Tectalic Grant of License and Terms of Use

This Grant of License and Terms of Use defines who you are entering into a contract with, the obligations of each party and the nature of the license granted to you. By using the Subscription Service, you accept and agree to the terms of this Agreement.

1. Definitions

In this Grant of License and Terms of Use the following definitions apply.

"Agreement" means this agreement.

"Tectalic", "we", "us" or “our" is Holipac Pty Ltd trading as Tectalic of 9/316 Onslow Road, Shenton Park in the State of Western Australia, Australia.

"Customer", "you" or "your" means the person that purchased our Subscription Service, or if purchased on behalf of an Organisation, the Organisation, as identified in the related account, billing document, subscription record or order as the customer.

Organisation means the corporate entity this Agreement applies to.

Subscription Service means the collection of Tools and Support that we make available to you for the period of time the subscription is paid for.

Subscription Service Effective Date is the date of commencement of your Subscription Service.

Subscription Service Termination Date is the date of termination of your Subscription Service, which may arise at the completion of the Subscription Service period if not renewed, if payment is cancelled or refunded, or if the Agreement is Terminated by either party.

Subscription Service Period means the period commencing on the Subscription Service Effective Date and ending on the Subscription Service Termination Date.

License has the meaning associated with the American English spelling or the word and replaces any use of the word licence. When used as a noun, it refers to the License rights laid out in this Agreement. When used as a verb, it refers to the granting of rights by this Agreement.

Tool or Tools means a product or service made available to you and/or associated Users under a Subscription Service. API Client Libraries are a specific type of Tool provided by us that you may use to facilitate the integration of your Application with a Third Party Application using an available Application Programming Interface (API). Tools include software products comprising downloadable software applications created by us or a software application accessed via a Software as a Service model. Tools may include object code, software libraries, software tools, sample source code, published specifications and documentation. The Subscription Service may include some or all of the available Tools and each may have separate prices. Tools shall include any future, updated or otherwise modified version(s) provided at our sole discretion by us to you.

Derivative Works means software created that derives from the source code or algorithms within our Tools.

Application means a software application you create using our Tools.

Third Party Software is software code or a software Application that is not owned by us or you.

Support means consultation we provide to you or associated Users to help troubleshoot or resolve issues with our Tools or your Applications.

Support Time means the number of hours of support accessible to you for your Subscription Service for all Tools and API Client Libraries.

Support Period means the period of time within your Subscription Service where you have an active subscription to a Tool.

Update or Updates means all extensions, enhancements or changes (and associated Documentation) that we, at our sole discretion, make or add to the Tools and publish for you under your Subscription Service. Updates may reflect changes in Third Party Software, and correct errors or defects in the previous version of those Tools.

User or Users means you and/or your Organisation's employees, representatives, consultants, contractors or agents you have authorised through your Subscription Service to use our Tools on your behalf, having a unique username to access the Subscription Service. This definition excludes all parties who have not been granted rights as a User under your Subscription Service.

Documentation means written instructions or specifications that describe how our Products, Tools or Services operate.

2. Grant of Software License

API Client Library Grant of Licence. For API Client Libraries, you are granted a limited, non-exclusive, non-transferable, royalty-free license (without the right to commercially sublicense) for You, and Users authorised by you under your Subscription Service, to use the API Client Libraries in development and runtime environments for the purpose of enabling your Applications to interface with third party applications via an API.

API Client Library Updates. During the term of your Subscription Service you may access and download Updates provided for your authorised API Client Libraries.

Acceptance by Download or Use. You accept the Agreement by downloading or using our Tools.

Distribution. You have no right to distribute, license (whether or not through multiple tiers), or otherwise transfer the Tools to any third party unless by prior agreement with us.

Derivative Works. You or your authorised Users may create and execute Derivative Works deriving from our API Client Libraries where the primary purpose of the Derivative Works is to achieve the purpose of integrating your Application with a third party application. You may not distribute, sell or make available to others the Derivative Works without our prior written approval. Other than this defined purpose, you shall have no right to create Derivative Works from our Tools.

API Client Library Grant of Licence Survival. Your licence to use API Client Libraries downloaded during the course of your Subscription Service shall survive Termination of the Agreement.

Copies. You and authorised Users may copy the Tools only as strictly necessary to exercise its rights hereunder. You acknowledge that all copyright in the Tools belongs to Tectalic. You may retain a copy of the Tools for back up purposes.

