FoodWorks License Agreement

FOODWORKS END USER LICENSE AGREEMENT

1. THIS AGREEMENT

1.1 Accepting this Agreement

(a) By downloading or using the Software, you agree to comply with and be bound by the terms and conditions of this Agreement.
(b) It is your obligation to ensure that you have read, understood and agree to the terms of this Agreement.

1.2 Disclaimer

You acknowledge:

(a) we do not guarantee the accuracy or completeness of the Proprietary Data contained in or delivered with the Software, therefore errors may arise in calculations and the results generated by the Software;
(b) there are limitations and variances associated with the scientific and computerized nutritional analysis.
(c) you will use your own professional judgment and satisfy yourself of the suitability of the Software for the purpose you are using it;
(d) the use of the Software requires skill and expertise in a field relevant to the purpose of its use including dietetics, nutrition, food technology and knowledge of relevant regulations;
(e) we make no representation the Software will ensure you are compliant with any regulation, guideline or requirement including:

(i) those contained in the Australia New Zealand Food Standard Code;
(ii) the guidelines published in the Nutrient Reference Values for Australia and New Zealand, Australian Government, Department of Health and Ageing, NHMRC, 2005; or
(iii) any other food, nutrition or health-related standard or regulation;

(f) our use of third party data with the Software does not represent an endorsement of the accuracy or reliability of those data sources;
(g) our Software may from time to time contain bugs and errors which do not substantially interfere with its normal operations;
(h) all data and results from or generated by the Software should be expertly reviewed before relying on them in any important matter;
(i) nothing in our Software should be construed as medical, legal or regulatory advice; and
(j) using the Software is no substitute for obtaining medical advice.

1.3 Contacting us

Please email us at info@xyris.com.au if you have any questions relating to these terms and conditions.

2. DEFINITIONS

Unless the terms and conditions of the Agreement explicitly state otherwise, expressions used in the Agreement have the following meanings:

'Agreement' means the terms and conditions contained herein.

'Confidential Information' means information that is by its nature confidential including:

(a) recipes;
(b) dietary data and the analysis thereof;
(c) nutritional information, food composition tables and databases;

but does not include:

(a) information already known to the receiving party at the time of disclosure by the other party; or
(b) information in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under this Agreement.

'GST' means goods and service tax as defined in GST Law.

'GST Law' means the same as "GST law" in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

'Intellectual Property Right' means all present and future rights conferred by statute, common law or equity (and all Moral Rights) in, or in relation to, business names, circuit layouts, computer software, confidential information, copyright, designs, domain names, formulas, inventions, knowhow, patents, plant varieties, recipes, trade marks, and other results of intellectual activity in the industrial, academic, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.

'License' means the license of Software granted pursuant to this Agreement.

'License Fee' means the amount payable by you to us for the edition and version of the Software used by you, as set out on our Website or as otherwise communicated to you at the time the purchase was made.

'Moral Right' means:

(a) a right of attribution of authorship;
(b) a right not to have authorship falsely attributed;
(c) a right of integrity of authorship; or
(d) a right of a similar nature;

which is conferred by statute, and which exists or comes to exist anywhere in the world in a deliverable form.

'Non-Excludable Condition' means any guarantee, condition or warranty (such as the consumer guarantees implied by the Competition and Consumer Act 2010 (Cth)), which cannot by law be excluded.

'Privacy Law' means:

(a) the Privacy Act 1988 (Cth); and
(b) any code registered under the Privacy Act or Australian Privacy Principles.

'Privacy Policy' means the privacy policy available on the Website as amended by us from time to time.

'Product Information' means all user documentation and instructional information provided for the Software, including all documentation, files, webpages and videos available via our Support Site, the Website and as otherwise provided which are relevant to the Software you hold a License for.

'Product Support Services' means reasonable use of our technical support via telephone, email and submissions made through our support site.

'Proprietary Data' means the food composition tables, nutritional data and other information provided with the Software and includes third-party data.

'Representative' includes an employee, agent, officer, director, auditor, advisor, researcher, partner, consultant, contractor, sub-contractor or related entity of that person or of a related body corporate of that person.

'Software' means the edition of the FoodWorks application family (including Professional, Nutritional Labelling, Premium and any student or cloud hosted derivatives), its related Product Information and any Proprietary Data forming part of the software which you purchase a license to from us.

'Subscription Service' takes its meaning from clause 5(e) and previously known as the Maintenance and Support Plan, or MSP.

'Subscription Period' means period of time you purchased the subscription for.

'Support Site' means the website located at https://support.xyris.com.au/hc/en-us.

'Update' means software which has been produced primarily to overcome defects in the licensed Software.

'Upgrade' means new releases of the Software with new or enhanced features.

'You' means a person or entity who purchases the Software.

