SOFTWARE LICENSE AGREEMENT AND TERMS & CONDITIONS APPLICABLE TO AGDATA SOFTWARE
1. License Agreement
1.1 This license agreement is between AGDATA Holdings Pty Ltd trading as AGDATA Australia (AGDATA) and the person, corporation, association or entity whose details have been provided to AGDATA at the time of purchasing a license to operate any Software Program produced or supplied by AGDATA (the Licensed User).Use of any software supplied by AGDATA, including but not limited to software programs known as “Phoenix Financial Pro”, “Phoenix Financial”, “Phoenix Financial Lite”, “Phoenix Budget Planner”, “Phoenix Power Budgets”, “Phoenix Mapping”, “Phoenix Cropping”, “Phoenix Livestock”, “Phoenix Grazing” and/or “Phoenix Weather” (hereinafter referred to collectively as "the Software" and hereinafter referred to individually as “the Software Program”) is subject to the terms and conditions stated in this License Agreement.
1.3 Activation of a Software Program by a Licensed User associates the use of the Software Program with a specific device or computer. During activation, the Software Program will send information about the Software Program and the device or computer to AGDATA. This information includes the version, the license version, language and product key of the Software Program, the internet protocol address of the device or computer and information derived from the Microsoft Windows installation of the device. By activating the Software Program, you consent to the transmission of this information. Unless the Software Program is activated, you have no right to use the Software Program. This is to prevent unlicensed use. You are not permitted to bypass or circumvent the activation process.
1.4 BEFORE ACTIVATING ANY SOFTWARE, PLEASE READ THIS LICENSE AGREEMENT VERY CAREFULLY. BY ACTIVATING A SOFTWARE PROGRAM, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT ACTIVATE ANY SOFTWARE SUPPLIED BY AGDATA. Instead, return the Software to the place of purchase together with all packaging, manuals and other material, documents or information provided to you at the time of purchase. A repackaging and/or a restocking fee may apply.
2. Permitted Use
2.1 Subject to these Terms & Conditions and in consideration for the payment of the applicable License Fee to AGDATA for each Software Program that the Licensed User intends to activate, AGDATA grants to the Licensed User a non-exclusive and non-transferable license to use the respective Software Program on one computer (the Authorised Computer) from the date the Licensed User purchased the license until such time as the license expires in accordance with these Terms & Conditions. All Software Programs are licensed, not sold to the Licensed User. This License Agreement only gives you some rights to use the features of one or more Software Programs for which you have paid the applicable subscription fee. Some functionality is only available for a fee in addition to the applicable subscription fees. Any such additional fees and charges to the Licensed User are specified at the time of enabling such functionality within the Software. By way of example, Bank Feeds may only be available for additional charge.
2.2 All AGDATA Software is supplied for installation onto one Authorised Computer only, and the Licensed User shall take all necessary steps to ensure that the Software is not installed or copied onto any computer other than the Authorised Computer unless in accordance with these Terms & Conditions. For the sake of clarity, all AGDATA software is licensed on a per copy per device basis. A hardware partition or blade is considered to be a separate device.
2.3 Hardware or software that you may use to pool connects, reroute information or reduce the number of devices or users that directly access or use AGDATA Software (sometimes referred to as “multiplexing” or “pooling”) does not reduce the number of licenses you need to operate the Software or a Software Program.
2.4 If you are licensed to use a Software Program on a subscription basis, your rights to use the Software Program are limited to the subscription period.
3. Copyright, Reproduction & Use for Intended Purpose
3.1 The Software is Copyright (C) 2006-2020 by AGDATA Holdings Pty Ltd trading as AGDATA Australia, 122 Russell Street, Toowoomba, QLD, 4350, Australia. The program code of the Software is subject to strict copyright and remains the sole property of AGDATA. The Licensed User is hereby expressly prohibited from, or enabling a third party to adapt, disassemble, decompile, or reverse engineer the Software or a Software Program, whether in whole or part.
