Mountaintop Consulting
Successful Project
Management
Project Management Methodology
License Agreement
Background
(a) You wish to use one or
more of MOUNTAINTOP CONSULTING PTY LTD's templates and related
materials.
(b) MOUNTAINTOP CONSULTING
PTY LTD is willing to grant a licence to you in accordance with the terms
and conditions of this agreement.
Operative Terms
Interpretation and
Definitions
1.1 In this agreement, unless
the context requires otherwise, the following terms shall have the
following meanings:
1.1.1 'Derived Work' has the
meaning given to it in clause 2.1.1;
1.1.2 'Fees' means the fees
payable by you to MOUNTAINTOP CONSULTING PTY LTD for the Licensed
Products, as set out in the Schedule;
1.1.3 'Instructions' the user
instructions for each Template;
1.1.4 'Licensed Products' means
each Template and its related Instructions and their Updates;
1.1.5 'New Content' means that
part of a Derived Work that does not form part of the Original Content;
1.1.6 'Nominated User' means the
individual identified as the authorised User;
1.1.7 'Original Content' means the
content of the Template in
the form downloaded from
MOUNTAINTOP CONSULTING PTY LTD's web site and which forms part of a
Derived Work;
1.1.8 'Reviewer' has the meaning
given to it in clause 4.2.2(b);
1.1.9 'Schedule' means the
schedule to these terms and conditions, which sets out the Templates that
you want to obtain the right to use and the applicable Fees for such use;
1.1.10 'Template' means any
template and Update to that template that is set out in the Schedule.
1.1.11 'Updates' mean updates to or
upgrades of the Templates and/or Instructions respectively;
1.1.12 'User' means an individual
who may alter, modify, or otherwise use a Template and who may read the
relevant Instructions; and
1.1.13 'you' means you personally,
if you are an individual, or the Nominated User, if you are a company or
other non personal entity.
Grant
2.1 Provided that you have paid
the applicable Fees, MOUNTAINTOP CONSULTING PTY LTD grants you and you
accept a non-transferable and non-exclusive right and licence to:
2.1.1 use one copy of each
Licensed Product (including any Updates for which you have paid any
relevant additional Fee) as an aid to creating specific documents based on
theTemplate by copying the Template and modifying that copy ('Derived
Work');
2.1.2 Make and retain for backup
and archival purposes, one copy of each Template provided that the
original and each copy are kept in your possession and control and that
your installation and use of the same do not exceed that allowed by this
agreement.
Licensee's
Obligations
3.1 You shall supervise and
control the use of the Licensed Products in accordance with the terms of
this agreement.
3.2 You shall not:
3.2.1 Alter or modify the Licensed
Products or any part of them, or permit others to do so;
3.2.2 sell, sub-license, lease,
hire out, share use of or rent the Licensed Products or transmit the
Licensed Products to any third party; or
3.2.3 use the Licensed Products to
provide to any other party any form of consulting, service-bureau,
time-sharing services, or services of any other kind unless you have paid
MOUNTAINTOP CONSULTING PTY LTD the respective fee, if any, for such use.
Rights in a Derived
Work
4.1 This agreement restricts
what you may do with Licensed Products, the Original Content and a Derived
Work as a whole, but does not restrict what you may do with the New
Content alone.
4.2 In respect of a Derived
Work:
4.2.1 you shall delete MOUNTAINTOP
CONSULTING PTY LTD's branding and copyright notice from the Original
Content;
4.2.2 you
may:
(a) modify the content to
include some or all of the Original Content in addition to New Content for
business, personal, educational or governmental purposes;
and
(b) distribute the Derived
Work to any person who may review and suggest modifications to but not
modify or otherwise use the Original Content ('Reviewer');
4.2.3 you shall
not:
(a) sell, sub-license,
lease, hire out, share use of or rent the Derived Works;
or
(b) use the Derived Works
to provide to any other party any form of consulting, service-bureau,
time-sharing services, or services of any other kind unless you have paid
MOUNTAINTOP CONSULTING PTY LTD the respective fee, if any, for such use;
and
4.2.4 you shall notify a Reviewer
that they must obtain a licence to use the Licensed Products from
MOUNTAINTOP CONSULTING PTY LTD before they may use the relevant Template
or modify any Original Content retained in a Derived Work based on that
template.