'Us', 'we', 'our' or 'Xyris' means Xyris Software (Australia) Pty Ltd ACN 010 953 312.

'Website' means the website located https://xyris.com.au/.

3. SOFTWARE LICENSE

(a) Subject to clause 4, upon receipt of the License Fee, we grant a non-transferrable, non-sublicensable, royalty free, revocable and perpetual license for you to use the Software on the terms set out in this Agreement.
(b) A License is required for each user of the Software.
(c) The Software may be installed on more than one computer for the use solely by the licensed user.
(d) Subsequent Licenses for multi-user sites are available at the price set out on the Website or as otherwise communicated to you. Should you require additional user licenses they may be obtained by contacting us via info@xyris.com.au.

4. TRIAL, STUDENT AND EDUCATIONAL LICENSES OF THE SOFTWARE

4.1 Trial versions

(a) We may at our sole discretion make available trial versions of the Software.
(b) Your license to use the trial version of the Software automatically expires 14 days after you start the trial.
(c) If you continue to use the Software after the 14 day trial period you must pay to us the License Fee.

4.2 Student Licenses

(a) Tertiary students who are enrolled to study at a recognized tertiary institute may obtain a limited License to use the Software.
(b) To receive a student License you must:

(i) be enrolled at a recognised tertiary institute;
(ii) either sign up using the email address issued by the tertiary institute or provide a copy of your student identification.

(c) The License to the Software granted to students is limited to:

(i) the duration of the License subscription selected at the time you pay for the License and automatically terminates at the end of that duration; and
(ii) use strictly for your own personal studies and must not be used in any commercial or work setting of any kind.

(d) Purchasing a student License does not grant you access to the Product Support Services.

4.3 Educational Licenses

(a) Secondary and tertiary academic institutes may purchase a License at the special educational price obtained by contacting us via info@xyris.com.au or telephone.
(b) If you obtain an educational License you must only use the Software for educational purposes.

5. PRODUCT SUPPORT AND INFORMATION

(a) We will provide you with access to our Support Site which contains Product Information.
(b) You acknowledge our proprietary interest in the contents of our Support Site. You will not copy the Product Information except where it is necessary to enable proper use of the Software in the manner reasonably contemplated by the parties.
(c) While we value your feedback we are not obligated to make any amendments to our Software or provide bespoke solutions for any one or any group of customers.
(d) Subject to clause 4.2(d), the initial payment of the License Fee entitles you to access to our Subscription Service for the Subscription Period.
(e) For the duration of the Subscription Period, the Subscription Service provides you with:

(i) access to our Product Support Services;
(ii) access to all Updates for the edition of the Software License you purchase; and
(iii) a License to all Upgrades of the edition of the Software License you purchase.

(f) We are not required to provide installation services or access to the Product Support Services beyond what we, in our sole discretion, consider reasonable use.
(g) To maintain your access to our Product Support Services, Updates and Upgrades to the Software you must renew your Subscription at the end of the Subscription Period.

6. INSTALLATION

6.1 Installation

Other than as specified in this Agreement, we are not liable to:

(a) install the Software;
(b) install Updates or Upgrades to the Software; or
(c) provide training or any other services.

6.2 Installation of Updates and Upgrades

You are responsible for:

(a) backing up the Software prior to installing Updates or Upgrades; and
(b) thoroughly testing the Software following installation of Updates or Upgrades.

7. GST

(a) Words defined in the GST Law have the same meaning in this clause, unless the context makes it clear that a different meaning is intended.
(b) The Licence Fee as set out on our Website or as otherwise communicated to you at the time the purchase was made is inclusive of GST.
(c) We must, within 28 days of request from you, issue a tax invoice to you for any supply under or in connection with this Agreement.
(d) You are solely responsible for providing evidence of being GST exempt, which in our sole discretion we deem acceptable, before any Software is provided on a GST exempt basis.

8. INTELLECTUAL PROPERTY

8.1 Our intellectual property

(a) We warrant we own or have a License to the Intellectual Property Rights in the Software.
(b) Nothing in this Agreement:

(i) is intended to transfer our Intellectual Property Rights in the Software or Proprietary Data to you; or
(ii) intends to transfer any Intellectual Property Rights you have in the data you enter into the Software to us.

8.2 Undertakings regarding intellectual property

You warrant that you will not do any of the following, or permit any person over whom you have effective control to do so:

(a) create an adaptation or translation of, all or part of the Software including the Proprietary Data and Product Information;
(b) sell, license, sublicense, lease, rent, distribute, disclose, permit access to, or transfer to any third party, whether for profit or without charge, any portion of the Software including the Proprietary Data and Product Information; or
(c) subject to clause 9, directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, or algorithms contained in the Software, including the Proprietary Data and Product Information.

