| Sightsee International Pty Ltd Tour Management Software Licence General Terms
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| 1. DEFINITIONS AND INTERPRETATIONS
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| 1.1 | In this agreement unless the context otherwise requires, the following words bear the meaning set out hereunder: “the Company” means Sightsee International Pty Ltd ACN 146 163 037 “Confidential Information” means all confidential, non-public or proprietary information, regardless of how the information is stored, which is delivered to the User before, on or after the date of commencement of the Licence, relating to product information services or the business, technology or other affairs of the Company. “the Contract” means the agreement between the parties comprising these General Terms. “the Order” means the monthly subscription authorised by the User. “User Materials” means any and all data, information, content, photographs and other materials provided or that may be supplied to the Company by the User (or otherwise obtained by the Company from the User), directly or indirectly, from time to time. “Effective Date” is the date of payment of the first Monthly Instalment. “Excluded Information” means Confidential Information which: (a) is in or becomes part of the public domain other than through breach of this Contract or an obligation of confidence owed to the Company; (b) the User acquires from a source other than the Company where such source is entitled to disclose it. “GST” has the meaning it has in the A New Tax System (Goods and Services Tax) Act 1999 (Cwlth). “Insolvent” means, with respect to an entity, that such entity is or states that it is insolvent, is unable to pay its debts as they come due, is in liquidation, is under administration or has a controller appointed to its property, ceases conducting business in the normal course, or is subject to any arrangement to protect itself from creditors or dissolves. “Law” means the common law, principles of equity, and laws made by parliament (including State, Territory and Commonwealth laws and regulations and other instruments under them, and any consolidations, amendments, re-enactments or replacements of any of them). “Party” and “Parties” means the Company and the User. "the Software" means, collectively: (a) the object code form of any software provided by the Company to the User delivered via a web page or in any other manner; (b) all the contents of the disk(s), CD-ROM(s), electronic mail and file attachments, or other media provided to the User by the Company; (c) digital images, stock photographs, clip art, or other artistic works ("Stock Files"); (d) related explanatory written materials and any other possible documentation related thereto ("Documentation"); (e) fonts, and (f) upgrades, modified versions, updates, additions, and copies of the Software (collectively “Updates”), if any, licensed to the User by the Company under the Contract. “Support Services” means: (a) updates of the Software, including any version upgrades; (b) technical support via Internet and phone-line provided by the Company; (c) any online manual provided by the Company; “the Term” means the period from the Effective date specified in the Order until one party terminates the Contract. “the User” means the person or company requesting the grant of a software licence to utilise the Sightsee Tour Management Software on whose behalf the Order is aurthorised. |
| 1.2 | The headings in this document are for convenience of reference only and will not affect the interpretation hereof. Words importing the singular number will include the plural and vice versa, and words importing the masculine gender include all other genders. |
| 2. TERM OF USE
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| The web sites: www.sightsee.com.au, www.sightseeinternational.com, www.sightseeinternational.com.au, and www.sightsee.co.nz are owned and operated by the Company. Access to such website is conditional upon its acceptance and compliance with the terms, conditions and disclaimers within this document and anywhere else on the website. The User’s use and access to and of the website constitutes agreement to these General Terms. The Company has the right to modify these General Terms from time to time. If the Company modifies the General Terms and advises the User in writing (including by email) of such change and the User does not object to such change within 30 days the User shall be deemed to have agreed to such change to the General Terms on expiry of such period of 30 days. | |
| 3. LICENSE GRANT
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| Subject to the payment of the monthly subscription fee, and subject to these General Terms, the Company hereby grants the User the non-exclusive, non-transferable right to use the Software and the accompanying Documentation for the Term of the User Agreement, solely for its own internal business purposes. |
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| 4. RESTRICTION OF USE | |
| 4.1 | The intellectual property rights (including copyright) in all information (including graphics, text, source code and advertisements on the website) are owned and/or controlled by the Company, its suppliers and/or licensors unless expressly indicated otherwise on the website. No interest in such intellectual property rights shall pass to the User. |
