Software License Agreement and Terms
NETO SOFTWARE LICENSE AGREEMENT & TERMS
Neto has developed and licenses to users its software program marketed under the name The Neto E-commerce Suite (the "Software").
The Licensee desires to utilise a copy of the Software.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, Neto and The Licensee agree as follows:
1. Neto hereby grants to The Licensee a non-exclusive, limited license to use the Software as set forth in this Agreement.
2. The Licensee shall not modify, copy, duplicate, produce, reproduce, license or sublicense the Software or a competing version of the software, or transfer or convey the Software or any right in the Software to anyone else without the prior written consent of Neto. Unless purchased outright, The Licensee shall use the managed hosting service outlined in this Agreement and provided by Neto to host the software.
3. In consideration for the grant of the license and the use of the Software, The Licensee agrees to pay Neto a pre-determined setup fee as well as an ongoing license / hosting fee as outlined in Schedule 1, attached to this Agreement.
Neto reserves the right to vary its ongoing license / hosting fees in line with the Australian Consumer Price Index (CPI) and supplier cost increases and will provide 30 days notice of any price alteration.
4. Neto’s warranties set forth in this Agreement are exclusive and are in lieu of all other warranties, express or implied, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose.
5. Warranty of Functionality.
a. For the period that the Licensee hosts the Software with Neto (the "Warranty Period"), Neto warrants that the Software shall perform in all material respects according to Neto's specifications, which will not be to any lower standard than as set out in the specifications in Schedule 2 and 3, attached to this Agreement, concerning the Software when used with the appropriate computer equipment. In the event of any breach or alleged breach of this warranty, The Licensee shall promptly notify Neto. The Licensee’s sole remedy shall be that Neto shall promptly correct the Software so that it operates according to the warranty. This warranty shall not apply to the Software if modified by anyone or if used improperly or in an operating environment not approved by Neto. Any custom work performed by third parties will not be covered by this warranty.
b. Currently Neto web sites are designed to be compatible with the most popular web browsers including Internet Explorer, Mozilla Firefox, Netscape & Safari. Administration control panels and Warehouse Management Systems are designed to be compatible with Internet Explorer.
c. In the event that Neto becomes insolvent, unable to trade or can no longer supply the specified services as set forth in this Agreement, then Neto will give The Licensee access to the source code as well as supporting documentation. This does not grant The Licensee the right to copy, duplicate, reproduce, license or sublicense the Software, or transfer or convey the Software or any right in the Software to anyone else. Instead this allows The Licensee to continue utilising the software for its intended purpose.
6. Software Maintenance.
a. During the Warranty Period, Neto shall provide to The Licensee any global updates, corrected or enhanced versions of the Software as created by Neto. Such enhancement shall include all modifications to the Software which increase the speed, efficiency or ease of use of the Software.
7. Payments & Refunds.
A 50% deposit for all software & services must be received from the Customer, before any job commences. The remaining 50% will be due on date that the job is completed and /or the software is delivered. Payment of ongoing hosting / license and support fees by The Licensee to Neto pursuant to this Agreement shall be paid within 7 days following invoice from Neto. In the event any overdue amount owed by Licensee is not paid following 7 days written notice from Neto, then in addition to any other amount due, Neto may impose and The Licensee shall pay a late payment charge at the rate of ten percent (10%) per month on any overdue amount.
All payments are to be made in Australian currency. Neto will pass on the cost of bank processing fees associated for any dishonoured cheque payments.
Software, service and hosting fees are non-refundable. Neto offers a 14 day no-obligation free trial of its software to prospective customers. During this trial period no fees are charged, thus allowing prospective customers the opportunity to test the system in a working environment.
8. The Hosting Service.
The Licensee shall utilise the Managed Hosting Service provided by Neto to host their licensed copy of the Neto Ecommerce Suite. Neto has offered to provide the Managed Hosting Service to The Licensee in accordance with the terms and conditions set forth in this Agreement.
a. User Conduct.
The Licensee agrees to abide by all applicable local, state, national and international laws and regulations regarding The Licensee’s use of the Neto Managed Hosting Service including but not limited to the prevention of hosting of offensive, racist or discriminatory material on The Licensee web site.
b. E-Mail Abuses.
You may not distribute, publish, send or incite unsolicited mass e-mailings*, promotions, advertising, or solicitations (such as "spam"), including, without limitation, commercial advertising, informational announcements, and mail bombing.The Licensee may not use Neto’s mail server or a third party mail server to relay mail without the express permission of the account holder or the third party site. Posting the same or similar message to one or more newsgroups (including, but not limited to, the use of chain letters, excessive cross-postings or multiple-postings) is explicitly prohibited.
