1. Introduction

This Metrix License Agreement (the “Agreement”) is between you and the Metrix entity that owns the Software that you are accessing or using listed here (“Metrix” or “we”). If you are agreeing to this Agreement not as an individual but on behalf of your company, government, or other entity for which you are acting (for example, as an employee or government official), then “you” means your entity and you are binding your entity to this Agreement. Metrix may modify this Agreement from time to time, subject to the terms in Section 22 (Changes to this Agreement) below.  The Software is not intended for and should not be used by anyone under the age of 16. You must ensure that all Authorized Users are at least 16 years old. 

 

The “Effective Date” of this Agreement is the date which is the earlier of (a) your initial access to or use of the Software (as defined below) or (b) the effective date of the first order referencing this Agreement.

 

By clicking on the “I agree” (or similar button or checkbox) presented to you at the time of your order or by using or accessing the Software, you indicate your consent to be bound by this Agreement.  If you disagree with this Agreement, do not use or access the Software.

 

2. Definitions

Additional Services	Means Technical Account Manager (“TAM”) services, Support and Maintenance or other services related to the Software provided to you by Metrix, as identified in an Order.
Affiliate	Means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.
Metrix Policies	This means Metrix Privacy Policy, Security Policy, Developer Terms, License Agreement and (unless otherwise specified) any other policies or terms referenced in this Agreement.
Metrix Technology	This means the Software (including all No-Charge Software), Metrix Deliverables, their “look and feel”, any related or underlying technology and any modifications or derivative works of the previous, including as they may incorporate Feedback.
Authorised Users	This means the specific individuals you designate to use the applicable Software and for whom you have paid the required fees.  Authorised Users may be your or your Affiliates’ employees, representatives, consultants, contractors, agents or other third parties acting for your or your Affiliates’ benefit or on your or your Affiliates’ behalf.  Authorised Users also include any Secondary Users you permit to use the Software, subject to Section 2.3 (Secondary Users).
Documentation	Means our standard published documentation for the Software.
Feedback	Means comments, questions, ideas, suggestions or other feedback relating to the Software, Support and Maintenance or Additional Services.
Laws	Means all applicable local, state, federal and international laws, regulations and conventions, including data privacy and data transfer, global communications and the exportation of technical or personal data.
License Term	This means your permitted license term for the Software, as outlined in an Order.
New Releases	Means any bug fixes, patches, major or minor releases, or any other changes, enhancements, or modifications to the Software that Metrix makes available to you as part of Support and Maintenance.
Order	Means Metrix applicable ordering documentation or other purchase flow referencing this Agreement.  Orders may include purchases of Software licenses, Support and Maintenance, Additional Services, increased or upgraded Scope of Use or renewals.
Product-Specific Terms	This means additional terms that apply to specific Software and Additional Services currently located here.
Scope of Use	Means your authorised scope of use for the Software as specified in the applicable Order, which may include (a) number and type of assets, (b) numbers of licenses, copies or instances, or (c) entity, division, business unit, website, the field of use or other restrictions or billable units.
Software	Means Metrix’s commercially available downloadable software products (currently designated as “Server” or “Data Center” deployments), including mobile applications of such products.  Your Order will specify the Software that you may use.
Support and Maintenance	Means Metrix support and maintenance services for the Software, as further described in the Metrix License Agreement, Privacy Policy and Security Policy (if applicable).  Your level of Support and Maintenance will be specified in your Order.
Training	means Metrix-provided training and certification services.

 

3. Scope of Agreement

3.1. Software. 

This Agreement governs your initial purchase of Metrix’s Software, Support and Maintenance for the Software, and any Additional Services, as well as any future purchases made by you that reference this Agreement.  This Agreement includes each Order, the Metrix Policies, the Product-Specific Terms, and any other referenced policies and terms.  The Software and its permitted use are further described in the Documentation.  The term “Software” includes Documentation unless otherwise specified.

