ACER Licence Agreement

This Contract is made between The Australian Council for Educational Research Limited (ABN 19 004 398 145) of 19 Prospect Hill Road, Camberwell, Victoria, Australia (‘ACER’) and (‘You’) the licencee (‘Parties’).

By retaining this licence, copying or installing any of the Software or carrying out any of the authorised activities You agree to be bound by the terms of this Contract. If You do not agree to the terms of this Contract, You may not install or use the Software.

1.     DEFINITIONS

1.1 ‘Force Majeure Event’ means a circumstance beyond the reasonable control of the ACER which results in ACER being unable to observe or perform on time an obligation under this Contract. Such circumstances shall include:

a) Acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster;

b) Acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; and

c) Strikes.

1.2 ‘Governmental’ or ‘Regulatory Agency’ means any government or any governmental, semi-governmental or judicial entity, authority or agency having jurisdiction over You.

1.3 ‘Licence Fee’ means the fee specified in clause 4 of this Contract.

1.4 ‘Software’ means the ACER ConQuest Version 4 computer program (including any updated, enhanced or new version) and related documentation and materials.

1.5 ‘Tax’ means a tax, levy, impost, deduction, charge, rate, duty, compulsory loan or withholding which is levied or imposed by a Governmental or Regulatory Agency, together with any interest, penalty, charge, fee or other amount imposed or made on or in respect of any of the foregoing.

1.6 ‘You’ and ‘Your’ means an individual or other legal person that licences the Software.

2.     PRELIMINARY

The Software is not sold, only licenced to You for use only in accordance with the terms of this Contract, and ACER reserves all rights not expressly granted to You. You own any discs on which the Software is originally or subsequently recorded or fixed, but ACER retains ownership of all copies of the Software itself.

3.     LICENCE OF SOFTWARE

Subject to the terms and conditions of this Contract and in consideration of payment of the Licence Fee, and specifically the restrictions in clause 6 of this Contract, ACER grants to You a non-exclusive, perpetual (in respect of the Student and Standard Licence below only), non-transferable limited licence (not including a right to sublicence) in respect of the following licences You opted for at the time of purchase:

3.1 Trial licence

(a) In downloading the Software on a trial licence, You have a right to evaluate the Software in order to determine whether to purchase a student/standard/extended licence;

(b) The Software is to be installed on hardware for single seat use in accordance with this Contract;

(c) Under no circumstances should the Software be used for any purposes other than evaluation of the Software;

(d) ACER can at any time terminate the trial licence. In such event, You must destroy all copies of the Software and provide evidence to the satisfaction of ACER that You have done so if requested by ACER;

(e) The trial licence has a time limitation of 30 days, after which it will automatically expire and if you wish to continue to use the Software a student/standard/extended licence must be purchased; and

(f) The Software is protected by copyright law and international treaties. You are not authorised to make any copies of the Software.

3.2 Student and Standard Licence

(a) The Software is to be used by You as end user and not for marketing or redistribution, either alone or as a component of any other product;

(b) The Software is operable on sample sizes up to 3000 participants;

(c) The Software is to be installed on hardware for single seat use in accordance with this Contract;

(d) You must have a separate licence for each computer on which the software is installed; and

(e) The Software is protected by copyright law and international treaties. You are not authorised to make any copies of the Software.

3.3 Extended Licence

(a) The Software is to be used by You as end user (that is, not for use for marketing or redistribution, either alone or as a component of any other product);

(b) The Software is operable on sample sizes up to 1 million participants;

(c) The Software is to be installed on hardware for single seat use in accordance with this Contract;

(d) You must have a separate licence for each computer on which the software is installed;

(e) The extended licence has a time limitation of 365 days, after which it automatically converts to a student licence under clause 3.2; and

(f) The Software is protected by copyright law and international treaties. You are not authorised to make any copies of the Software.

You acknowledge that the documentation included with the Software contains sufficient information for the adequate use of the Software, except to the extent that ACER has notified You of any omission or deficiency or of any variation which it considers necessary for the proper use of the Software. You shall not copy or reproduce that documentation except to the extent otherwise authorised by this Contract.