| 4.2 | Unless stated otherwise in the Documentation, the User shall not display, modify, reproduce, distribute, copy, republish, upload to a third party, post, transmit or distribute any object code form or any of the Stock Files included with the Software. In the event that the Documentation allows the User to display the Stock Files, the User shall not distribute the Stock Files on a stand-alone basis, i.e., in circumstances in which the Stock Files constitute the primary value of the product being distributed. Stock Files may not be used in the production of defamatory, fraudulent, infringing, lewd, obscene, or pornographic material or in any otherwise illegal manner. The User may not register or claim any rights in the Software or Stock Files or derivative works thereof. |
| 5. DURATION | |
| 5.1 | This Agreement commences on the Effective Date and shall apply for the duration of the User’s use of the Software. |
| 5.2 | The Company gives a 30 day money-back guarantee. If the User advises the Company in writing within 30 days from the Effective Date that it no longer wishes to use the Software, the first instalment payment (only) will be refunded to the User. The Set-up fee is non-refundable. |
| 5.3 | The User agrees that if monthly payment instalments are not received by the Company on or before the due date in each month then the Company has the right to terminate this Agreement within 14 days. If Termination occurs within 12 months from the Effective Date, the User is still liable to pay the first 12 months fees. |
| 6. TERMINATION | |
| 6.1 | Either Party may terminate this Agreement by giving 30 days notice in writing to the other Party at any time. |
| 6.2 | The Company will have the right to terminate the Contract immediately upon written notice to the User if the User uses or discloses any Confidential Information other than as expressly permitted under this Contract. |
| 6.3 | If this Contract is terminated, all of the User’s rights to use the Software will immediately terminate, and the User will at its expense promptly return (or at the Company’s election destroy) any copies of Confidential Information that are either in the User’s possession or under the User’s control. |
| 6.4 | Termination of this Contract will not act as a waiver of any breach of this Contract and will not act as a release of either Party from any liability for breach of such Party’s obligations under this Contract. Neither Party will be liable to the other for damages arising by reason of termination of this Contract in accordance with its terms. Either Party’s termination of this Contract will be without prejudice to any other right or remedy that it may have, and will not relieve either Party of any obligation or liability which arose prior to the effective date of such termination. |
| 7. USE
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| 7.1 | The Software is deemed ‘in use’ on a computer when accessed via the web using the unique login and password supplied to the User. This license authorises the User to make as many back-up copies of the data that is entered into the Software as is reasonably required by the User. The Company will not be responsible for data entry backing up, saving or loss of any data entered by the User. |
| 7.2 | The User shall not decompile, reverse engineer, disassemble or otherwise reduce any part of this Software to humanly readable form, nor permit any third party to do so. |
| 7.3 | The User shall not make error corrections to, or otherwise modify, adapt, or translate the Software, nor create derivative works of the Software, nor permit any third party to copy (other than as expressly permitted herein). |
| 7.4 | The User shall not rent, lease or lend the Software to any other person or company, nor transfer or sublicense its license rights to any other person or company. |
| 8. SUPPORT
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| 8.1 | The Company will provide the User with the Support Services comprising of phone support during normal business hours and an online support ticket service via www.sightsee.com.au/support/ . A support enquiry will be answered within 3 business days of the phone or email request. |
| 8.2 | All support requests are logged and an email response will be sent regarding the support ticket. You must have a valid email address in order to receive support. |
| 8.3 | Support will not be given unless all licensing fees are paid up to date. |
| 8.4 | An emergency number will be available for weekends and afterhours service. This number should only be used for site down emergencies and urgent support requests. After hours emergency support will be billed at $240 plus GST per hour, with a one hour minimum charge. |
| 8.5 | Support Services will cease upon termination of the Contract pursuant to Clause 6. |
| 9. OWNERSHIP RIGHTS
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| The Software is protected by copyright laws. The Company and its suppliers own and retain all rights, titles and interests in and to the Software, including all copyrights, patents, trademarks and other intellectual property rights therein. The User’s possession or use of the Software does not transfer any title to the intellectual property in the Software to the User, and the User will not acquire any rights to the Software except a right of use as expressly set forth in this Contract. |
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| 10. TRAINING
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| 10.1 | The Company will provide a two hour phone-based training session. If additional training is required it will be charged at $120 plus GST, per hour. |