 

4. Accounts; Authorized Users

4.1. Account Registration. 

You must register for an account with us to place orders or access or receive Software. Your registration information must be accurate, current and complete. You must keep your registration current so that we may send you notices, statements and other information by email or through your account. You are responsible for all actions taken through your account, including Orders made or Apps enabled (which may incur fees). Suppose you order Software through a Reseller (defined in Section 7.8). In that case, you are solely responsible for (i) any access by the Reseller to your account and (ii) any related rights or obligations in your applicable agreement with the Reseller.

 

4.2. Authorized Users. 

Only Authorized Users may access and use the Software.  Some Software may allow you to designate different types of Authorized Users, in which case pricing and functionality may vary according to the kind of Authorized User.  You are responsible for compliance with this Agreement by all Authorized Users, including what Authorized Users do with your data, and for all fees incurred by Authorized Users (or from adding Authorized Users).  All use of Software must be solely for the benefit of you or your Affiliates (except as expressly permitted in Section 2.3 below) and within the Scope of Use.

 

4.3. Secondary Users.

 As further described in the Documentation, certain Software may be used as part of your support (or similar) resources related to your products, e.g., use of Metrix Support & Maintenance as part of a 2nd Office to share your documentation with your users.  Subject to the terms and conditions of this Agreement, you may grant your customers’ end-users (“Secondary Users”) limited rights to use the Software solely so that they may view and interact with such resources.  You may not permit Secondary Users to use the Software for purposes unrelated to supporting your offerings or grant Secondary Users administrator, configuration or similar use of the Software. Under Section 3.2 (Authorized Users), you are responsible for all Secondary Users as “Authorized Users” and are otherwise solely responsible for your support offerings and Secondary relationships.  Notwithstanding anything contrary in this Agreement, Metrix has no direct or indirect warranty, indemnity or other liability or obligations to Secondary Users.

 

5. Use of the Software

5.1. Your License Rights. 

Subject to the terms and conditions of this Agreement, Metrix grants you a non-exclusive, non-sublicensable and non-transferable license to install and use the Software during the applicable License Term for your business purposes, following this Agreement, your appropriate Scope of Use, the Documentation and all Laws.

 

5.2. Restrictions. 

Except as otherwise expressly permitted in this Agreement, you will not: (a) reproduce, modify, adapt or create derivative works of any part of the Software; (b) rent, lease, distribute, sell, sublicense, transfer, or provide access to the Software to a third party; (c) use the Software for the benefit of any third party; (d) incorporate the Software into a product or service you provide to a third party; (e) interfere with any license key mechanism in the Software or otherwise circumvent mechanisms in the Software intended to limit your use; (f) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the Software, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (g) remove or obscure any proprietary or other notices contained in the Software; (h) use the Software for competitive analysis or to build competitive products; (i) publicly disseminate information regarding the performance of the Software; or (j) encourage or assist any third party to do any of the preceding.

 

5.3. Number of Instances. 

Unless otherwise specified in your Order, for each Software license you purchase, you may install one (1) production instance of the Software on systems owned or operated by you or one of your Authorized Users. We may also make “developer” licenses free of charge for certain cases of our Software offerings to allow you to deploy non-production instances, such as for staging or QA purposes.

 

5.4. Product-Specific Terms. 

Some Software may be subject to additional terms specific to that Software as outlined in the Product-Specific Terms.  By accessing or using a product covered by the Product-Specific Terms, you agree to the Product-Specific Terms.

 

5.5. Attribution. 

In any use of the Software, you must not remove, obscure, or alter in any way the following attribution to Metrix on all user interfaces to the Software: “Powered by Metrix,” which must in every case include a hyperlink to http://www.metrix.com.au, and which must be in the same format as delivered in the Software.

 

5.6. System Requirements. 

You are solely responsible for ensuring that your systems meet the hardware, software and any other applicable system requirements for the Software as specified in the Documentation. Metrix will have no obligations or responsibility under this Agreement for issues caused by your use of any third-party hardware or software not provided by Metrix.

