Software and Licence Agreement

SOFTWARE LICENCE AGREEMENT TERMS AND CONDITIONS

This agreement governs your use of the Snap Pod plugin (Licensed Asset) and any other services made available through our website. By purchasing and downloading the Licensed Asset, you agree to be bound by this agreement which forms a binding contractual agreement between you, the Licensee, and us, MEDIABLE PTY LTD ACN 640 390 610 as trustee for The Mediable Trust ABN 45736504116 (the Licensor, we or us).

1. TERM

This agreement commences on the day you purchase and download the Licensed Asset and will continue until the date this agreement is terminated in accordance with its terms (Term).

2. INTELLECTUAL PROPERTY LICENCE

(a) Subject to the terms of this agreement and in consideration of the payment of the Fees, the Licensor grants to the Licensee non-exclusive, non-transferrable, worldwide licence to use the Intellectual Property Rights in the Licensed Assets for the sole purpose of enabling you to use, enjoy the benefit of or exploit the Licensed Assets for individual use for the Term (Licence).

(b) The Licensee acknowledges and agrees that:

(i) the Licensee must not use the Licensed Assets for any purpose other than on an individual basis and indemnifies the Licensor against any loss the Licensor suffers as a result of the Licensee’s failure to comply with this clause;

(ii) all Intellectual Property Rights in the Licensed Assets remain the sole property of the Licensor, and the Licensee will not acquire title or rights in the Licensed Assets under this agreement.

3. QUALITY AND CONTROL

The Licensee must:

(a) only use the Intellectual Property Rights in the Licensed Assets in the manner approved by the Licensor from time to time (acting reasonably);

(b) only use the Intellectual Property Rights in the Licensed Assets for one single user;

(c) immediately remove any use of the Licensed Assets on social media or on any other website if requested by the Licensor (acting reasonably);

(d) not do or authorise the doing of any act, matter or thing or omit to do anything whereby the Intellectual Property Rights in the Licensed Assets may be prejudicially affected; and

(e) ensure that all material in its care, custody or control which features the Licensed Assets is of a high quality.

4. LICENSEE OBLIGATIONS

4.1. GENERAL

The Licensee:

(a) must provide the Licensor with all documentation, information and assistance reasonably required by the Licensor to provide the Licensed Assets. This includes the last 4 digits of the Licensee’s DaVinci Resolve licence key (Licence Key);

(b) agrees to indemnify the Licensor for any issues with using the Licence Key including the inability of the Licensee to access the Licensed Assets; and

(c) agrees that it will not, by receiving or requesting the Licensed Assets:

(i) breach any applicable laws, rules or regulations (including any applicable privacy laws); or

(ii) infringe the Intellectual Property Rights or other rights of any third party or breach any duty of confidentiality.

4.2. USE OF LICENSED ASSETS

(a) The Licensee must comply with this agreement at all times. The Licensee acknowledges and agrees that the Licensor will have no liability in respect of any damage, loss or expense which arises in connection with the Licensee’s breach of this agreement and the Licensee indemnifies the Licensor in respect of any such damage, loss or expense.

(b) The Licensee must not, and must not encourage or permit anyone or any third party to, without the Licensor’s prior written approval:

(i) upload sensitive information or commercial secrets to the Licensed Assets;

(ii) upload any harmful, discriminatory, defamatory, maliciously false implications, offensive, explicit, inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist material to the Licensed Assets;

(iii) upload any material that is owned or copyrighted by a third party;

(iv) make copies of the Licensed Assets;

(v) adapt, modify or tamper in any way with the Licensed Assets;

(vi) remove or alter any copyright, trade mark or other notice on or forming part of the Licensed Assets;

(vii) create derivative works from, translate or reproduce the Licensed Assets;

(viii) publish or otherwise communicate the Licensed Assets to the public, including by making it available online or sharing it with third parties;

(ix) sell, loan, transfer, sub-licence, hire or otherwise dispose of the Licensed Assets to any third party;

(x) decompile or reverse engineer the Licensed Assets or any part of it, or otherwise attempt to derive its source code;

(xi) attempt to circumvent any technological protection mechanism or other security feature of the Licensed Assets;

(xii) permit any person other than the Licensee to use or access the Licensed Assets;