| 10.2 | Sightsee users are given access an online manual and a range of video demonstrations of key concepts. If a user has any questions they can use the support services a specified in Clause 8. |
| 11. LIMITED WARRANTY
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| 11.1 | The Company warrants that for 12 months from first login, the web-based Software used will perform substantially in accordance with the functionality described in the Documentation when operated properly and in the manner specified in the Documentation. |
| 11.2 | The User accepts sole responsibility for the selection of the Software to meet its requirements. The Company does not warrant that the Software or Documentation will be suitable for the User’s requirements, nor that any use will be uninterrupted or error free. |
| 11.3 | The User’s sole remedy and the entire liability of the Company for breach of warranty in paragraph 11.1 will be (at the Company’s option) to repair, refund or update the Software if any error or failure to operate is reported to the Company promptly in writing during the warranty period. The User shall provide all information as may be reasonably necessary to assist the Company in resolving the defective item. |
| 11.4 | The warranty in paragraph 11.1 shall not apply if the User: (a) makes or cause to be made any modifications to the Software without the consent of the Company; (b) uses the Software in a manner for which it was not intended; or (c) uses the Software other than as permitted under this Contract. |
| 11.5 | The warranties and conditions stated in this Contact are in lieu of all other conditions, warranties or other terms concerning the supply or purported supply of, failure to supply or delay in supplying access to the Software or the Documentation which might but for this paragraph 1.1 have effect between the Company and the User, or would otherwise be implied into or incorporated into this Contract or any collateral contract, whether by statute, common law or otherwise, all of which are hereby excluded (including, without limitation, the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or as to the use of reasonable skill and care). |
| 12. LIMITATION OF LIABILITY | |
| 12.1 | Nothing in this Agreement shall exclude or limit the Company’s liability for any liability which by law cannot be excluded. |
| 12.2 | Subject to paragraph 12.1 above, the Company shall bear no liability (whether in contract, tort, restitution or otherwise) for any of the following losses or damage (whether such losses or damage were foreseen, foreseeable, known or otherwise): (a) loss of revenue; (b) loss of actual or anticipated profits (including for loss of profits on contracts); (c) loss of the use of money; (d) loss of anticipated savings; (e) loss of business; (f) loss of opportunity; (g) loss of goodwill; (h) loss of reputation; (i) loss of, damage to or corruption of data, or: (j)any indirect or consequential loss or damage howsoever caused (including, for the avoidance of doubt, where such loss or damage is of the type specified in paragraphs 12.2(a) to (j). |
| 12.3 | Subject to paragraph 12.1, the liability of the Company arising out of or in connection with the supply of the Software shall in no circumstances exceed a sum equal to the amount actually paid by the User to the Company for the use of the Software. |
| 13. DEFAULT
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| If the User fails to pay any moneys due pursuant to the Contract by the due date the User shall pay interest to the Company on such moneys at 2% per month or part thereof until the Company receives payment in full. |
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| 14. PROPER LAW, JURISDICTION
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| 14.1 | Choice of law The formation, validity, construction and performance of the General Terms shall be governed by and construed in accordance with the laws of the State of Queensland, Australia. The General Terms shall be deemed entered into in Maroochydore, Queensland, and the parties agree that the courts of Queensland shall have the non-exclusive jurisdiction to hear and determine all disputes under or in connection with these General Terms. The parties waive any objections to the State of Queensland as the exclusive forum for proceedings on the grounds of forum non-convenes or any similar grounds. |
| 14.2 | Jurisdiction Actions, suits or proceedings relating in any way to these General Terms or documents or dealings contemplated by it, may be instituted, heard and determined in a court of competent jurisdiction in Queensland. |
| 14.3 | Submission to jurisdiction Each party irrevocably submits to the non-exclusive jurisdiction of such court for the purpose of any such action, suit or proceeding. |
| 15. ENTIRE UNDERSTANDING
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| This Contract contains the entire understanding between the parties with respect to the subject matter hereof and supersedes all and any prior understandings, undertakings and promises between the User and the Company, whether oral or in writing, which have been given or may be implied from anything written or said in negotiations between the Company or its representatives prior to this Contract and all prior agreements between the parties relating to such matters shall cease to have effect as from the Effective Date. |
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