LICENCE AGREEMENT

THIS IS AN IMPORTANT DOCUMENT.  PLEASE READ THIS CAREFULLY.

This is a contract between Pocket Programs and you.  By using the ERP-Scale software supplied with this document, and the related user guides and materials (together the Software), you agree to be bound by the terms of this Licence.  This Licence covers copies of the Software provided for evaluation or trial purposes, subscription versions and non-subscription or full versions of the Software. Some Licence provisions may not be applicable to you, depending on the particular version of the Software you have purchased or if you are using the Software for evaluation purposes.  The defined terms and the rules of interpretation in this Licence are set out in clause 10.

Important:  There are a number of technical features within the Software that may affect your ability to continue to use the Software.  These are outlined in more detail in the terms of the Licence, but in summary:

Ø    you are purchasing the right to use the Software, not to own it;

Ø    if you have been provided with a Trial Version, you may only use the Software on a temporary basis to evaluate the Software’s functionality and suitability for your requirements;

Ø    the Software contains registration and activation processes to guard against illegal copying;

Ø    to continue using the Software, those processes require you to verify your compliance with the terms under which you are licensed to use the software (for example: the number of computers on which the software is installed and the number of devices interfaced using the software) and to permit continued reactivation of the Software from time to time.

This involves, in all versions, periodically verifying your licence details, and in the subscription version, renewing your subscription when it falls due. Pocket Programs may also verify subscription customers during a subscription period and not only at renewal. You will also need to reactivate your Software if you want to reinstall it (for example, if you upgrade your computer or if you have a hard drive failure);

>     When you purchase the Software or during the course of your subscription you will be provided with a license number.  Please keep the licence number in a safe place. You will need it when you first install or re-install the Software and to reactivate the Software. Please note if you lose your licence number that it will not be replaced by Pocket Programs and you will not be able to install or reactivate the Software;
>     you also need a licence key to reactivate your Software.
>     there will be no charge to activate the Software initially or to reactivate your Software when you verify your licence details or renew a subscription,
>     if you do not verify your licence details or renew your subscription (as applicable) within the required period, the Software may continue to operate but with impaired functionality; and
>      Pocket Programs has a ‘sunset policy’ which means that technical support is not available for some older versions of the Software.  This includes the ability to install or re-install that Software. If you wish to continue using the Software in those circumstances, you will need to upgrade to the current version of that Software. Upgrades will only be provided if the licence for the software is relevant for Technical support in accordance with clause 5.

1. LICENCE

(a)     Evaluation licence: If Pocket Programs has provided a Trial Version of the Software to you, your rights to use the Trial Version are solely as set out in clause 9.

(b)     Licence to use:  Pocket Programs grants you as an organisation a non-exclusive, non-transferable, limited licence to use the Software on the terms of this Licence for the period determined in accordance with clause 8.

(c)     No transfer of copyright:  The Software is licensed not sold, despite any reference to “purchase” or “sale” in this Licence or in any invoice or purchase order for the supply of the Software.  Pocket Programs reserves all rights not expressly granted to you.  Pocket Programs is the owner of copyright in the Software and retains ownership of the copyright and all other intellectual property rights in the Software and is protected by copyright law and international copyright treaty.

2. YOUR PERMITTED USE OF THE SOFTWARE

(a)    If you have purchased a single licence, you:

(i)     may install the Software once, on one computer only.  However, if you wish to reinstall the Software (for example, if you need to install the Software on a replacement computer), then clause 3 will apply; and
(ii)     must ensure that the Software is used for the connection of one device only at any one time.

(b) Additional licences:

If:

(i)     the connection to more than one device is to by used with the Software at the same time; or
(ii)    the Software is to be installed on more than one computer, then you must purchase additional licences of the software.

(c) General restrictions:

You must not:

(i)     use or rely upon the Software for any purpose or in any manner for which the Software is not warranted;
(ii)    copy, reproduce, translate, adapt, vary, merge or modify or create any derivative work based on the Software;
(iii)     reverse engineer, decompile, disassemble, reconfigure or otherwise attempt to discover the source code of the Software; or
(iv)     sell, market, network, transfer, lease, license, sub-license, rent, lend or otherwise dispose of or distribute the Software or use the Software to provide a bureau service.

