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Terms of service

Website Use Terms And Conditions

Visual Analysis Pty Ltd T/A VA-Worldwide

This website with URL address https://www.va-worldwide.com is owned and operated by Visual Analysis Pty Ltd (ABN 24 075 960 075). Should you continue to use this website, you are agreeing to comply with and be bound by the following terms and conditions of use, which together with our privacy policy govern Visual Analysis Pty Ltd’s relationship with you in connection with this website. Should you not agree with any of these terms and conditions, please do not use our website.

The term ‘VA’ or ‘Visual Analysis Pty Ltd’ or ‘us’ or ‘our’ or ‘we’ refers to Visual Analysis Pty Ltd ABN 24 075 960 075, the owner of the website, whose registered office is L3, 59 Wentworth Ave, Kingston in the Australian Capital Territory. The term ‘you’ or ‘your’ refers to the website user.

  1. Your use of this website is subject to the following terms and conditions:
  2. The content of this website is for your general information and use only. It is subject to change without prior notice.
    This website uses cookies to monitor browsing preferences. A cookie is a piece of data stored on a site visitor’s hard drive to help us improve your access to our site and identify repeat visitors to our site. For instance, when we use a cookie to identify you, you would not have to log in a password more than once, thereby saving time while on our site. Cookies can also enable us to track and target the interests of our users to enhance the experience on our site. Usage of a cookie is in no way linked to any personally identifiable information on our site.
  3. Neither we nor any third parties provide any warranty or guarantee as to the performance, accuracy, timeliness, completeness or suitability of the information and materials found or offered on this website for any particular purpose. You hereby acknowledge that such information and materials may contain mistakes, inaccuracies or errors and we expressly exclude any liability for such to the fullest extent permissible by law.
  4. Your use of any information or materials on this website is entirely at your own risk, for which we shall not be liable. It shall be your own responsibility to ensure that any products, services or information available through this website meet your specific requirements.
  5. This website contains material which is owned by or licensed to us. This material includes, but is not limited to, the content, design, layout, appearance, look and graphics of the website. Any reproduction of the website’s material is prohibited other than in accordance with the copyright notice, which forms part of these terms and conditions.
  6. All trademarks reproduced in this website, which are not the property of, or licensed to us, are acknowledged on the website.
  7. Unauthorised use of this website may be a criminal offence and/or give rise to a claim for damages.
  8. This website may also, on occasion, include links to other websites which are not controlled by us. These links are provided for your convenience to provide you with further information. You acknowledge that they are used at your own risk. They do not signify that we recommend or endorse the websites. We have no control over the nature, content and availability of those websites.
  9. Your use of this website and any dispute arising out of your use of it is subject to the laws of the Australian Capital Territory.
  10. You may only use the website for lawful purposes and in a manner consistent with the nature and purpose of the website.
  11. These terms and conditions do not relate to your use of any product or service described on our website unless otherwise agreed. You must refer to the individual warranty relevant to any particular product or service.
  12. These terms and conditions may be amended from time to time. Your continued use of our website following any such amendments will be deemed to be confirmation that you accept those amendments.
  13. You indemnify us from and against all claims, suits, demands, actions, liabilities, costs and expenses (including legal costs and expenses on a full indemnity basis) resulting from your use of the website.
  14. In no event will we be liable for any loss, damage, cost or expense including legal costs and expenses (whether direct or indirect) incurred by you in connection with the use of this website.
  15. Every effort is made to keep the website up and running smoothly. However, we take no responsibility for, and will not be liable for, the website being temporarily unavailable due to technical issues beyond our control.


License Agreements

Software Licence Agreement – Visual AnalysisSoftware Licence Agreement – IBM Products

BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, CLICKING ON AN “ACCEPT” BUTTON,
OR OTHERWISE USING THE SOFTWARE, LICENSEE AGREES TO THE TERMS OF THIS
AGREEMENT. THIS LICENSE SUPERCEDES ANY OTHER CLICK AND ACCEPT LICENSE FOR THE
PRODUCT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF LICENSEE, YOU
REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND LICENSEE TO THESE
TERMS. IF YOU DO NOT AGREE TO THESE TERMS: DO NOT DOWNLOAD, INSTALL, COPY,
ACCESS, CLICK ON AN “ACCEPT” BUTTON, OR USE THE SOFTWARE; AND PROMPTLY
RETURN THE UNUSED MEDIA, DOCUMENTATION, AND PROOF OF ENTITLEMENT TO THE
PARTY FROM WHOM IT WAS OBTAINED FOR A REFUND OF THE AMOUNT PAID. IF THE
SOFTWARE WAS DOWNLOADED, DESTROY ALL COPIES OF THE SOFTWARE.