9. COPIES

(a) Subject to the following subclauses, and without seeking to exclude or limit the application of sections 47B(3), 47C, 47D, 47E or 47F of the Copyright Act 1968 (Cth) you must not copy the Software, in whole or in part.
(b) You may make copies of the Software as is necessary to serve your internal needs for system's backup and security. All copies of the Software remain our property.
(c) You must notify us immediately on becoming aware of any unauthorised use or copying of the whole or any part of the Software or the Product Information.

10. SECURITY

You will be responsible for:

(a) protecting the Software from unauthorised access, use or damage;
(b) backing up the Software and your data; and
(c) maintaining copies of your data external to the Software if you require that data beyond the scope of the License we provide.

11. WARRANTIES

(a) We warrant the Software:

(i) will perform substantially in accordance with the Product Information;
(ii) is fit for the purposes expressed in the Product Information and this Agreement; and
(iii) is of acceptable quality.

(b) The warranty contained in subclause 11(a):

(i) is subject to you having fully complied with your obligations under this Agreement;
(ii) is not a warranty that the results obtained from the Software will be in accordance with your expectations; and
(iii) does not operate where the substantial non-performance arises in any respect from the installation of the Software, the nature or operation of the equipment on which the Software is used (except where we provide the equipment).

12. INDEMNITIES

(a) Subject to subclause 12(b), we shall indemnify and hold you harmless against any claim made against you by a third party alleging that the Software infringes the copyright of that third party.
(b) We shall not be liable to you under subclause 12(a) if:

(i) you do not notify us of the other person's claim or of alleged infringement of copyright within seven days after becoming aware of the claim;
(ii) our ability to defend the claim has been prejudiced by your non-compliance with any of your obligations under this Agreement;
(iii) you do not give us reasonable assistance in defending the claim;
(iv) the claim has arisen because of the use of the Software in combination with equipment, materials or computer programs not supplied or approved by us;
(v) you do not permit us to have control of the defence of the claim and all related settlement negotiations.

(c) You indemnify us and our Representatives against all costs suffered or incurred, however caused, arising wholly or partially, directly or indirectly, in connection with this Agreement or your use of the Software, including any costs arising from:

(i) your breach of this Agreement;
(ii) your failure to include correct information while placing orders for the Software;
(iii) you or any of your authorised user’s infringement of any Intellectual Property Rights; or
(iv) your breach of any Privacy Laws.

13. LIMITATION OF LIABILITY

You acknowledge and agree you are acquiring the Software under this Agreement for commercial purposes and not for domestic, personal or household use.

13.1 Implied Conditions

We exclude all implied guarantees, conditions and warranties from this Agreement except any Non-Excludable Condition.

13.2 Liability

(a) To the maximum extent permitted by law, we exclude all liability for any consequential loss, negligence or other losses suffered or incurred directly or indirectly, including in connection with:

(i) incorrect or corrupt data, lost data, or any inputs or outputs of the Software;
(ii) computer virus, trojan and other malware;
(iii) security vulnerabilities in the Software or any breach of security that results in unauthorised access to, or corruption of data;
(iv) your breach of this Agreement; or
(v) any act or omission by you, your personnel or any related body corporate in relation to this Agreement.

(b) Where a Non-Excludable Condition is deemed to apply, to the fullest extent possible under the law, we limit our liability for any breach to:

(i) in the case of goods: the re-supply of the goods or payment of the cost of the re-supply of the goods; or the replacement or repair of the goods or payment of the cost of replacement or repair of the goods; and
(ii) in the case of services: the resupply of the services; or the payment of the cost of having the services resupplied.

14. TERMINATION

(a) For the purpose of this Agreement, each of the following is a Terminating Event:

(i) the breach or threatened breach by either party of any of its material obligations under this Agreement; and
(ii) any circumstance beyond our reasonable control which significantly limits our capacity to provide the Software.

(b) If a Terminating Event occurs, the affected party must give the other party written notice, requiring the breach to be remedied.
(c) If the breach is not remedied within 14 days of receiving written notice the affected party may:

(i) agree to waive its rights under this clause; or
(ii) immediately terminate this Agreement.

(d) Immediately on termination of this Agreement:

(i) we may, in our sole discretion, revoke your License to use the Software; and
(ii) you must cease using our Product Support Services.

(e) Subject to subclause 14(d), the termination of this Agreement will not affect any accrued rights or liabilities of either party, nor shall it affect any provision of this Agreement which is expressly or by implication intended to continue in force after such termination.

15. CONFIDENTIALITY

(a) A party will not, without the prior written approval of the other party, disclose the other party's Confidential Information.
(b) A party will not be in breach of subclause 15(a) in circumstances where it is legally compelled to disclose the other party's Confidential Information.
(c) Each party will take all reasonable steps to ensure that its employees, agents, and any sub-contractors engaged for the purposes of this Agreement, do not make public or disclose the other party's Confidential Information.
(d) Notwithstanding any other provision of this clause, a party may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.
(e) This clause will survive the termination of this Agreement.

