18.2 Any termination or cancellation of this Agreement for any reason shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
18.3 Within 30 days of the cancellation or termination of this Agreement (howsoever and by whomsoever occasioned), the Licensee shall destroy all copies of the Software and Documentation in its possession and a duly authorised officer of the Licensee shall certify in writing to the Company that the Licensee has complied with such obligation.
18.4 If, at any time during the continuation of this Agreement, the Company terminates this Agreement under clause 18.1.2, 18.1.3 or 18.1.4 above, the Licensee shall become immediately liable to pay:
18.4.1 all outstanding costs forming part of the Licence Fee and any Additional Charges that have accrued during the period from the Commencement Date to the date of termination of this Agreement; and
18.4.2 all costs forming part of the Licence Fee that would have been payable to the Company during the period from such date of termination to the expiry of the minimum initial period referred to in clause 16.1 above if this Agreement had continued to remain in effect for the entirety of such minimum initial period.
18.5 If, at any time prior to the expiry of the minimum initial period referred to in clause 16.1 above, the Licensee wishes to cancel this Agreement in the absence of any entitlement to terminate this Agreement under clause 12.5 above, this clause 18 or clause 19.3 below, the Licensee must provide the Company with no less than 30 days’ prior written notice of such cancellation and, prior to such notice of cancellation taking effect, pay the Company:
18.5.1 all outstanding costs forming part of the Licence Fee and any Additional Charges that have accrued during the period from the Commencement Date to the date such notice of cancellation takes effect; and
18.5.2 all costs forming part of the Licence Fee that would have been payable to the Company during the period from such date of cancellation to the expiry of the minimum initial period referred to in clause 16.1 above if this Agreement had continued to remain in effect for the entirety of such minimum initial period.
19 Force Majeure
19.1 Neither party hereto shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control including, but not limited to, fires, strikes (of its own or other employees), insurrection or riots, embargoes, container shortages, wrecks or delays in transportation, inability to obtain supplies and raw materials, or requirements or regulations of any civil or military authority (an “Event of Force Majeure”).
19.2 Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
19.3 If a default due to an Event of Force Majeure shall continue for more than 12 weeks, then the party not in default shall be entitled to terminate this Agreement. Neither party shall have any liability to the other in respect of the termination of this Agreement as a result of an Event of Force Majeure.
20.1 The waiver by either party of a breach of or default in any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
21.1 Any notice, request, instruction or other document to be given under this Agreement shall be delivered or sent by first class post or by facsimile (such facsimile notice to be confirmed by letter posted within 12 hours) to the address of the other party set out in this Agreement (or such other address as may have been notified) and any such notice or other document shall have been deemed to have been served (if delivered) at the time of delivery (if sent by post) upon the expiration of 48 hours after posting and (if sent by facsimile) upon the expiration of 12 hours after dispatch.
22 Invalidity and severability
22.1 If any court or administrative body of competent jurisdiction finds any provision of this Agreement to be invalid or unenforceable, the invalidity or unenforceablity of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision that achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.
23 Entire agreement
23.1 This Agreement embodies and sets forth the entire agreement and understanding of the parties and supersedes all prior oral or written agreements, representations, understandings or arrangements relating to the subject matter of this Agreement.
23.2 Each party waives any right it may have (whether to claim damages, rescission or otherwise) in respect of any agreement, understanding, representation or arrangement which is not expressly set forth in this Agreement and acknowledges that their only rights shall be for breach of contract, provided that neither party in any way excludes or limits its liability for fraudulent misrepresentation or fraudulent concealment.
24.1 This Agreement shall be binding upon and enure for the benefit of the successors in title of the parties hereto.
25 Assignment and sub-licensing
25.1 The Licensee shall not be entitled to assign this Agreement or any of its rights or obligations hereunder or to sub-licence the Use (in whole or in part) of the Software and Documentation without the prior written consent of the Company.
26 Third party rights
26.1 This Agreement does not create any right enforceable by any person not a party to it, except that a person who is the permitted successor to or assignee of the rights of a party is deemed to be a party to this Agreement.
27.1 This Agreement shall be governed by the laws of Western Australia. The parties irrevocable submit to the exclusive jurisdiction of the courts of Western Australia and the federal Court of Australia (Perth registry) with respect to any action or proceeding arising out of or relating to this Agreement..