The Software may be made available to Licensee by means of a download or of a file based key (in which case clause 11.1 shall apply).

1. DEFINITIONS.

1.1. “Authorised User” has the meaning set forth in Section 2.1.
1.2. “Confidential Information” means all information of a confidential nature relating to, or to the business and/or other goods or services of, a party to this Agreement; or relating to, or to the business and/or goods and services of, a party’s affiliates or licensors; as well as the terms and conditions of this Agreement (including, without limitation, the Licence Fee and Support Fee). Confidential Information shall include information previously obtained by one party from the other pursuant to a non-disclosure agreement. Confidential Information of Licensor includes, without limitation, confidential information pertaining to the Product and Maintenance and Support Services. Confidential Information includes information in any form, whether or not tangible. Confidential Information shall not include information that (a) is in or enters the public domain without breach of this Agreement through no fault of the receiving party, (b) the receiving party was demonstrably in possession of prior to first receiving it from the disclosing party, (c) the receiving party can demonstrate was developed by the receiving party
independently and without use of, or reference to, the disclosing party’s information, or (d) the receiving party receives from a third party without restriction on disclosure and without breach of a non-disclosure obligation.
1.3. “Documentation” means the manuals and related materials that Licensor ordinarily distributes, at its
sole discretion, in softcopy or hardcopy with the Software, and includes documentation Licensor may
provide to Licensee in connection with Maintenance and Support Services.
1.4. “Effective Date” means the date the Product was received by Licensee.
1.5. “IBM” means International Business Machines.
1.6. “Licence Permit ” means the hardware or software authorisation key that enables an Authorised User to
access the Software.
1.7. “Intellectual Property Rights” means all patents, copyrights, database right, rights in designs, domain
names, trademarks, service marks, icons, trade names, and other proprietary rights, and all
applications and registrations therefor, wherever in the world arising or available.
1.8. “Licence Fee” has the meaning set forth in Section 5.1 (Licence Fee).
1.9. “Licensor” means the party who supplies Licensee with the Product in consideration for Licensee’s
direct payment of the Licence Fee (whether VA or a third party).
1.10. “Maintenance and Support Services” has the meaning set forth in Section 3 (Maintenance and Support
Services).
1.11. “Maintenance Releases” means those new versions of the Software and the Documentation that
contain fault fixes and minor enhancements.
1.12. “Major Release” means a new version of the Software and the Documentation that contains major
enhancements and new features.
1.13. “Media” means the physical medium on which the Software is recorded or printed.
1.14. “Product” means, collectively, the Software, the Documentation, the Media, and the Licence Permit
licensed to Licensee by Licensor pursuant to this Agreement.
1.15. “Support Fee” has the meaning set forth in Section 5.2(Support Fee).
1.16. “Initial Support Period” has the meaning set forth in Section 4.2 (Initial Support Period).
1.17. “Subsequent Support Period” has the meaning set forth in Section 5.3 (Subsequent Support
Periods).
1.18. “Truncated Support Period” has the meaning set forth in Section 5.4 (Truncated Support Periods).
1.19. “Separately Licensed Code”
means terms and conditions under IBM International Program Licence
Agreement (“IPLA”) and the applicable License Information that applies to the Program, available on
IBM Internet Website http://www.ibm.com/software/sla/sladb.nsf
1.20. “Software” means the installed set of Licensor computer programs and related file structures in object
code format, as well as all programs and file structures contained in Maintenance Releases and Major
Releases.
1.21. “Trade Secrets” means any VA or Licensor proprietary technical information, design, process,
procedure, formula, or improvement that is commercially valuable and secret (in the sense that its
confidentiality affords VA or Licensor a competitive advantage over its competitors), including without
limitation, the Software, the VA Semantic Type Library, and all technical and descriptive information
pertaining to the Product.
1.22. “User Licence” means a licence that permits one (1) Authorised User to access and use the
Product.
1.23. VA” means Visual Analysis, a company incorporated in Australia with the ABN of 24075960075 whose
registered office is situated at Level 1, 6 Lonsdale Street, Braddon, ACT, 2612.