 

5.8. Indemnification by You.

You will defend, indemnify and hold harmless Metrix from and against any loss, cost, liability or damage (including attorney’s fees) arising from or relating to any claim brought against Metrix (a) arising from or related to your breach of Section 3.3 (Secondary Users) or any claims or disputes brought by Secondary Users arising out of their use of the Software; (b) by a third party relating to Your Modifications (including but not limited to any representations or warranties you make about Your Modifications of the Software) or your breach of Section 4.5 (Your Modifications); (c) by a third party related to your Customer Materials, as defined in Section 7.2(b); or (d) by a third party relating to any non-Metrix content or data used by you or your Secondary Users in connection with the Software.  This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event, notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defence, or settlement of such claim; and (iii) all reasonably necessary cooperation of Metrix at your expense.

 

6. Privacy Terms

Metrix may collect certain data and information from you and Secondary Users in connection with you the use of the Software.  All such data and information will be collected and used by Metrix in accordance with Metrix’s Privacy Policy, which you acknowledge. 

 

7. Support and Maintenance

7.1. Support and Maintenance.

During the agreement, Metrix will provide Support and Maintenance for the Software through its online support documentation and regular product releases.

 

7.2 Additional Maintenance

In some cases, a customer may request additional support and maintenance services beyond the scope included in their Order. In such instances, Metrix reserves the right to charge the customer additional fees.

 

8. License Terms, Returns and Payment

8.1. License Term and Renewals. 

The License Term, Support and Maintenance period, and TAM services period will be indicated in the Order (as applicable).  The License Term and any applicable service periods will commence on the Order date (unless a different start date is designated in the Order) and expire on the expiration date indicated in your account. Unless earlier terminated in accordance with this Agreement, each right to use Software will expire at the end of the applicable License Term unless you have selected the “auto-renewal” option in your account. All renewals are subject to the relevant Software or Support and Maintenance continuing to be offered and will be charged at the then-current rates.

 

9.2. Delivery. 

You are responsible for accessing your account to determine that we have received payment and your order has been processed.  All deliveries under this Agreement will be electronic. To avoid doubt, you are responsible for installing the Software, and you acknowledge that Metrix has no further delivery obligation concerning the Software after delivery of the licensed product.

 

9.3. Return Policy. 

As part of our commitment to customer satisfaction, in the event you terminate your initial Order under Section 9.3, Metrix may disable the license that allowed the Software to operate and, at your request (which may be made through your account), Terminate further development and refund future fees for additional service. Work already undertaken is subject to charges at the standard agreed rate or hourly rate when otherwise not noted. You understand that Metrix may change this practice in the future in accordance with Section 22 (Changes to this Agreement).

 

9.4. Increased Scope of Use. 

During your License Term, you may increase your Scope of Use (e.g., adding Assets, licenses, copies or instances) by placing a new Order or, if made available by Metrix, directly through the applicable Software.  Any increases to your Scope of Use will be subject to additional fees, as outlined in the applicable Order.

 

9.5. Payment. 

You will pay all fees in accordance with each Order, by the due dates and in the currency specified in the Order.  If a purchase order number is required for an invoice to be paid, then you must provide such purchase order number to Metrix by emailing the purchase order number to accounts@metrix.com.au.  For Additional Services provided at any non-Metrix location, unless otherwise specified in your Order, you will reimburse Metrix for its pre-approved travel, lodging and meal expenses, which Metrix may charge as incurred.  Other than as expressly outlined in Section 9.3 (Return Policy) and Section 16 (IP Indemnification by Metrix), all amounts are non-refundable, non-cancelable and non-creditable. You agree that we may bill your credit card or another payment method for renewals, additional users, expenses and unpaid fees, as applicable.

 

9.6. Taxes. 

Your fees under this Agreement exclude any taxes or duties payable for the Software in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Metrix, you must pay Metrix the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the preceding, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide Metrix with any such exemption information, and Metrix will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.

 

9.7. Withholding Taxes. 

You will pay all fees net of any applicable withholding taxes. You and Metrix will work together to avoid any withholding tax if exemptions, or a reduced treaty withholding rate, are available. If Metrix qualifies for a tax exemption, or a reduced treaty withholding rate, Metrix will provide you with reasonable documentary proof. You will give Metrix credible evidence that you have paid the relevant authority for the sum withheld or deducted.