16. PRIVACY POLICY

(a) You agree and consent to the handling of personal information in accordance with our Privacy Policy.
(b) We may amend our Privacy Policy in our sole discretion. If we amend our Privacy Policy, we will post the new Privacy Policy on our Website.
(c) This clause will survive the termination of this Agreement.
(d) By downloading and/or using FoodWorks you consent to receive periodic email or other communications regarding our services, new product offers, promotions and other matters. This consent may be withdrawn by you on notice to us.

17. DISPUTE RESOLUTION

17.1 Dispute Resolution Process

(a) Subject to clause 17(f) any Dispute which arises between the parties in connection with this Agreement (Dispute) must be dealt with in accordance with the requirements of this clause 17, before either party will be entitled to commence proceedings against the other party in respect of the Dispute.
(b) The party claiming that a Dispute has arisen (Complainant) must give the other party a written notice setting out a detailed explanation of the nature of the Dispute; and what action the Complainant thinks will resolve the Dispute (Dispute Notice).
(c) Within 10 Business Days of the Dispute Notice being received by the other party, a nominated senior executive of each party must meet in Brisbane Queensland (unless otherwise agreed between the parties), act in good faith and use best endeavors to resolve the Dispute at that meeting, or such subsequent meetings as may be reasonably required.
(d) If the Dispute is not resolved pursuant to clause 17(c) within 30 days of the Dispute Notice being received by the other party, the parties agree to attend a privately held mediation with a mediator appointed by the nominated senior executive or both parties and in the absence of Agreement within 7 days of disagreement by such mediator as appointed by the President, or person in like office of the Resolution Institute.
(e) If the Dispute is not resolved within 30 days of the mediation anticipated in clause 17(d) then either party may commence proceedings against the other party in respect of the Dispute.
(f) Nothing in this clause 17 prevents a party from seeking urgent injunctive or similar relief from a court.

17.2 Dispute resolution not to apply to debts

The Dispute resolution procedure set out in this clause 17 will not apply in any instance where we seek to enforce a debt in connection with this Agreement.

18. GENERAL AND INTERPRETATION

18.1 Assignment

We may assign, encumber, declare a trust over or otherwise create an interest in our rights under this document without your consent, and may disclose to any potential holder of the right or interest any information relating to this document or any party to it.

18.2 Governing law

The laws of Queensland, Australia govern this Agreement. The parties submit to the non exclusive jurisdiction of courts exercising jurisdiction there.

18.3 Operation of this document

(a) This document contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this document and has no further effect.
(b) Any right that a person may have under this document is in addition to, and does not replace or limit, any other right that the person may have.
(c) Any provision of this document which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this document enforceable, unless this would materially change the intended effect of this document.

18.4 Relationship

Nothing in this Agreement is intended to create or be construed as creating a relationship of agency, joint venture or partnership between any of the parties. No party may act as agent of or in any way bind another party to any obligation.

18.5 Reliance

Neither party has entered into any contract under this Agreement in reliance on or as a result of any representation, promise, statement, conduct or inducement by the other otherwise than as set out in this Agreement.

18.6 Interpretation

Unless the terms and conditions of the Agreement explicitly state otherwise, the Agreement will be interpreted as follows:
(a) a reference to a party includes that party's permitted assigns, administrators, successors, executors, legal representatives and any novated party;
(b) any reference to a trustee includes any substituted or additional trustee;
(c) unless used for the usual grammatical purpose, inverted commas around a term indicate industry jargon that will be interpreted according to how that term would be understood by an individual with expertise in the relevant industry;
(d) "including", "includes" or any derivation of those words does not limit the matter in question to the things specifically mentioned in the applicable context;
(e) where a term is defined, other grammatical forms of that term will be taken to have the same meaning;
(f) headings are for convenience and will not affect interpretation;
(g) words in the singular will be taken to include the plural and also the opposite;
(h) "$" means the Australian dollar;
(i) a reference to a document will be to that document as updated, varied or amended;
(j) a document referenced by the Agreement will not take precedence over the referencing document;
(k) when any kind of legislative instrument is referenced, the reference will be taken to be that instrument as updated or substituted for by the legislative body in any way;
(l) any referenced digital resource may be replaced with another digital resource that is a "copy" of the original resource;
(m) a reference to a party's conduct includes omissions as well as acts; and
(n) if a party is described as having discretion in a matter, the discretion in that matter will be interpreted as sole and absolute.
(o) 3463-9452-4428, v. 1

Xyris Software (Australia) Pty Ltd
ACN 010 953 312
2 July 2019

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