(d)     Licence verification:

Upon written request from Pocket Programs, including by e-mail, you agree to provide Pocket Programs with a signed certificate:
(i)     verifying that the Software is being used fully in accordance with this Licence, including machine and device limitations, and
(ii)     listing locations, types and serial numbers of equipment on which the Software is run.
You agree to allow Pocket Programs to use and disclose any personal details provided to Pocket Programs in connection with this Licence in accordance with Pocket Programs’ then current privacy policy displayed on Pocket Programs’ website.

(e)     Audit rights:  Pocket Programs may also audit the number of copies of the Software in use or possession by you, the equipment on which the Software is installed or used and the number of users using the Software.  Audits will be conducted in your normal business hours, or upon reasonable prior written notice, at Pocket Programs’ expense.  If the audit reveals underpaid or unpaid fees due to Pocket Programs, Pocket Programs may require you to uninstall any unauthorised versions of the Software and may deny you access to the Software or you will be invoiced for them based on Pocket Programs’ then current price list, and if these exceed 5% of the license fees you have already paid, you will also be invoiced for the cost of the audit.

3. PRODUCT ACTIVATION AND VERIFICATION

(a)    Initial registration and verifying licence details:

This Software may contain technology that protects Pocket Programs against illegal copying.  As a consequence, you may be required to:
(i)     register your details during the initial installation (including your name, contact details and details of the hardware on which the Software will be installed (if this is not done automatically by the Software);
(ii)     if you have a full version, have the Software reactivated periodically thereafter by verifying your licence details to confirm you are using the Software in accordance with these Licence terms;
(iii)     if you have a subscription version, have the Software reactivated (on payment of Pocket Programs’ renewal fee and verification of your licence details) if you wish to renew the subscription;
(iv)     have the Software reactivated by Pocket Programs if you wish to re-install the Software (for example, if you would like to install the Software on a new computer or if you have a hard drive failure and need to reload your Software); and
(v)     provide to Pocket Programs the details of your activation code and licence number for the Software as part of the reactivation process.
You agree to activate or reactivate the Software within a reasonable time or within such time as the Software prompts you to do so.

(b)     Licence number:

Each licence for the Software is provided with a unique licence number.  You should keep licence number safe.  As per clause 3(a)(v), you will be required to provide your licence number to Pocket Programs when you reactivate your Software.

(c)     Manner of verification:

You must verify your licence details in the manner required by Pocket Programs from time to time (which may include email or on-line registration via the Internet).  The Software may prompt you as to the required manner of verification.

(d)     Charges for reactivation:

Pocket Programs will not charge you to activate the Software initially or to reactivate your Software when you verify your licence details or renew a subscription, unless you have lost your installation or licence number.  Pocket Programs may charge you a fee for technical support to reissue a licence number.  Pocket Programs may also charge a fee for technical support if you need to reactivate the Software in other circumstances (for example, if you need to reinstall the Software because you have a new computer or need to reload the Software due to a hard drive failure).

(e)     Consequences of non-renewal and failure to verify details:

This Software is provided to you on the understanding and acknowledgment that it may contain technology which deactivates and disables the Software if a subscription is not renewed or in the case of a full licence version, you have not verified your licence details when periodically prompted to do so by Pocket Programs or by the Software.  If the Software is not reactivated within the required period, the Software may continue to operate but with impaired functionality.

(f)     Statutory declaration:

In certain circumstances, before permitting a re-activation, Pocket Programs may require you to provide it with a Statutory Declaration stating the reasons for re-activation in a form required by Pocket Programs.

(g)     Older versions:

Pocket Programs has a sunset policy (covered in more detail in clause 4(a)) which means that technical support is not available for certain older versions of the Software.  If technical support is not available for your version, you will need to purchase a new version or Upgrade in order to continue using the Software.

4. TECHNICAL SUPPORT

Technical support is provided:
(i)     for full licences in the first 12 months after licence purchase; and
(ii)     in the case of a subscription version of the Software, during the period for which you have paid the relevant subscription fees; and
(iii)    for all licences for which a maintenance contract has been purchased, during the period of validity of the maintenance contract.