(xiii) intimidate, harass, impersonate, stalk, threaten, bully or endanger any other user of the Licensed Assets or distribute unsolicited commercial content, junk mail, spam, bulk content or harassment in connection with the Licensed Assets;

(xiv) share its Licensed Assets account information with any other person and that any use of its account by any other person is strictly prohibited. The Licensee, must immediately notify the Licensor of any unauthorised use of its account, password or email, or any other breach or potential breach of the Licensed Assets’ security;

(xv) use the Licensed Assets for any purpose other than for the purpose for which it was designed, such as not using the Licensed Assets in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity; nor

(xvi) act in any way that may harm the Licensor’s reputation or that of associated or interested parties or do anything at all contrary to the interests of the Licensor or the Licensed Assets.

(c) The Licensee agrees that the Licensor is not responsible for any content or actions that the Licensee does with the Licensed Assets and will indemnify the Licensor for any issues arising from content produced from the Licensed Assets.

5. FEES

5.1. FEES

In consideration of the grant of the Licence, the Licensee agrees to pay the Licensor the Fees in the amounts and at the times set out on our website, or as otherwise agreed in writing.

5.2. FEE PAYMENT TERMS

(a) Unless otherwise indicated, amounts stated on an invoice do not include taxes including GST. In relation to any GST payable for a taxable supply by the Licensor, the Licensee must pay the GST subject to the Licensor providing a tax invoice.

(b) The Licensor reserves the right to charge credit card surcharges in the event that payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).

(c) The Licensee must pay Fees using the fee payment methods using either Credit Card / PayPal or as otherwise agreed with us.

6. WARRANTIES

6.1. LICENSOR WARRANTIES

(a) The Licensor confirms and warrants that:

(i) immediately prior to the date of this agreement, the Licensor is the sole legal and beneficial owner of all right, title and interest (including all Intellectual Property Rights) in and to the Licensed Assets; and

(ii) the use of the Licensed Assets by the Licensee in accordance with this agreement does not infringe and will not infringe any Intellectual Property Rights of any third party.

6.2. SERVICE LIMITATIONS

While we will use our best endeavours to ensure the Licensed Assets is working for its intended purpose, you acknowledge and agree that from time to time, you may encounter the following issues:

(a) the Licensed Assets may have errors or defects;

(b) the Licensed Assets may not be accessible at times;

(c) information you receive or supply through the Licensed Assets may not be secure or confidential; or

(d) any information provided through the Licensed Assets may not be accurate or true.

6.3. EXCLUSION OF OTHER WARRANTIES

(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in this agreement are excluded.

(b) Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.

7. THIRD PARTY SOFTWARE AND TERMS

7.1. GENERAL

(a) The Licensee acknowledges and agrees that third party terms and conditions (Third Party Terms) may apply to use of the Licensed Assets, including Black Magic, Axios, node-machine-id, and xml2js, and Electron.

(b) The Licensee agrees to any Third Party Terms applicable to any third party goods and services that are used in providing the Licensed Assets and the Licensor will not be liable for any loss or damage suffered by the Licensee in connection with such Third Party Terms.

(c) The Licensor will endeavour to notify the Licensee of Third Party Terms that apply to the Licensed Assets, in which case:

(i) the Licensee must immediately notify the Licensor if it does not agree to such Third Party Terms; and

(ii) if the Licensor does not receive a notice in accordance with clause 7.1(c)(i) , the Licensee will be taken to have accepted those Third Party Terms, and the Licensor will not be liable for any loss or damage suffered by the Licensee in connection with such Third Party Terms.

(d) The Licensee acknowledges and agrees that if it does not agree to any Third Party Terms, this may affect the Licensor’s ability to meet any agreed schedules for delivering the Licensed Assets.

8. PRIVACY

The Licensee agrees to the Licensor collecting, using and disclosing personal information in accordance with its Privacy Policy, located on our website which is incorporated into this agreement by reference.

9. LIMITATION OF LIABILITY

9.1. LIABILITY

(a) To the maximum extent permitted by law and subject to clause 9.1(b) , the total liability of each party in respect of loss or damage sustained by the other party in connection with this agreement is limited to the total Fees paid by the Licensee.