GRANT OF LICENCE AND RESTRICTIONS

2.1. Scope of Licence. Subject to the terms and conditions of this Agreement, Licensor hereby grants
Licensee a limited, nonexclusive, non-transferable, sub-licence to access and use the Product through
Licensee’s officers, employees, staff, and independent contractors (collectively, “Authorised Users”)
who are bound by enforceable written obligations to: (i) treat the Product and Confidential Information
of Licensor as confidential (as set forth in Section 9 (Confidentiality); and (ii) use such Product and
Confidential Information only on behalf of Licensee for Licensee’s internal business purposes and only
in accordance with this Agreement. The number of Authorised Users that may concurrently use the
Product is limited to the number of User Licences acquired by Licensee. At no time may the number of
Authorised Users concurrently using a Product exceed the maximum number of User Licences for such
Product.
2.1. Orders for Additional Authorised Users. Licensee may obtain additional User Licences by requesting a
quotation from Licensor, submitting a purchase order, which is subject to Licensor’s acceptance, and
paying the applicable Licence Fee and Support Fee. All additional User Licences shall be subject to the
terms and conditions of this Agreement. Each purchase order must: (i) specify the Product ordered; (ii)
contain a statement incorporating this Agreement by reference; (iii) specify the number of User
Licences being ordered; and (iv) specify the total Licence Fee and Support Fee due for those additional
User Licences. Licensee agrees to abide by the terms of this Agreement with respect to any additional
User Licences ordered. Section 10.2 (Integration) shall apply in respect of Licensee’s purchase order.
2.2. Limited Copy Right. Licensee may make a reasonable number of copies of the Software and the
Documentation solely for backup, archival, or disaster recovery purposes. Any copy that Licensee
makes of the Software and Documentation, in whole or in part, is the property of Licensor. Licensee
agrees to reproduce and include on any copy of the Software and Documentation, in their entirety and
without alteration, all copyright, trademark, or other proprietary rights notices that appear in or on the
original.
2.3. Restrictions. Except to the extent expressly permitted by mandatory provisions of applicable law
notwithstanding any contractual agreement to the contrary, Licensee may not: (i) sell, sublicense,
lease, rent, loan, assign, convey, distribute or otherwise transfer the Product to or through any third
parties (except as otherwise expressly provided in this Agreement); (ii) copy, use, or modify the
Product for any purpose or in any manner not expressly permitted in this Agreement; (iii) use or allow
use of the Product through any timesharing service, service bureau, network, commercial hosting, or
other commercial information technology services or by any other means, by or in the interest of any
third party; (iv) use any of the program’s components, files, modules, audio-visual content, or related
license materials separately from the Software or
(v) permit or encourage any third party to do any of the foregoing.
2.5. No Reverse Engineering / Derivate Works. Except to the extent and for the purposes expressly
permitted by mandatory provisions of applicable law notwithstanding any contractual agreement to the
contrary, Licensee may not (and may not permit or encourage any third party to) without Licensor’s
express written consent: (i) reverse engineer, reverse assemble or reverse compile the Software, or any
part thereof, or otherwise attempt to derive source code; or (ii) create any alteration, adaptation,
modification, translation, improvement or derivative work of the Software or Documentation Licensee
may not deconstruct or reverse engineer a Licence Permit in order to access the Software or otherwise
attempt to bypass hardware or software authorisation.
2.6. Indemnity for Failure of Licensee to Comply with Licence. Licensee shall be responsible for, and shall
indemnify VA and Licensor (if Licensor is not VA) for, all loss arising from any failure of any of Licensee
or Authorised Users to comply with the terms and conditions of this Agreement.
2.7. All Rights Reserved. All rights not expressly granted by Licensor in this Agreement are hereby reserved
to Licensor.
2.8. Data Protection. Licensee acknowledges and agrees that personal information that is provided to
Licensor in connection with this Agreement may be: (i) processed by Licensor in accordance with
Licensor’s privacy policy, as may be amended from time to time; (ii) provided to VA where necessary
for the purposes of this Agreement, including the provision of Maintenance and Support Services; and
(iii) transferred out of the country or other jurisdiction where Licensee or Licensor is located.
2.9. Database System. Licensee acknowledges and agrees that the database system (if applicable) that is
connected to the Software (“Database System”) is licensed under a separate licence agreement
between Licensee and the provider of the Database System. Licensee acknowledges and agrees that
the Database System is governed exclusively by the applicable licence agreement with the provider of
the Database System and that such licence agreement is solely between Licensee and the applicable
provider and Licensor has no
obligation or liability, on any theory of liability, with respect to such Database System. In particular,
without limitation, Licensor has no obligation to configure the connection between the Software and the
Database System or to provide Maintenance and Support Services for the Database System. In the
event Licensee requires that Licensor have access to any third party Database System, then Licensee
hereby represents and warrants that it has obtained all necessary third party consents to permit such
access. Licensee agrees to hold Licensor harmless against any claims which result from Licensee’s
failure to obtain such consent, and Licensor’s access, if required, will be limited to providing the
applicable support or other services as required. Licensor will have no further obligation or restriction
in connection with such Database System access unless agreed to in writing.
2.10. No Tampering with Database Structure. Except as expressly permitted by the Documentation, Licensee
shall not use any means other than the Software to: (i) enter, modify, or delete data in any database
supplied by Licensor as part of the Product or generated by the Software; or (ii) modify the structure of
any such database. Licensee acknowledges and agrees that breach of this Section 2.10 (No Tampering
with Database Structure) is likely to prejudice the integrity of such database and also to result in
technical difficulties in installing and implementing future updates of the Product.
3. MAINTENANCE AND SUPPORT SERVICES
In consideration for the Support Fee for a Product, Licensor will, during the period to which the Support Fee
pertains, provide, or procure VA to provide, the services described in the Technical Support Schedule
attached to this Agreement (“Maintenance and Support Services”) for that Product.
If Licensee chooses to obtain Maintenance and Support Services for a Product, Licensee must obtain
Maintenance and Support Services for all User Licences for that Product. If Licensee does not pay the
Support Fee for a Product, then Licensor has no obligation to provide Maintenance and Support Services for
that Product and this Section 3 (Maintenance and Support Services) shall not (or, as the case may be, shall
no longer) apply. If the Licensee chooses not to obtain Maintenance and Support Services for a Product, the
agreement between the Licensor and Licensee will be deemed terminated and the Licensee will need to
cease using the product within 14 days of notification. Licensee will provide sufficient, free, and safe access
to Licensee’s facilities for Licensor to fulfil its obligations. Upon mutual agreement, Licensor or VA may
remotely access Licensee’s system to assist Licensee in isolating the software problem cause. In the event
Licensee requires that Licensor have access to any third party Database System in connection with
Maintenance and Support Services or otherwise, then Licensee hereby represents and warrants that it has
obtained all necessary third party consents to permit such access. Licensee agrees to hold Licensor
harmless against any claims which result from Licensee’s failure to obtain such consent, and Licensor’s
access, if required, will be limited to providing the applicable support or other services as required. Licensor
will have no further obligation or restriction in connection with such Database System access unless agreed
to in writing. If required, the Licensee hereby gives permission to IBM to access Licensee’s system or
facilities for the purpose of performing program services of its software component.