 

9.8. Reseller Orders. 

This Section 7.8 applies if you purchase the Software, Support and Maintenance or any Additional Services through an authorised partner or reseller of Metrix (“Reseller”).

 

(a) Instead of paying Metrix, you will pay the applicable amounts to the Reseller, as agreed between you and the Reseller.  Metrix may suspend or terminate your rights to use Software if Metrix does not receive the corresponding payment from the Reseller.

 

(b) Instead of an Order with Metrix, your order details (e.g., Software, Scope of Use and License Term) will be as stated in the order placed with Metrix by the Reseller on your behalf, and the Reseller is responsible for the accuracy of any such order as communicated to Metrix.

 

(c) If you are entitled to a refund under this Agreement, then unless otherwise specified by Metrix, Metrix will refund any applicable fees to the Reseller, and the Reseller will be solely responsible for repaying the appropriate amounts to you.

 

(d) Resellers are not authorised to modify this Agreement or make any promises or commitments on Metrix’s behalf. Metrix is not bound by any obligations to you other than as outlined in this Agreement.

 

(e) The amount paid or payable by the Reseller to us for your use of the applicable Software under this Agreement will be deemed the amount paid or payable by you to us for calculating the liability cap in Section 16.2 (Liability Cap).

 

9.9. Future Functionality; Separate Purchases. 

You acknowledge that the Software and Additional Services referenced in an Order are being purchased separately from any of our other products or services. Payment obligations for any products or services are not contingent on the purchase or use of any of our other products (and for clarity, any purchases of Software and Additional Services are separate and not contingent on each other, even if listed on the same Order).  You agree that your purchases are not contingent on the delivery of any future functionality or features (including future availability of any Software beyond the current License Term or any New Releases), or dependent on any oral or written public comments made by Metrix regarding future functionality or features.

 

10. No-Charge Software

We may offer certain Software (including some Metrix Apps) to you at no charge, including free accounts, trial use, and Beta Versions as defined below (collectively, “No-Charge Software”). Your use of No-Charge Software is subject to any additional terms that we specify. It is only permitted during the License Term we designate (or if not designated, until terminated following this Agreement). Except as otherwise outlined in this Section, the terms and conditions of this Agreement governing Software, including Section 5.2 (Restrictions), fully apply to No-Charge Software.  We may terminate your right to use No-Charge Software at any time and for any reason in our sole discretion, without liability to you. You understand that any pre-release and beta versions of Software, and any pre-release and beta features within generally available Software, that we make available (collectively, “Beta Versions”) are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Software. We make no promises that any Beta Versions will ever be made generally available. In some circumstances, we may charge a fee to allow you to use Beta Versions, but the Beta Versions will remain subject to Section 8. All information regarding any No-Charge Software’s characteristics, features or performance (including Beta Versions) constitutes Metrix’s Confidential Information. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities concerning No-Charge Software, including any Support and Maintenance, warranty, and indemnity obligations.  NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, Metrix’S MAXIMUM AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE SOFTWARE WILL BE AUD$1.00

 

11. Use of Metrix Developer Assets

Access to any Metrix APIs, SDKs or other Metrix developer assets is subject to an alternative agreement with Metrix.

 

12. Ownership and Feedback

The Software is made available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. Metrix and its licensors have and retain all rights, titles and interest, including all intellectual property rights, in and to Metrix Technology (including the Software).  From time to time, you may choose to submit Feedback to us. Metrix may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in this Agreement limits Metrix’s right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.

 

13. Confidentiality

Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Metrix Technology and any performance information relating to the Software will be deemed Confidential Information of Metrix without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement.  The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 13 and that the Receiving Party remains responsible for compliance by them with the terms of this Section 13. The Receiving Party’s confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.

 

14. Term and Termination

14.1. Term. 

This Agreement is effective as of the Effective Date and continues until the expiration of all License Terms unless earlier terminated as set forth herein.

 

14.2. Termination for Cause. 

Either party may terminate this Agreement (including all related Orders) if the other party (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). 