Download
5.1 On payment of the Fees, you
may download the relevant Licensed Products from MOUNTAINTOP CONSULTING
PTY LTD's website at www.mountaintop.net.au. You shall maintain accurate
and complete records of the number and location of the copies of the
Licensed Products and supply such records to MOUNTAINTOP CONSULTING PTY
LTD immediately upon request.
Maintenance and Additional
Services
MOUNTAINTOP CONSULTING PTY
LTD6.1 This agreement
does not require you to use the current release level of the Licensed
Products. We will not take responsibility for your use of out of date
Licensed Products.
6.2 may, at its option,
decide to make Updates available. If so, any additional terms and
conditions for obtaining and using them will be notified on MOUNTAINTOP
CONSULTING PTY LTD's website.
Ownership
7.1 The Licensed Products,
Original Content and all copies of them consist of proprietary information
developed by MOUNTAINTOP
CONSULTING PTY LTD which are and shall remain the exclusive property of
Mountaintop Consulting Pty Ltd and you shall have no right, title or
interest in them, except as expressly set out in this agreement.
7.2 To assist MOUNTAINTOP
CONSULTING PTY LTD in the protection of its proprietary rights, you shall:
7.2.1 do all such acts and things
as MOUNTAINTOP CONSULTING PTY LTD may reasonably require for the purpose
of preserving or perfecting such rights; and
7.2.2 permit representatives of
MOUNTAINTOP CONSULTING PTY LTD to enter upon (at all reasonable times
during normal working hours) any premises in which the Licensed
Products and/or Original
Content are or are reasonably believed by Mountaintop Consulting Pty Ltd,
to be kept, stored or used and inspect your records of use of the Licensed
Products and Original Content. Mountaintop Consulting Pty Ltd will use
reasonable endeavours to minimise disruption to your business activities
during such inspection.
7.3 Subject to clause 4.2.1, you
shall not alter or remove any detail of ownership, copyright, trademark or
other proprietary right connected with the Licensed Products and shall
reproduce them exactly on any copies.
Warranty
MOUNTAINTOP CONSULTING PTY
LTD
8.1 You acknowledge that you
have exercised your independent judgment in acquiring the Licensed
Products and have not relied on any representation made by MOUNTAINTO
CONSULTING PTY LTD which has not been stated expressly in this agreement
or upon any descriptions or illustrations or specifications contained on
any web site or in any document including catalogues or publicity material
produced by Mountaintop Consulting Pty Lt.
8.2 do not warrant that
the Licensed Products are error free, free from viruses, or suitable for
your purposes. Any statement, condition or warranty, express or implied,
statutory or otherwise, as to the quality, merchantability, or suitability
or fitness for any particular purpose of the Licensed Products is excluded
to the fullest extent permitted by law.
8.3 In the event any statute
implies terms into this agreement which cannot be lawfully excluded, such
terms will apply to this agreement, save that MOUNTAINTOP CONSULTING PTY
LTD's liability for breach of any such implied term will be limited, at
MOuntaintop Consulting Pty Ltd's option, to any one or more of the
following:
8.3.1 replacing the goods to which the
breach relates or the supply of equivalent goods;
8.3.2 repairing such goods;
8.3.3 paying the cost of replacing
the goods or of acquiring equivalent goods;
8.3.4 paying the cost of having
the goods repaired; or
8.3.5 refunding the relevant Fee.
Liability
In no event shall
MOUNTAINTOP CONSULTING PTY LTD or its suppliers be liable for any loss or
damage whatsoever (including, without limitation, special, indirect or
consequential damages, damages for loss of profits, interruption, loss of
information, or other pecuniary loss) arising out of use or inability to
use the Licensed Products, even if advised of the possibility of such loss
or damage. Because some jurisdictions do not allow an exclusion or
limitation of liability for consequential or incidental damages, the above
limitation may not apply to you.