3.4 Instructor’s licence

(a) The Software is to be used by You (a University created under statute) as end user and not for marketing or redistribution, either alone or as a component of any other product;

(b) The Software is operable on sample sizes of up to 3000 participants;

(c) The Software is to installed as a multi seat licences as follows, on the hardware of:

i. one of Your instructors for the purpose of instruction of Your instructor’s students in a single educational course;

ii. on the hardware of the instructor’s students for the length of the relevant course.

(d) You must nominate the relevant course and instructor at the time of purchase;

(e) You must have a separate licence for each course Your instructor is teaching; and

(f) The Instructor’s Licence has a time limitation of 365 days or the length of the relevant course in which the instructor’s students are being instructed (whichever is the earlier) after which the Instructor’s Licence automatically expires.

4. LICENCE FEE

You shall pay the Licence Fee at the rate and in the manner specified on the ACER ConQuest website.

5. TAX

5.1 All words in this clause 5.1 which are also defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have a corresponding meaning. Where ACER is taken to have made a supply to You, You must, in addition to the consideration payable for the supply and when paying the consideration for the supply also pay to ACER an amount equal to the GST payable in respect of that supply. ACER must give You a tax invoice in the form required by the GST Act at the same time it receives payment of the consideration for that supply.

5.2 Other taxes

The Licence Fee payable under this Contract excludes any Taxes on ACER or as a consequence of entering into this Contract with You. You must immediately pay to ACER on demand any Tax payable by ACER as a consequence of it entering into this Contract.

5.3 Withholding and similar Taxes

Whenever You are required by law to make a deduction or withholding in respect of Tax from any payment to be made to ACER under this Contract, You will:

a) make that deduction or withholding from the payment;

b) promptly pay an amount equal to the amount deducted or withheld as required by law and by the date that Tax is due to be paid to the appropriate Governmental or Regulatory Agency;

c) if requested by ACER, within ten days of that request, deliver to ACER official relevant receipts, if any, received by You or other documentation of the You evidencing payment of that amount; and

d) pay ACER such additional amounts as necessary to ensure ACER receives when due a net amount (after deduction or withholding of any Taxes in respect of such additional amounts) equal to the full amount which ACER would have received if no deduction or withholding had been made.

6. RESTRICTIONS

6.1 You may not, nor allow others to, market, distribute or transfer the Software or any copy thereof to others or electronically transfer the Software from one computer to another over a network, either on its own or with or as part of any other product or equipment, without an express distribution licence from ACER. You may not, nor allow others to copy, reproduce, modify, adapt, translate, rent, lease, loan, sell, distribute, network or create derivative works based on the Software or any part of it. In addition to any other remedies available to ACER under this Contract or otherwise, any breach of this clause 6.1 will entitle ACER to any available equitable remedy against You.

6.2 The structure, organisation and source code of the Software are the valuable trade secrets and confidential information of ACER. You may not, nor allow others to decompile, reverse engineer, disassemble or create derivative works based on the Software. Except as expressly stated herein, this Contract does not grant You any intellectual property rights in the Software. In addition to any other remedies available to ACER under this Contract or otherwise, any breach of this clause 6.2 will entitle ACER to any available equitable remedy against You.

6.3 You may not create or permit to exist a security interest over the Software or in any modifications to, or enhancements, updates or new releases of, the Software. For the purposes of the foregoing, “security interest” means a security interest that is subject to the Personal Property Securities Act 2009 (Cth) or any other mortgage, pledge, lien, charge or other arrangement of any kind which in substance secures the payment of money or the performance of an obligation, or that gives a creditor priority over unsecured creditors.

6.4 You may not do any act or suffer any omission in respect of the Software which requires a licence from ACER but which is not expressly authorised by this Contract. In addition to any other remedies available to ACER under this Contract or otherwise, any breach of this clause 6.4 will entitle ACER to any available equitable remedy against You.

6.5 ACER shall not be obliged to support the Software, whether by providing advice, training, error-correction, modifications, updates, new releases or enhancements or otherwise.