 

14.3. Termination for Convenience. 

You may choose to stop using the Software and terminate this Agreement (including all Orders) at any time for any reason upon written notice to Metrix, but, unless you are exercising your right to terminate early pursuant to Section 8.3 (Return Policy), upon any such termination (i) you will not be entitled to a refund of any pre-paid fees and (ii) if you have not already paid all applicable fees for the then-current License Term or related services period (as applicable), any such fees that are outstanding will become immediately due and payable.

 

14.4. Effects of Termination.

Upon any expiration or termination of this Agreement, your license to the Software terminates (even if the License Term is identified as “perpetual” or if no expiration date is specified in your Order) and you must cease using and delete (or at our request, return) all Software and Confidential Information or other materials of Metrix in your possession, including on any third-party systems operated on your behalf.  You will certify such deletion upon our request. If this Agreement is terminated by you in accordance with Section 14.2 (Termination for Cause), Metrix will refund you any prepaid Software fees covering the remainder of the then-current License Term after the effective date of termination. If this Agreement is terminated by Metrix in accordance with Section 14.2 (Termination for Cause), you will pay any unpaid fees covering the remainder of the then-current License Term after the effective date of termination. In no event will termination relieve you of its obligation to pay any fees payable to Metrix for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.

 

15. Warranties and Disclaimer

15.1. General Warranties. 

Each party represents and warrants that it has the legal power and authority to enter into this Agreement.  If you are an entity, you represent and warrant that this Agreement and each Order are entered into by an employee or agent of such entity with all necessary authority to bind such entity to the terms and conditions of this Agreement.

 

15.2. Virus Warranty. 

Metrix further represents and warrants that it will take reasonable commercial efforts to ensure that the Software, in the form and when provided to you, will be free of any viruses, malware, or other harmful code.  For any breach of the foregoing warranty, your sole and exclusive remedy, and Metrix’s sole obligation, is to provide a replacement copy of the Software promptly upon notice.

 

15.3. Warranty Disclaimer. 

EXCEPT AS EXPRESSLY SET FORTH IN SECTION 14.1 (GENERAL WARRANTIES) AND 15.2 (VIRUS WARRANTY), ALL SOFTWARE, SUPPORT AND MAINTENANCE AND ANY ADDITIONAL SERVICES ARE PROVIDED “AS IS,” AND Metrix AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. Metrix WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF Metrix. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER Metrix NOR ANY OF ITS THIRD-PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY SOFTWARE OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE SOFTWARE WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE SOFTWARE (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SOFTWARE) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ERRORS OR DEFECTS WILL BE CORRECTED; OR (E) EXCEPT AS EXPRESSLY SET FORTH IN SECTION 14.2 (VIRUS WARRANTY), THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.  YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

 

16. Limitations of Liability

16.1. Consequential Damages Waiver. 

EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

 

16.2. Liability Cap. 

EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S AND ITS SUPPLIERS’ AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO US UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.

 

16.3. Excluded Claims. 

“Excluded Claims” means (1) amounts owed by you under any Orders, (2) either party’s express indemnification obligations in this Agreement and (3) your breach of Section 5.2 (Restrictions) or of Section 3 (Combining the Products with Open Source Software) of Third Party Code in Metrix Products.

 

16.4. Nature of Claims and Failure of Essential Purpose. 

The parties agree that the waivers and limitations specified in Section 14 (Limitations of Liability) apply regardless of the form of action, whether, in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

 

17. Publicity Rights

 

We may identify you as a Metrix customer in our promotional materials. We will promptly stop doing so upon your request.

 

18. Dispute Resolution

18.1. Informal Resolution.

In the event of any controversy or claim arising out of or relating to this Agreement, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under this Agreement pursuant to Section 18.2 (Governing Law; Jurisdiction). All negotiations pursuant to this Section 18.1 will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.

 

18.2. Governing Law; Jurisdiction. 

This Agreement will be governed by and construed in accordance with the applicable laws of the State of Queensland, AU, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to this Agreement must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in Queensland, AU, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Queensland, AU, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. In any action or proceeding to enforce a party’s rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.

 

18.3. Injunctive Relief; Enforcement.

Notwithstanding the provisions of Section 18.1 (Informal Resolution) and Section 18.2 (Governing Law; Jurisdiction), nothing in this Agreement will prevent Metrix from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.