*It is recommended that for bulk e-mail marketing a professional third party provider such as Mail Chimp (www.mailchimp.com) is used to prevent the very real chance of having a website black listed for spamming.
c. Backup of Website Content and Database.
A full backup of the website files are made weekly and database backups are made daily. Back-ups are made for web site restoration purposes only. The Licensee is responsible for keeping a copy of their most current web site files as backup on their own offline computer system. If any loss of data occurs due to Licensee error Neto will use reasonable efforts to recover the data from the most recent backup archive for a one hundred and fifty dollars ($150.00) dollar fee.
d. Bandwidth And Storage Space.
If The Licensee uses any bandwidth or storage space in excess of the chosen license / hosting plan outlined in Schedule 1, attached to this Agreement , the licensee may choose to:
i. Upgrade to the appropriate license / hosting plan as per Schedule 1, attached to this Agreement, by paying the difference between the two plans prior to the next billing period.
ii. Purchase additional bandwidth or storage space on a per Mega Byte basis as per Schedule 1, attached to this Agreement.
9. Any modifications of the software including design and programming by Neto on behalf of The Licensee are performed under contract in the name of The Licensee.
10. Any confidential information including but not limited to inventory information, images and customer information entered into the software by The Licensee or its clients remains the intellectual property of The Licensee. On termination of this Agreement Neto will remove The Licensees website and its content from its servers.
11. If The Licensee chooses to store credit card information or other sensitive information on their website, they do so at their own risk. The Licensee is responsible for deleting sensitive information such as credit card information. Neto does provide secure payment processing options as well as other security features standard with all software to minimise risk.
12. Neto does not guarantee any search engine ranking. The popularity of a website in any major search engine is determined by a number of factors outside of the control of Neto. Neto will however provide The Licensee with limited advice on how to improve their search ranking. Additional search engine optimisation services are available at an additional cost.
13. Neto shall not be responsible for, and shall not pay, any amount of incidental, consequential or other indirect damages, whether based on lost revenue or otherwise, regardless of whether Neto was advised of the possibility of such losses in advance, except to the extent that the amount of damages does not exceed the amount of licence fees paid by the Licensee during the course of this Agreement, regardless of whether The Licensee's claim is based on contract, tort, strict liability, product liability or otherwise.
14. Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate party by personal delivery or by certified mail, postage prepaid, or recognised overnight delivery services.
Postal Address:
Neto
Capalaba
QLD
4157
15. Neither this Agreement nor any interest in this Agreement may be assigned by The Licensee without the prior express written approval of Neto. Should the licensee undergo a change of control it is understood that the terms of this Agreement will continue to be honoured by Neto.
16. Should Neto or the part of Neto that is responsible for administering this license Agreement undergo a change of control, it is understood that the terms of this agreement will be honoured by the new controlling entity and the Licensor as outgoing controlling entity must ensure that the new controlling entity enters an agreement with the Licensee before the change of control occurs under which the new controlling entity agrees to be bound by the terms of this agreement.
17. Neto may give The Licensee a written notice terminating this Agreement, with immediate effect:
a. if The Licensee breach one or more of their obligations under this Agreement and that breach is not remedied within 14 days of Neto giving The Licensee notice stipulating the breach and requiring it to be remedied
b. if The Licensee (being a company), become, threaten or resolve to become or are in jeopardy of becoming subject to any form of insolvency administration where any invoices due are not paid on-time and or in-full.
18. If this Agreement is terminated by Neto in addition to terminating this Agreement:
a. Neto will retain any fees paid
b. Neto will remove The Licensees website and its content from their servers
c. Neto will be regarded as discharged from any further obligations under this Agreement
d. Neto may pursue any additional or alternative remedies provided by law;
e. The Licensee must pay Neto the fees and charges that are, on the date of termination, due and payable under this Agreement
f. The Licensee must indemnify Neto in relation to unavoidable and unrecoverable costs directly arising from the termination
19. The Licensee may terminate this Agreement and close their account at any time by notifying Neto of the desire to do so. When The Licensee terminates this Agreement:
a. The Licensee must pay Neto the fees and charges that are, on the date of termination, due and payable under this Agreement.
20. In the event that this Agreement is terminated by either party, The Licensee will be given adequate time & opportunity to download all database content before it is removed by Neto from its servers.
21. It is understood and agreed that each of the parties to this Agreement is an independent party. The Licensee is not an agent or representative of Neto and must not represent itself, directly or by implication, as an agent of Neto or in any manner assume or create any obligation on Neto’s behalf or in Neto’s name.
22. This Agreement terminates and supersedes all prior understandings or Agreements on the subject matter hereof. This Agreement may be modified only by a further writing that is duly executed by both parties.
23. If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
24. Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.
25. This Agreement shall be construed and enforced in accordance with the laws of the state of