No Reverse Engineering. You shall have no rights to any source code for any of the software in the Tools, except for the explicit rights to use the source code as provided to you in this Agreement. You may not reverse engineer, decompile, modify, disassemble or otherwise alter the Tools or any part thereof or otherwise reduce the Tools to human-perceivable form in whole or in part, except and only to the extent that such activity is expressly permitted by the Agreement or applicable laws.

Third Party Software. You acknowledge that effective utilisation of the Tools may require the use of a development tool, compiler and other software and technology of third parties (Third Party Software). When configured with other Third Party Software, the Tools may assist in automatically downloading some Third Party Software dependencies. Notwithstanding this, you are solely responsible for procuring such Third Party Software and technology and complying with the necessary license requirements for the use thereof. We make no representation or warranty concerning Third Party Software and shall have no obligation or liability with respect to Third Party Software.

Sublicense. No right is granted to you to sublicense rights granted in this Agreement. All rights not expressly granted are reserved by us and, except as expressly set forth herein, no license is granted by us under the Agreement directly, by implication, estoppel or otherwise, under any patent, copyright, trade secret or trade mark or other intellectual property rights of ours. Except as expressly provided in clause 3, nothing herein shall be deemed to authorise you to use our trade marks or trade names. We reserve all rights not otherwise expressly granted in the Agreement.

Ownership. As between us and you, we or our licensors shall own and retain all proprietary rights, including all patent, copyright, trade secret, trade mark and other intellectual property rights, in and to the Tools and any corrections, bug fixes, enhancements, updates, improvements, or modifications that we make thereto. We shall have the exclusive right to apply for, register, and assert any patents, mask work rights, copyright, and such other proprietary protections with respect to the Tools. You acknowledge that the license granted under the Agreement does not provide Licensee with title or ownership to the Tools, but only a right of limited use under the terms and conditions of the Agreement.

3. Other Rights and Limitations

Use of Marks. You are permitted to use our trade marks or trade names (Tectalic IP) in materials with the purpose of promoting the use of our Tools to others provided that you do not:

1. represent in any way that you own the Tectalic IP or are entitled to use the Tectalic IP other than as a licensed User of the Tools;
2. use any of the Tectalic IP in its corporate or business names;
3. apply or seek to register any Tectalic IP in your own name in any country;
4. use, or apply to register, any Tectalic IP that is substantially identical with, or deceptively similar to, any of the Tectalic IP in any country;
5. dispute or contest the intellectual property rights of Tectalic in and to any of the Tectalic IP; and
6. register a business name, company name, domain name or social media handle that is substantially identical with, or deceptively similar to, any Tectalic IP.

No Assertion. You agree not to assert any patent rights related to the Tools or Applications developed using the Tools against us, our distributors, our customers, or other licensed users of the Tools for making, using, selling, offering for sale, or importing any products or technology developed using the Tools.

Security. You are responsible for taking appropriate action and maintaining appropriate protocols to ensure the security of all aspects of the Applications you create using the Tools, including the way the Tools operate in all of the environments you cause them to operate in.

4. Updates

Software Updates. We will provide software Updates for our API Client Libraries at our sole discretion. You may download these Updates from your Subscription Service. We may offer through your Subscription Service, at our discretion, integration with automated download services.

5. Support

Available Support. For your Subscription Service we offer online support to assist you in understanding how to install and how to use your purchased API Client Libraries. Your Subscription Service comes with an initial allocation of support time and you may top up your Support Time.

6. Confidentiality

Confidential Information. The Tools contain valuable proprietary information and trade secrets of ours and our suppliers that remains our property. You shall protect the confidentiality of, and avoid disclosure and unauthorised use of, the Tools.

7. No Warranty

No Warranty Provided. The Tools and Documentation are provided "as-is" without any warranty to the fullest extent permitted by law. To the full extent allowed by law, the foregoing warranties and remedies are exclusive and are in lieu of all other warranties, terms, or conditions, express or implied, either in fact or by operation of law, statutory or otherwise, including warranties, terms, or conditions of merchantability, fitness for a particular purpose, satisfactory quality, correspondence with description, and non-infringement, all of which are expressly disclaimed.

Warranty from Advice. No advice or information, whether oral or written, obtained by the User or you from us or through or from the Tools shall create any warranty not expressly stated in the Agreement.

Suitability. We do not warrant that the Tools and Documentation are suitable for your use, that the Tools or Documentation are without defect or error, that operation will be uninterrupted, or that defects will be corrected. Further, we make no warranty regarding the results of the use of the Tools and Documentation.