6.6 You shall ensure any copy of the Software to this Contract bears notice of ACER’s ownership of copyright and a notice stipulating that the Software contains information confidential to ACER in the following form:

© The Australian Council for Educational Research Ltd (ABN 19 004 398 145) (1998, 2007, 2012) All rights reserved. This Software and accompanying documentation are the confidential information of The Australian Council for Educational Research Ltd (ABN 19 004 398 145).

6.7 If requested by ACER, You shall issue a notice in a form approved by ACER to all employees and other authorised users of the Software under its direction or control, advising such persons of Your obligations under this Contract and also advising of the possible civil and criminal consequences of a breach of this Contract.

6.8 ACER is under no obligation under this Contract to provide updates or new releases of the Software. Any updates or new releases will be made available on ACER’s ConQuest website for an additional fee.

7. TERMINATION

This Contract and licence shall continue until terminated in accordance with the terms of this Contract. It will terminate automatically in writing from ACER without notice if You fail to comply with any provision of it. Upon termination You must destroy the Software and any copies You have made. Upon termination of this licence for any reason:

a) You will have no right to refund of the whole or any part of the licence fees or other amounts paid for this licence or the Software simply because You change your mind about use of the Software.(a major failure of the Software excepted); and

b) You shall continue to be bound by the provisions of Section 6 above.

8. INTELLECTUAL PROPERTY RIGHTS

a) Title, ownership rights, and intellectual property rights in and to the Software and any derived works shall remain solely with ACER.

b) You acknowledge that ACER owns valuable intellectual property rights in the Software.

c) This Contract does not transfer to You any intellectual property rights in the Software and You must not represent that You own those rights.

9. DISCLAIMER OF WARRANTY, LIMITATION OF REMEDIES

9.1 The application of the United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention) to this Contract (by virtue of any law relevant to this Contract) is excluded.

9.2 Nothing in this Contract excludes, restricts or modifies any condition, warranty, right or liability implied in this Contract or protected by law (for example the Australian Consumer Law (under the Competition and Consumer Act 2010 (Cth)) to the extent that such exclusion, restriction or modification would render this Contract or any provision of this Contract void, illegal or unenforceable. Subject to that, any condition, warranty, right or liability which would otherwise be implied in this Contract or protected by law is excluded.

9.3 Pursuant to s 64A of the Australian Consumer Law (under the Competition and Consumer Act 2010 (Cth)): this sub-clause 9.3 applies in respect of any of the goods or services supplied under this Contract which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, provided that this sub-clause will not apply if You establish that reliance on it would not be fair and reasonable; and liability for breach of a guarantee conferred by the Australian Consumer Law (under the Competition and Consumer Act 2010 (Cth)), other than those conferred by ss 51–53 of that law, is limited:

a) in the case of goods, to any one of the following as determined by ACER:

i. the replacement of the goods or the supply of equivalent goods; or

ii. the repair of the goods; or

iii. the payment of the cost of replacing the goods or of acquiring equivalent goods; or

iv. the payment of the cost of having the goods repaired;

b) in the case of services, to any one of the following as determined by ACER:

i. the supplying of the services again; or

ii. the payment of the cost of having the services supplied again.

9.4 You agree that any breach of this Contract’s restrictions would cause ACER irreparable harm for which money damages alone would be inadequate. In addition to damages and any other remedies to which ACER may be entitled, You agree that ACER may seek injunctive relief to prevent the actual, threatened or continued breach of this Contract.

9.5 Notwithstanding this clause or anything else contained in this Contract, neither party’s liability for death or personal injury resulting from its own negligence shall be limited.

9.6 You indemnify, defend and hold harmless ACER in respect of all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal fees on a full indemnity basis), in connection with any of the following:

a) Any breach of this Contract by You;

b) Your negligent acts or omissions; or

c) Your use of the Software, including any third party claims made in connection with, or arising out of, Your use of the Software.

9.7 In respect of any claim between the Parties under or in connection with this Contract, the Parties agree that to the maximum extent permitted by law, the operations of any law apportioning liability and of any laws having a similar effect in the Commonwealth and other States and Territories of Australia are excluded and have no application or effect insofar as any of them would apportion liability to ACER which would not have been so apportioned but for such laws.