3.2 All manuals and all other written material relating to a Software Program, supplied by AGDATA to the Licensed User are also subject to strict copyright. No part of those manuals or materials may be reproduced, stored in a retrieval system, or transmitted in any form without the prior written permission of AGDATA Australia.
3.3 The Licensed User acknowledges and agrees that, as between AGDATA and the Licensed User, all rights and/or intellectual property in any Software or Software Program belongs to and vests in AGDATA alone. Nothing in this agreement will be constructed as conferring upon the Licensed User any right or interest in the intellectual property rights other than the license to use the Software Program in accordance with the terms and conditions stated herein. The Licensed User hereby agrees to indemnify AGDATA against all liabilities, costs and expenses that AGDATA may incur as a result of any act or omission by the Licensed User which results in the infringement, or any challenge to the sole ownership by AGDATA of any of the intellectual property rights in the Software or a Software Program, by the Licensed User or a party being assisted by the Licensed User.
3.4 The Licensed User is expressly prohibited from selling, leasing, lending, sub-letting, distributing or otherwise transferring, in any form, the Software to any person, corporation or entity without the express written permission of AGDATA. It is illegal to make or distribute copies of the Software except to make a backup copy for archival purposes only. Duplication of the Software for any other reason including sale, loan, rental, or gift is illegal. The Software is supplied to the Licensed User solely for the management of the Licensed User`s financial, trading and production data only.
3.5 The Licensed User is expressly prohibited from modifying, adapting, translating, reverse engineering, decompiling or disassembling the Software and/or any Software Program, or creating another computer program based, whether in whole or in part, on the Software or any Software Program.
3.6 No Software Program may be used to record or create financial, trading or production data belonging to any person or entity that the Licensed User has no financial interest in. For the sake of clarity, a Software Program may only be used by a Licensed User for its own internal business purposes and the Licensed User must not provide any Software Program or the benefit of any Software Program to any other person or entity unless expressly agreed to by AGDATA.
4. Acceptance of Terms & Conditions of Affiliated or Associated Software
4.1 To the extent that any Software Program integrates with software belonging to a software provider other than AGDATA (referred to as “External Software”), the Licensed User hereby agrees to abide by all Terms & Conditions that may be applicable to the External Software. By way of example, the Software Program called “Phoenix Mapping” integrates with Google Maps software and accordingly, Licensed Users are required to abide by the Terms of Use imposed on users of Google Maps.
5. Bank Feeds
5.1 By registering for Bank Feeds the Licensed User is giving their bank, other nominated financial institution, or data aggregator (hereinafter referred to collectively as "Bank Feed Providers" and hereinafter referred to individually as “Bank Feed Providers”) permission to provide AGDATA transactional data for the account/s that the Licensed User nominates. The Licensed User may be required to provide the Bank Feed Provider a hardcopy authority or consent form as evidence of their permission.
5.2 The Licensed User may only use Bank Feeds for accounts attached to their business. Bank Feeds are only available for a Licensed User who holds a current Phoenix Live subscription or Phoenix Desktop subscription as specified on the AGDATA website (www.agdata.com.au). The Licensed User’s Bank Feeds will be automatically cancelled when their subscription is cancelled.
5.3 AGDATA may pay the Licensed User’s Bank Feed Provider fees for providing transactional information. The Licensed User’s Bank Feed Provider may stop supplying AGDATA with transactional information without notice to AGDATA or the Licensed User. No form of agency, partnership, joint venture or any other form of relationship exists between the Licensed User’s Bank Feed Provider and AGDATA.
5.4 The Licensed User may cancel a Bank Feed by advising their Bank Feed Provider in writing.
5.5 AGDATA may charge fees in addition to the Licensed User’s Phoenix Live subscription or Phoenix Desktop subscription for supplying for bank feeds. The fees and charges to supply a Bank Feed to the Licensed User are specified at the time of applying for the Bank Feed from within the Phoenix program. AGDATA, in its absolute discretion, may alter the fees charged for Bank Feeds with 14 days written notice.