Technical support may be withheld if not all licences of your organisation fall into one of the above three categories.

(a)     Period when technical support is available:

Pocket Programs will provide technical support for the Software, during the following periods:
(i)     in the case of a subscription version of the Software, during the period for which you have paid the relevant subscription fees (unless further releases of the Software in question are discontinued); and
(ii)     in the case of a full version of the Software, there is a ‘sunset period’ during which technical support may not be available for that version.  The sunset period for a version will commence no earlier than 1 year after the date on which you purchased a licence for the software and at the time of purchase it was the current version.

(b)     What is included as part of technical support:

Pocket Programs will provide technical support in accordance with its then current technical support policy, which may include:
(i)     as contemplated by clause 3, the technical support required to reactivate the Software or to issue a replacement  activation code (for example, when you verify your licence details, renew a subscription or if you need to reinstall the Software);
(ii)     provision of remote help desk support services;
(iii)     access to technical information about the Software contained on Pocket Programs’ website; and
(iv)     the ability for you to download Updates and the provision of Upgrades of the Software subject to clause 5.

(c)     Service Window:

Australian (NSW) business days 8:00 – 20:00 AEDT/AEST

(d)     Reaction time:

(i)     For tickets submitted within the service window, Pocket Programs will review and respond to the ticket within four hours.
(ii)    For tickets submitted outside of the service window, Pocket Programs will review and respond to the ticket within four hours of the start of the following service window.
(iii)   If Pocket Programs requires further information to address the ticket, the same reaction time will apply starting from when the additional information is received from the customer.

5. UPDATES AND UPGRADES

Pocket Programs will decide at its discretion if changes to the software constitute an update or an upgrade.

Updates and upgrades are provided:

(a)    in the case of a subscription version of the Software, during the period for which you have paid the relevant subscription fees; and
(b)    in the case of full licences:
(i)         in the first 12 months after licence purchase; or
(ii)        for all licences for which a maintenance contract has been purchased, during the period of validity of the maintenance contract and which have had uninterrupted maintenance agreement cover for the 24 months preceding the installation of the upgrade.

6. LIMITED WARRANTY

(a)     Software provided on an ‘as is’ basis:

Subject to clause 6(b), Pocket Programs provides the Software to you on an “as is” basis and without any representations by Pocket Programs or any of its authorised distributors regarding the use, performance or results of the use, of the Software.

(b)     Defects in media:

Pocket Programs warrants that the media on which the Software is recorded is free from defects in manufacture for a period of 90 days from the date of delivery.  During this period, if you return the Software to your place of purchase, Pocket Programs will replace any defective media on which the Software was supplied and any Software on that media, free of charge, unless you caused damage to the media due to poor handling.

(c)     No guarantee that error free or uninterrupted use:

While Pocket Programs has endeavoured to make sure that the Software works substantially as per the specifications published by Pocket Programs from time to time, Pocket Programs does not guarantee that the Software will work on all computer hardware platforms or configurations and makes no warranty that the Software will be error free, that its use will be uninterrupted or be fit for your purpose.

(d)     Internet access, telecommunications networks, firewalls and security:

Pocket Programs does not guarantee connections to its online activation server as these may be dependent upon third party networks and security measures over which Pocket Programs has no control.

7. LIABILITY

(a)     Certain rights cannot be excluded:

The Trade Practices Act, 1974 and other laws may imply certain conditions and warranties into this Licence and give you certain rights and remedies that cannot be excluded or modified.  This clause 6 and the limited warranties provided in clause 5, do not exclude or modify any of those rights if to do so would contravene that law or make any part of this Licence void.

(b)     Exclusion of warranties:

To the full extent permitted by law, Pocket Programs excludes all conditions, warranties and rights that may be implied into this Licence.  If conditions, warranties or other rights for your benefit are implied in this Licence or otherwise conferred by law and it is not lawful to exclude, restrict or modify them, then those conditions, warranties and other rights will (but only to the extent required by law) apply to this Licence.

(c)     Limitation of implied terms:

Pocket Programs’ (and its distributors’) liability for breach of any implied conditions or warranties that cannot be excluded is limited, to the extent permitted by law and at the option of Pocket Programs, to replacing or re-supplying the goods or services or their equivalent again or the payment of the cost of having the goods or services or their equivalent replaced or supplied again.