 

18.4. Exclusion of UN Convention and UCITA. 

The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) will not apply to this Agreement regardless of when or where adopted.

 

21. Third Party Code

The Software may include code and libraries licensed to us by third parties, including open source software. See Third Party Code in Metrix Products for additional provisions regarding our use of third party code.

 

21. Changes to this Agreement

21.1. Modifications Generally. 

We may modify the terms and conditions of this Agreement (including Metrix Policies) from time to time, with notice given to you by email, through the Software or through our website.  Together with the notice, we will specify the effective date of the modifications.

 

No-Charge Software:  You must accept the modifications to continue using the No-Charge Software.  If you object to the modifications, your exclusive remedy is to cease using the No-Charge Software.

 

Paid Licenses:  Typically, when we make modifications to the main body of this Agreement (excluding the Metrix Policies), the modifications will take effect at the next renewal of your License Term and will automatically apply as of the renewal date unless you elect not to renew pursuant to Section 9.1 (License Term and Renewals). In some cases – e.g., to address compliance with Laws, or as necessary for new features – we may specify that such modifications become effective during your then-current License Term. If the effective date of such modifications is during your then-current License Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we will refund to you any fees you have pre-paid for use of the affected Software for the terminated portion of the applicable License Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications.  For the avoidance of doubt, any Order is subject to the version of this Agreement in effect at the time of the Order.

 

Metrix Policies:  Our products and business are constantly evolving, and we may modify the Metrix Policies from time to time, including during your then-current License Term in order to respond to changes in our products, our business, or Laws. In this case, unless required by Laws, we agree not to make modifications to the Metrix Policies that, considered as a whole, would substantially diminish our obligations during your then-current License Term. Modifications to the Metrix Policies will take effect automatically as of the effective date specified for the updated policies.

 

22. General Provisions

22.1. Notices.

Any notice under this Agreement must be given in writing. We may provide notice to you via email or through your account. You agree that any such electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Our notices to you will be deemed given upon the first business day after we send it. You will provide notice to us by post to 

 

Post:

General Council

c/o Boardroom 

1/53 Riverside Place 

Morningside, Queensland 4170. 

 

Your notices to us will be deemed given upon our receipt.

 

22.2. Force Majeure. 

Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events that are beyond the reasonable control of such parties, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

 

22.3. Assignment. 

You may not assign or transfer this Agreement without our prior written consent. As an exception to the foregoing, you may assign this Agreement in its entirety (including all Orders) to your successor resulting from your merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under this Agreement. Any attempt by you to transfer or assign this Agreement except as expressly authorized above will be null and void. We may assign our rights and obligations under this Agreement (in whole or in part) without your consent. We may also permit our Affiliates, agents and contractors to exercise our rights or perform our obligations under this Agreement, in which case we will remain responsible for their compliance with this Agreement.  Subject to the foregoing, this Agreement will inure to the parties’ permitted successors and assigns.

 

22.4. Government End Users.

Any Australian, federal, state, or local government customers are subject to the Government Amendment in addition to this Agreement.

 

22.5. Entire Agreement. 

This Agreement is the entire agreement between you and Metrix relating to the Software and supersedes all prior or contemporaneous oral or written communications, proposals and representations between you and Metrix with respect to the Software or any other subject matter covered by this Agreement.  No provision of any purchase order or other business form employed by you will supersede or supplement the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.

 

22.6. Conflicts. 

In event of any conflict between the main body of this Agreement and either the Metrix Policies or Product-Specific Terms, the Metrix Policies or Product-Specific Terms (as applicable) will control with respect to their subject matter.

 

22.7. Waivers; Modifications. 

No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. Except as set forth in Section 19 (Changes to this Agreement), any amendments or modifications to this Agreement must be executed in writing by the authorized representatives of Metrix and you.

 

22.8. Interpretation. 

As used herein, “including” (and its variants) means “including without limitation” (and its variants).  Headings are for convenience only.  If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions will continue in full force and effect.

 

22.9. Independent Contractors. 

The parties are independent contractors. This Agreement will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party.