6. Installation, Re-Activation & Additional Activations
6.1 An Internet connection is required for all activation processes of the Software.
6.2 AGDATA Software may automatically deactivate if a Software Program is transferred from an Authorised Computer to a replacement computer or if significant changes are made to the Authorised Computer on which the Software Program was initially activated. If that occurs, please contact AGDATA for a new activation code.
6.3 The Licensed User may elect to deactivate the Software or a Software Program on the Authorised Computer and subsequently activate the Software or a Software Program (as the case may be) on another computer free of charge, provided both the original Authorised Computer and the secondary computer are connected to the internet and the Licensed User carries out that process in accordance with AGDATA’s requirements specified in the published Help System within the Software. Upon deactivation of the Software or a Software Program on the Authorised Computer and subsequent activation of same on the secondary computer, the secondary computer will become (and take the place of) the Authorised Computer, for the purpose of this License Agreement.
6.4 In the event a Licensed User wishes to run Software or a Software Program on an additional computer (that is, have more than one Authorised Computer), an additional subscription for the secondary activation may be purchased and will be offered by AGDATA at a discounted rate.
7. Software Upgrades & Technical Support
7.1 All Software produced by AGDATA is modular and therefore, from time to time, AGDATA will provide updates for those modules. To upgrade a Software Program, the Licensed User must first be licensed to use the Software Program that is eligible for upgrade. Upon the upgrade being installed, this agreement takes the place of the agreement for the Software Program that you upgraded from. After you upgrade a Software Program, you may no longer use the Software Program that you upgraded from.
7.2 Upgrades may require the Licensed User to undergo additional training. If additional training is required, such training will be provided by AGDATA for a fee to be determined by AGDATA, to be calculated in accordance with its prevailing rates at that time.
7.3 A Licensed User may continue to use a version of any Software Program without upgrading it. The license to use non-upgraded version of any Software Program shall automatically lapse when AGDATA, in its sole discretion, elects to cease providing technical support for the non-upgraded version of the Software Program or the Licensed User’s subscription has lapsed. If the Licensed User has informed AGDATA of its current contact details, AGDATA will provide the Licensed User with 30 days’ notice of its intention to cease providing Technical Support and/or other services in relation to the subject Software Program.
7.4 AGDATA provides technical support to Licensed Users in accordance with its Technical Support Policy, a copy of which can be obtained from the Support page of the AGDATA website (www.agdata.com.au).
8. Suspension or Termination of License
8.1 AGDATA hereby expressly reserves the right to suspend or terminate the Licensed User’s license for the Software or any Software Program if, in AGDATA’s reasonable opinion:
•The Licensed User is in substantial breach of these Terms & Conditions;
•The Licensed User remains financially indebted to AGDATA for a period of 14 days after AGDATA has submitted a written demand for payment;
•It is permitted to do so pursuant to these Terms & Conditions.
9. Applicable Law
9.1 This agreement is governed by the law of Queensland and the courts of Queensland have jurisdiction in respect of any disputes or matters arising between the parties in respect of this agreement. It is expressly agreed that this agreement was entered into at the principal office of AGDATA, being Russell Street, Toowoomba, Queensland.
10. Limitation of Warranty
10.1 All AGDATA Software comes with guarantees that cannot be excluded under the Competition and Consumer Act 2010 (“the CCA”). The Licensed User is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage, and is entitled to have the Software repaired or replaced if the Software is not of an acceptable quality and the failure does not amount to a major failure. The Licensed User must notify AGDATA of any alleged defect in the Software as soon as reasonably possible after any such defect becomes evidence and allow AGDATA to inspect the Software. AGDATA excludes any and all conditions, warranties and terms implied by statute, general law, international convention or custom, except any implied condition or warrant the exclusion of which would contravene the provisions of any statute or cause any part of this agreement to be void. Under various State, Territory and Commonwealth law (including the CCA), certain statutory guarantees and warranties are implied and may not be excluded or avoided by AGDATA (“non-excluded warranties”). Nothing in this agreement purports to modify or exclude any non-excluded warranties.