(d)     General exclusion and limitation:

Other than as set out in clauses 6(b) and 6(c), and to the full extent permitted by law:
(i)     Pocket Programs (and its authorised distributors) will not be liable to you or any other person for any direct or indirect loss, damages, liability, costs or expenses suffered by you or any other person relating to the performance or non-performance of the Software or any breach of this Licence or the supply of the Software or provision of technical support (whether by telephone or remote access or other means); and
(ii)     Pocket Programs’ maximum liability for damages arising in connection with this Licence or the supply of the Software is limited to the amount paid by you for the Software.

(e)     Your liability to Pocket Programs:

You agree that Pocket Programs (and its authorised distributors) will not be liable, other than as expressly set out in this Licence, and that you will indemnify Pocket Programs (and its authorised distributors) from any liability, loss, damage, costs or expenses which you may suffer or incur as a result of your use of the Software (including any claims made against you by third parties).

(f)     Pocket Programs has no responsibility for recommendations:

Pocket Programs, its employees, agents, contractors and the authors disclaim any and all liability and responsibility to any person, whether a user of this Software or not, in respect of anything (including, without limitation, any error in or omission from this Software) and of the consequences of any actions taken or omitted to be taken in reliance, whether wholly or partially, upon all or any part of the content, recommendations or help contained in this Software.

(g)    It is your responsibility to maintain the parsing settings in ERP-Scale:

The formatting of the weight string transmitted to SAP is specified in the configuration of the parsing settings within ERP-Scale. It is your responsibility to maintain the parsing settings in ERP-Scale to ensure that the weight from the weighing device is transmitted to SAP accurately. Pocket Programs disclaim any and all liability for the correctness of these settings.

8. TERM AND TERMINATION OF LICENCE

(a)     Licence Term:

Unless this Licence is terminated earlier in accordance with its terms, your right to use the Software in accordance with this Licence continues:
(i)     in the case of a subscription version of the Software, for an initial period of 12 months from the date of registration of the Software.  This Licence will automatically renew for a further 12 month period upon the payment of Pocket Programs’ annual subscription fee.  If the annual subscription fee is not paid on or before the termination of the current 12 month period, this Licence will automatically terminate; and
(ii)     in the full version of the Software, indefinitely, however you may be required to periodically verify your licence details and have the Software reactivated as per clause 3 in order to keep using the Software;

(b)     Termination by Pocket Programs for breach:

Pocket Programs may terminate this Licence if you are in breach of its terms or as otherwise set out in this Licence.

(c)     Survival:

Clauses 2, 4, 5, 6 and this clause 7 will survive the termination of this Licence.  Termination of this Licence will not prejudice any right which Pocket Programs may have, or but for the termination may have had, against you for a breach of this Licence.

(d)     Things you must do on termination:

Upon the termination of this Licence, you or your representative must promptly uninstall the Software from your computer; destroy any CD, User Guide and related materials and any copies of them in your possession or control or return or dispose of them in the manner directed by Pocket Programs.  Upon written request from Pocket Programs you agree to provide a Statutory Declaration to Pocket Programs that you have complied with your obligations under this clause 7(d).

9. SUBSCRIPTION TERMS

If you have purchased a subscription version of the Software, this additional clause 9 will apply.

(a)     Entitlement to Upgrades and Updates:

During the period for which you have paid subscription fees you will receive, included in the cost of the subscription, all Upgrades and/or Updates of the Software, via Internet download.

(b)     No extension of Licence term:

Your right and entitlement to use the Software, as enhanced by any Upgrades and/or Updates, concludes at the end of the term of the Licence (subject to payment of an annual subscription fee) and is not linked to the dates of release, registration or provision by Pocket Programs of any Upgrades and/or Updates.

(c)     This Licence prevails:

If you have bought this Software as an Upgrade to an earlier version of the Software, this Licence shall supersede any previous licence agreement.