(b) Clause 9.1(a) does not apply to the Licensee’s liability in respect of loss or damage sustained by the Licensor arising from the Licensee’s breach of:

(i) any third party intellectual property rights; or (ii) clause 4.

9.2. CONSEQUENTIAL LOSS

To the maximum extent permitted by law, neither party will be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue in connection with this agreement or any goods or services provided by the Licensor, except:

(a) in relation to a party’s liability for fraud, personal injury, death or loss or damage to tangible property; or

(b) to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth).

10. DISPUTE RESOLUTION

(a) A party claiming that a dispute has arisen under or in connection with this agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause.

(b) A party that requires resolution of a dispute which arises under or in connection with this agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.

(c) Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith. If the dispute is not resolved within a period of 14 days (or such other period as agreed by the parties in writing) after the date of the notice, any party to the dispute may take legal proceedings to resolve the dispute.

11. TERMINATION

11.1. TERMINATION FOR CONVENIENCE

Either party may terminate this agreement for convenience by providing 10 Business Days’ notice to the other party.

11.2. TERMINATION FOR BREACH

(a) Either party may terminate this agreement immediately by written notice if there has been a Breach of this agreement.

(b) A “Breach” of this agreement means:

(i) a party considers the other party is in breach of this agreement including, without limitation, of clauses 2 , 3 and 4 , and notifies that other party;

(ii) the other party is given 10 Business Days to rectify the breach; and

(iii) the breach has not been rectified within 10 Business Days or another period agreed between the parties in writing.

11.3. EFFECT OF TERMINATION

Upon termination of this agreement:

(a) the Licensor must:

(i) immediately cease using the Licensed Assets;

(ii) remove the Licensed Assets from all materials in the Licensee’s care, custody or control that features the Licensed Assets, and, if the Licensed Assets cannot be removed, then at the Licensor’s option, return or destroy all such material;

and (iii) promptly pay any outstanding Fees owed to the Licensor as at the date of termination; and

(b) each party must:

(i) return all property and Confidential Information to the other party; and

(ii) comply with all obligations that are by their nature intended to survive the end of this agreement.

12. NOTICES

(a) A notice or other communication to a party under this agreement must be:

(i) in writing and in English; and

(ii) delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.

(b) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:

(i) 24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this agreement, in which case the notice will be taken to be given on the next occurring Business Day in that state or territory; or

(ii) when replied to by the other party, whichever is earlier.

13. DEFINITIONS

13.1. DEFINITIONS

Capitalised terms used in this agreement are defined in bold in brackets throughout the agreement after the first time the term is used, in the body of this agreement, and as follows:

• Business Day means a day (other than a Saturday, Sunday or any other day which is a public holiday) on which banks are open for general business in Brisbane, Queensland, Australia.
• Fees has the meaning set out in clause 5.1.
• Intellectual Property Rights means any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trade marks, designs, patents, moral rights, semiconductor and circuit layout rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of this agreement.
• Licence means the licence granted in clause 2.
• Term has the meaning set out in clause 1.

14. GENERAL

14.1. GOVERNING LAW AND JURISDICTION

This agreement is governed by the law applying in Queensland, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Queensland, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement.

Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

14.2. BUSINESS DAYS

If the day on which any act is to be done under this agreement is a day other than a Business Day, that act must be done on or by the immediately following Business Day except where this agreement expressly specifies otherwise.

14.3. AMENDMENTS

This agreement may only be amended in accordance with a written agreement between the parties.

14.4. WAIVER

No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

14.5. SEVERANCE

Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.

14.6. JOINT AND SEVERAL LIABILITY

An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.

14.7. ASSIGNMENT

A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.

14.8. COUNTERPARTS

This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.

14.9. COSTS

Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.

14.10. ENTIRE AGREEMENT

This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.

14.11. INTERPRETATION

(a) (singular and plural) words in the singular includes the plural (and vice versa);

(b) (currency) a reference to $; or “dollar” is to United States (USD) currency, or as otherwise set out on our website or as agreed with you;

(c) (gender) words indicating a gender includes the corresponding words of any other gender;

(d) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;

(e) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;

(f) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;

(g) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;

(h) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;

(i) (headings) headings and words in bold type are for convenience only and do not affect interpretation;

(j) (includes) the word “includes” and similar words in any form is not a word of limitation;

and

(k) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.