8. Limitation

Limitation of Liability. To the fullest extent permitted by law, we will not be liable for any damages of any kind arising out of or relating to the use or the inability to use the Tools with any third party software, its content or functionality, including but not limited to damages for loss of business profits or revenue; business interruption or work stoppage; computer failure or malfunction; loss of business information, data or data use; loss of goodwill; damages caused by or related to errors, omissions, interruptions, defects, delay in operation or transmission, computer virus, failure to connect, network charges, and all other direct, indirect, special, incidental, exemplary, or consequential damages even if we have been advised of the possibility of such damages. Notwithstanding the foregoing, our total liability to you for all losses, damages, causes of action, including but not limited to those based on contract, tort, or otherwise, arising out of your use of the software and/or IP of the Tools, or any other provision of the Agreement, shall not exceed the amount of your fee paid to us. The foregoing limitations, exclusions, and disclaimers shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.

Disclaimer for Third Parties. We disclaim any responsibility for any disclosure of information or any other practices of any third party API provider. We expressly disclaim any warranty regarding whether any personal information is captured by any third party API provider or the use to which such personal information may be put by such third party API provider.

9. Indemnity

Indemnification. You agree to indemnify and hold harmless us and our subsidiaries, affiliates, officers, agents, co-branders, customers, suppliers or other partners, and employees, from any loss, claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your or your associated User's:

1. use of the Tools; or
2. connection to the Tools; or
3. violation of the Agreement; or
4. breach of an Applicable Law in connection with the use of the Tools; or
5. any unlawful act, misuse, or negligent act or omission by you or your associated Users in connection with the use of the Tools; or
6. breach of the rights of any third party.

10. Term and Termination

Commencement. This Agreement commences on the Subscription Service Effective Date.

Termination. The Agreement will terminate automatically if you fail to comply with any of the terms and conditions of the Agreement and you will be liable to us for damages or losses caused by your non-compliance. The waiver by us of a specific breach or default shall not constitute the waiver of any subsequent breach or default. Either party shall have the right to terminate the Agreement, upon a thirty (30) day written notice to the other party.

Audit. We shall have the right to audit you and your associated User's use of the Tools in conjunction with the Agreement, and you will provide prompt and reasonable assistance for this purpose.

Survival of Expiration or Termination. Our rights and your obligations contained in the Agreement survive any expiration or termination of the Agreement.

11. Applicable Law and Arbitration

Applicable Law. The Agreement is subject to the laws of Western Australia.

Arbitration. The parties to the Agreement (you and us) agree to arbitrate any dispute arising from the Agreement in accordance with the terms of the Commercial Arbitration Act 2012 (Western Australia), except for disputes in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trade marks, trade names, logos, trade secrets or patents. The parties (you and us) agree to notify each other in writing of any dispute within thirty (30) days of when it arises. Notices to us shall be sent to [email protected].

Dispute. Any dispute, controversy, difference or claim arising out of or relating to the Agreement, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration.

Remedy. Other than class procedures and remedies specified in this Agreement, the arbitrator has the authority to grant any remedy that would otherwise be available in court. Any dispute between the parties will be governed by the Agreement, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. Whether the dispute is heard in arbitration or in court, the parties (you and us) will not commence against the other a class action, class arbitration or representative action or proceeding.

12. Miscellaneous

Assignment. You may not assign the Agreement or any interest or rights granted hereunder to any third party without our prior written consent. A change of control or reorganisation of you pursuant to a merger, sale of assets or shares shall be deemed to be an assignment under the Agreement. The Agreement shall terminate immediately upon the occurrence of any prohibited assignment.

Agreement Alterations. We reserve the right to alter the Agreement at any time, for any reason, without notice.

Waiver. No failure by either party to exercise or enforce any of its rights under the Agreement will act as a waiver of such rights and no waiver of a breach in a particular situation shall be held to be a waiver of any other or subsequent breach.

Severability. If any provision of the Agreement is found invalid or unenforceable, that provision will be enforced to the maximum extent possible and the other provisions of the Agreement will remain in force.

Entire agreement. The Agreement represents the complete agreement concerning the Subscription Service and Tools and oral amendments are void. If any provision of the Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable.

Acknowledgement. By installing, copying, or otherwise using the Tools, you acknowledge that you have read, understand and agree to be bound by the Agreement.