10. TERMINATION

Without limiting the generality of any other clause in this Contract, ACER may terminate this Contract immediately if You:

a) Are in breach of any term of this Contract and such breach is not remedied within five days of notification by ACER;

b) For any reason destroy or dispose of or lose custody of the Licensed Software;

c) Become, threaten or resolve to become or are in jeopardy of becoming subject to any form of insolvency administration;

d) Being a partnership, dissolve, threaten or resolve to dissolve or are in jeopardy of dissolving;

e) Being a natural person, die; or

f) Cease or threaten to cease conducting its business in the normal manner.

11. CONSEQUENCES OF TERMINATION

If the Contract is terminated pursuant to clause 10:

a) You must delete or destroy all copies of the Software in whatever format in Your possession, custody or control and provide evidence You have attended to that to the satisfaction of ACER;

b) ACER may charge You a reasonable sum for work performed in respect of which work no sum has been previously charged;

c) ACER shall be regarded as discharged from any further obligations under this Contract; and

d) ACER may pursue any additional or alternative remedies provided by law.

12. FORCE MAJEURE

Neither Party shall be liable for any delay or failure to perform its obligations pursuant to this Contract if such delay is due to Force Majeure Event. If a delay or failure of a Party to perform its obligations is caused or anticipated due to Force Majeure Event, the performance of that Party’s obligations will be suspended. If a delay or failure by a Party to perform its obligations due to Force Majeure Event exceeds thirty days, either Party may immediately terminate the Contract on providing notice in writing to the other Party. If this Contract is terminated pursuant to this clause ACER shall refund moneys previously paid by You pursuant to this Contract for goods or services not provided by ACER to You.

13. ASSIGNMENT AND NOVATION

The benefit of this Contract shall not be assigned or transferred or novated by You without ACER’s written consent. ACER may consent to the assignment or novation of this Contract by the Licensee subject to such conditions as it chooses to impose.

14. WAIVER

No right under this Contract shall be deemed to be waived except by notice in writing signed by each Party. A waiver made by ACER shall not prejudice its rights in respect of any subsequent breach of the Contract You. Any failure by ACER to enforce any clause of this Contract, or any forbearance, delay or indulgence granted by ACER to You, shall not be construed as a waiver of ACER’s rights under this Contract.

15. DISPUTES

Any dispute arising in connection with this Contract which cannot be settled by negotiation between the Parties or their representatives shall be submitted to arbitration in accordance with the Rules for the Conduct of Commercial Arbitrations for the time being of the Institute of Mediators & Arbitrators Australia. During such arbitration, both Parties may be legally represented.

Prior to referring a matter to arbitration pursuant to this clause, the Parties shall:

a) Formally refer the dispute to their respective contract managers for consideration;

b) If the respective contract managers are unable to resolve the dispute after five (5) days (or such other period as is agreed between the Parties) from the date of referral, refer the dispute to the respective chief executive officers of each Party; and

c) In good faith explore the prospect of mediation.

Nothing in this clause shall prevent a Party from seeking urgent equitable relief before an appropriate court.

16. WHOLE OF AGREEMENT

This Contract constitutes the entire agreement between the Parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.

17. ACER’S RIGHTS

Any express statement of a right of ACER under this Contract is without prejudice to any other right of ACER expressly stated in this Contract or existing at law.

18. SURVIVAL OF CONTRACT

Subject to any provision to the contrary, this Contract shall inure to the benefit of and be binding upon the Parties and their successors, trustees, permitted assigns or receivers but shall not inure to the benefit of any other persons.

The covenants, conditions and provisions of this Contract which are capable of having effect after the expiration of the Contract shall remain in full force and effect following the expiration of the Contract.

19. SEVERABILITY

If any provision of this Contract is held invalid, unenforceable or illegal for any reason, the Contract shall remain otherwise in full force apart from such provisions which shall at the election of ACER, be read down to the extent necessary to remove such invalidity, unenforceability or illegality or be deemed deleted.

20. GOVERNING LAW

The law applicable to this Contract is the law in force in the State of Victoria, Australia. You submit to the exclusive jurisdiction of the Courts of the State of Victoria, the Federal Court of Australia and Courts with jurisdiction to hear appeals from those Courts. You waive any argument that the forum of the Courts of the State of Victoria is an inconvenient forum.