10.2 AGDATA may make available access to third party data servers for use within one or more Software Programs, however AGDATA does not warrant or guarantee the continuity of such service. AGDATA expressly reserves the right to withdraw access at any time without notice.
10.3 Except as expressly set out in this agreement and the non-excluded warranties, AGDATA gives no warranties and makes no other representations (including but not limited to the quality or suitability of the Software or a Software Program), and AGDATA’s liability in respect of any warranties is limited to the fullest extent permitted by law.
10.4 Unless otherwise specified by AGDATA or required as a matter of law, all warranties given by AGDATA are limited to the replacement or repair of the Software and excludes cartage charges to or from AGDATA’s premises. Unless required by law as part of a non-excluded warranty, AGDATA shall not be liable for labour, travelling and any other incurred expenses in the removal and/or re-installation of any data, Software or Software Program. AGDATA accepts no liability for faults arising from the improper use or faulty maintenance of the Software or a Software Program, incorrect installation, improper operation beyond recommenced specifications or contingent or consequential loss or damage in any situation whatsoever.
10.5 If the Licensed User is not a “Consumer” within the meaning of the CCA, AGDATA’s liability for any defect in or damage to the Software or a Software Program is:
•Limited to the value of any express warranty provided to the Licensed User by AGDATA in AGDATA’s sole discretion;
•Limited to any warranty to which AGDATA is entitled, if AGDATA did not manufacture the Software or the Software Program;
•Otherwise negated absolutely.
10.6 If AGDATA is liable for a breach of any condition or warranty implied by the CCA in respect of the Software or a Software Program, AGDATA’s liability is limited to, at the election of AGDATA:
•In respect of any service provided by AGDATA, either the resupply of the service or the payment of the cost of having the service resupplied; and
•In respect of the supply of any goods (including but not limited to the supply of Software or any Software Program), either the replacement or repair of the goods in respect of which the breach occurred;
•Or the refund of any money the Licensed User has paid for the goods or services.
10.7 Subject to the above, AGDATA’s liability for any loss or damage suffered by the Licensed User in connection with the supply of any goods and/or services by AGDATA (including liability for any negligent act or omission), shall be limited to the price paid for the goods or service and AGDATA shall under no circumstance be liable for consequential or indirect damages arising out of or in connection with this agreement (including, without limitation, loss of profits or damage suffered as a result of claims by any third person).
10.8 AGDATA shall not be liable for any defect, damage or liability which may be caused or partly caused by or arise as a result of:
•the Licensed User failing to properly use, operate and/or maintain any goods (including Software and/or a Software Program);
•the Licensed User using the Software and/or a Software Program for any purpose other than that for which they were designed and licensed, or making any unauthorised modification to same;
•the Licensed User continuing the use of any Software or Software Program after any defect became apparent or should have become apparent to a reasonably prudent person or user;
•the Licensed User, its employees or contractors failing to strictly follow any instructions, guidelines or manuals provided by AGDATA or any work place health and safety legislation or guidelines, or to provide property procedures or training for its employees and contractors;
•any accident or act of God.
11. Privacy Act
11.1 The Licensed User agrees that personal credit information provided may be used and retained by AGDATA for the following purposes (and for other purposes as agreed between the Licensed User and AGDATA from time to time, or as required by law):
•the provision of goods or services to the Licensed User;
•the marketing of goods or services by AGDATA, its agents or distributors; and/or
•analysing, verifying and/or checking the Licensed User’s credit, payment and/or
•status in relation to the provision of goods and/or services; and /or
•processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Licensed User; and/or
•the operation of the Licensed User’s account and/or the collection of amounts outstanding in the Licensed User’s account in relation to any goods and/or services provided by AGDATA.
12. Severability
12.1 If any provision of this agreement is held to be invalid, unenforceable or illegal, the offending provision will be severed from this agreement and the remaining parts of this agreement shall remain in full force and effect.