(d)     Not all Upgrades included:

Your subscription to the Software and any Upgrades and/or Updates under this Licence does not grant you the right to receive special versions of the Software created for certain customers or market segments, even though they may contain similar features or functions.  Versions of the Software which may from time to time be offered in retail or other channels in different configurations as special promotions are not included as part of the subscription.

(e)     No obligation on Pocket Programs to upgrade:

Upgrades and/or Updates will be developed and released by Pocket Programs in its sole discretion, and Pocket Programs does not warrant or represent that it will develop or release any Upgrades and/or Updates during the term of the subscription period or Licence.  Furthermore, Pocket Programs does not warrant that the Upgrades and/or Updates will be provided to you or made available within any specified time period following the commercial release of such Upgrades and/or Updates.

(f)     Deactivation at end of subscription period:

As per clause 3, the subscription version of the Software is provided to you on the understanding and acknowledgment that it may contain technology which deactivates and disables the software if your subscription is not renewed or you are found to be in breach of this license agreement If the Software is not renewed by the end of the required period, the Software may continue to operate but with impaired functionality.

(g)     You need a full version if you don’t renew:

If you elect not to renew your subscription, the Software does not allow you to upgrade to a non-subscription version of the Software by way of the purchase of an Upgrade pack.  In such circumstances, you are only able to upgrade to a later non-subscription version of the Software by purchasing a full (non-upgrade) version of the Software.

(h)     Early termination:

Subscription Licences are purchased for a 12 month period. Should you wish to terminate the licence before the end of the period, you will not be entitled to a refund of fees paid.

10. TRIAL LICENCE

If you have been provided with a Trial Version of the Software, this clause 9 sets out the terms that will apply to your use of the Trial Version.

(a)     Licence: Your licence to use the Trial Version:

(i)     permits you to evaluate the Software’s functionality and suitability for your requirements;
(ii)     is subject to the general restrictions in clause 2(c) and the limited warranty in clause 5(a); and

(b)     Evaluation Period:

You acknowledge that your licence to use the Trial Version will only apply for the Evaluation Period. At the end of the Evaluation Period:

(i)     you must not and will not be able to continue to access the Trial Version, including any data that you have entered into the Trial Version; and
(ii)     if you wish to use the Software you must purchase a full version or subscription version of the Software.

(c) Entitlements:

You:
(i)     are not entitled to Upgrades or Updates (or any other software other than the Trial Version); and
(ii)     may be required to pay for any technical support that you may require in relation to the Trial.

(d)     Liability:

You acknowledge that subject to clause 6(b) and 6(c), and to the full extent permitted by law, Pocket Programs excludes all liability to you for any loss, damage, liability, costs or expenses suffered by you relating to the performance or non-performance of the Trial Version or any breach of this clause

11. GENERAL

(a)     Some defined terms:

In this Licence:

Trial Version means Software that has been provided to you on a temporary basis in order to carry out a trial of that Software to determine whether you wish to use the Software on an ongoing basis.

Upgrade means a new version of the Software which contains additional functionality or other enhancements.   Pocket Programs will determine whether a new version constitutes an Upgrade or an Update.

Update means a new version of the Software which contains minor enhancements.

Device means any device for which data is provided to SAP through the software. Examples of device are:
i.    Weighing or other devices with a serial or USB port connected to the local or remote computer,
ii.    Physical devices providing data via TCP or UDP,
iii.    Barcode devices

(b)     Applicable law:

This Licence is governed by the laws of the State of New South Wales, Australia.

(c)     Entire Agreement:

This Licence contains the entire agreement between Pocket Programs and you in relation to its subject matter and supersedes any prior agreements and understandings, whether written or oral.

(d)     Waiver:

Any failure to enforce any rights under this Licence by Pocket Programs is not to be taken as a waiver of those rights.

(e)     Variation:

To the extent permitted by law, Pocket Programs may vary any of the terms and conditions of this Licence upon providing you with thirty (30) days notice in writing and a copy of the replacement terms and conditions.  In the case of subscription users no new terms will come into force until the commencement of your renewed subscription period. Pocket Programs will display any new terms and conditions on Pocket Programs’ web site and you should check the website regularly.

(f)     Headings:

Clause headings are for ease of reference only and do not affect the meaning of this Licence.

Copyright© 2008-2009 Pocket Programs