Payment
10.1 A separate licence and Fee
are required for each User of the Licensed Products and Original Content.
You shall promptly pay any increase in the Fees due to an increase in the
number of Users. That increase shall be calculated as set out on
MOUNTAINTOP CONSULTING PTY LTD's website. If Mountaintop Consulting
discovers that you have under paid the Fees, Mountaintop Consulting may, in addition to its other
rights and remedies, charge you for its reasonable costs and expenses
incurred in conducting any audit and recovering moneys.
10.2 The Fees are expressed in
Australian dollars and are exclusive of taxes and duties.
Termination
MOUNTAINTOP CONSULTING PTY
LTD11.1 may,
without prejudice to its other rights and remedies, terminate this
agreement forthwith by written notice to you without incurring liability
for such termination if you commit a breach of any material obligation of
this agreement which can not be remedied or commit such a breach which can
be remedied and fail to remedy it within thirty calendar days of receiving
a written notice requiring it to be remedied.
Effect of
Termination
12.1 Upon the expiry or
termination (for whatever reason) of this agreement you shall promptly
delete al copies of all Licensed Products from all computers and return to
MOUNTAINTOP CONSULTING PTY LTD all other copies of the Licensed Products.
Confidentiality
MOUNTAINTOP CONSULTING PTY
LTD has imparted and may from time to time impart to you certain
confidential information relating to the Licensed Products. You shall use
such confidential information solely for the purposes of this agreement
and not disclose, whether directly or indirectly, to any third party, such
information other than is required to carry out the purposes of this
agreement. In the event of such disclosure, you will obtain from such
third parties duly binding agreements to maintain in confidence the
information to be disclosed to the same extent at least as you are so
bound.
Force
Majeure
Neither party shall be
liable to the other if its performance of its obligations under this
agreement (other than on obligation to pay money) is prevented or hindered
due to any circumstances outside its control.
Entire
Agreement
The parties have read and
understand this agreement and agree that it constitutes the complete and
exclusive statement of the agreement between them with respect to the
subject matter hereof and supersedes all proposals, representations,
understandings and prior agreements, whether oral or written, and all
other communications between them relating thereto. The parties
irrevocably and unconditionally waive the right to claim damages and/or
rescind this agreement as a result of misrepresentation unless such
misrepresentation was made fraudulently.
Severability
In the event that any
provision of this agreement is declared by any judicial or other competent
authority to be void, voidable, illegal or otherwise unenforceable or
indications of the same are received by either of the parties from any
relevant competent authority, the parties shall amend that provision in
such reasonable manner as achieves the intention of the parties without
illegality, or such provision may be severed from this agreement and the
remaining provisions of this agreement shall remain in full force and
effect.
Waiver
No delay or failure of
either party in enforcing against the other party any term or condition of
this agreement and no partial exercise by either party of any right
hereunder shall be deemed to be a waiver of any right of that party under
this agreement.
Variation
No variation or amendment
to this agreement shall be effective unless in writing signed by
authorised representatives of the parties.
Assignment
The licence granted under
this agreement is personal to you and you shall not assign, part with or
sublet any interest in it or grant any right under it to any third party.
MOUNTAINTOP CONSULTING PTY LTD may, on notice to you, assign its rights
and obligations under this agreement to any person. Subject to the other
provisions of this agreement, this agreement is binding upon and enures
for the benefit of the parties' personal representatives, assigns and
successors in title. You give us permission to use your company name on
our licensed customer list.
Notices
Any notice to be served on
either of the parties by the other shall be sent by pre-paid recorded
delivery or registered post or by fax or by electronic mail and shall be
deemed to have been received by the addressee within 72 hours of posting
or 24 hours if sent by facsimile transmission or by electronic mail to the
correct facsimile number (with correct answerback) or correct electronic
mail number of the addressee.
Law and
Disputes
This agreement is governed
by and is to be interpreted in accordance with Australian law. MOUNTAINTOP
CONSULTING PTY LTD and you irrevocably submit to the non-exclusive
jurisdiction of the courts of Western
Australia.