PULSE SMALL TEAM SOFTWARE LICENSE AGREEMENT
1. Licenses and Software
Zutubi Pty Ltd, an Australian Proprietary Limited Company ("ZUTUBI") hereby grants to the purchaser (the "LICENSEE") a limited, revocable, worldwide, non-exclusive, nontransferable, non-sublicensable license to use the Pulse software (the "Software"), including any upgrades thereof during the Maintenance Period (hereinafter defined). The licensee shall not, or knowingly allow others to, reverse engineer, decompile, disassemble, modify, adapt, create derivative works from or otherwise attempt to derive source code from the Software provided. And, in accordance with the terms and conditions of this Software License Agreement (the "Agreement"), the Software shall be used solely on the licensed machine(s).
2. Proprietary Rights
ZUTUBI will retain all right, title and interest in and to the Software, all copies thereof, and ZUTUBI website(s), software, and other intellectual property, including, but not limited to, ownership of all copyrights, look and feel, trademark rights, design rights, trade secret rights and any and all other intellectual property and other proprietary rights therein. The Licensee will not directly or indirectly obtain or attempt to obtain at any time, any right, title or interest by registration or otherwise in or to the trademarks, service marks, copyrights, trade names, symbols, logos or designations or other intellectual property rights owned or used by ZUTUBI. All technical manuals or other information provided by ZUTUBI to the Licensee shall be the sole property of ZUTUBI.
Subject to the other provisions hereof, this Agreement shall commence upon the Licensee's opting into this Agreement and continue until the Licensee discontinues use of the Software or the Agreement terminates automatically upon the Licensee's breach of any term or condition of this Agreement. Upon any such termination, the Licensee will delete the Software immediately.
4. Copying & Transfer
The Licensee may copy the Software for back-up purposes only. The Licensee may not assign or otherwise transfer the Software to any third party.
5. Specific Disclaimer of Warranty and Limitation of Liability
THE SOFTWARE IS PROVIDED WITHOUT WARRANTY OF ANY KIND. ZUTUBI DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ZUTUBI WILL NOT BE LIABLE FOR ANY DAMAGES ASSOCIATED WITH THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, ORDINARY, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DAMAGES RELATING TO LOST DATA OR LOST PROFITS, EVEN IF ZUTUBI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. Warranties and Representations
Licensee Indemnification. ZUTUBI agrees to indemnify, defend and hold the Licensee harmless from and against any and all liabilities, damages, losses, claims, costs, and expenses (including reasonable legal fees) arising out of or resulting from the Software or the use thereof infringing upon, misappropriating or violating any patents, copyrights, trademarks, or trade secret rights or other proprietary rights of persons, firms or entities who are not parties to this Agreement.
ZUTUBI Indemnification. The Licensee warrants and represents that the Licensee's actions with regard to the Software will be in compliance with all applicable laws; and the Licensee agrees to indemnify, defend, and hold ZUTUBI harmless from and against any and all liabilities, damages, losses, claims, costs, and expenses (including reasonable legal fees) arising out of or resulting from the Licensee's failure to observe the use restrictions set forth herein.
The Licensee grants permission for ZUTUBI to use Licensee's name solely in customer lists. ZUTUBI shall not, without prior consent in writing, use the Licensee's name, or that of its affiliates, in any form with the specific exception of customer lists. ZUTUBI agrees to remove Licensee's name from any and all materials within 7 days if notified by the Licensee in writing.
8. Governing Law
This Agreement shall be governed by the laws of New South Wales, Australia.
9. Independent Contractors
The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the parties.
This Agreement is not assignable or transferable by the Licensee. ZUTUBI in its sole discretion may transfer a license to a third party at the written request of the Licensee.
11. Entire Agreement
This Agreement constitutes the entire agreement between the parties concerning the Licensee's use of the Software. This Agreement supersedes any prior verbal understanding between the parties and any Licensee purchase order or other ordering document, regardless of whether such document is received by ZUTUBI before or after execution of this Agreement. This Agreement may be amended only in writing by ZUTUBI.