4. TERM AND TERMINATION

4.1. Term. This Agreement shall be deemed to have commenced on the Effective Date and is effective
until terminated as provided in this Section 4 (“Term and Termination”).
4.2. Initial Support Period. Licensee will pay Licensor’s then-current Support Fee, concurrently with the
License Fee, for each User Licence for the Product in consideration for receiving the Maintenance and
Support Services for the period of one (1) year from the Effective Date and Licensor shall provide
Maintenance and Support Services for such period (“Initial Support Period”) for that Product. If the
Licensee chooses not to obtain Maintenance and Support Services for a Product, the agreement
between the Licensor and Licensee will be deemed terminated and the Licensee will need to cease
using the product within 14 days of notification.
4.1. Termination for Cause. Licensor may, at its sole discretion, terminate this Agreement in its entirety with
respect to a Product (i.e., the licence granted hereunder and the Maintenance and Support Services), or
the Maintenance and Support Services only, effective immediately if (i) Licensee fails to pay the Licence
Fee due hereunder for more than fourteen (14) calendar days after Licensor issues a notice to the
Licensee that the Licence Fee was overdue; (ii) Licensee has breached or otherwise failed to comply
with a material obligation under this Agreement and such breach is irremediable or has continued
unremedied for a period of at least thirty (30) calendar days after Licensor issues a notice to Licensee
specifying the breach and requiring it to be remedied; or (iii) after Licensor has provided written notice
of a breach described in sub-section (ii), Licensee repeats the same breach within the consecutive
twelve (12) months period following the date such notice was first given. Licensor may, at its sole
discretion, terminate Maintenance and Support Services for a Product if Licensee fails to comply with a
material obligation under the Technical Support Schedule or fails to pay the Support Fee due hereunder
for more than fourteen (14) calendar days after receiving a notice from Licensor that the Support Fee is
overdue.
4.2. Bankruptcy. Licensor may terminate this Agreement immediately if Licensee institutes or consents to
any proceedings in insolvency or bankruptcy,
4.3. Obligations upon Termination. Upon termination of this Agreement for any reason Licensee shall
discontinue use of the Product and any portion thereof, and return the Product, Licence Permit, and all
Confidential Information to Licensor, or, at Licensor’s option, destroy the Product and all Confidential
Information, and all copies or partial copies thereof. Termination of this Agreement does not free either
party from any of its obligations under this Agreement that call for performance after the termination
date, and termination shall not affect the rights of either party accruing prior to termination. Each
party’s right to terminate shall be in addition to any legal and equitable remedies available to such
party.
4.4. Licensee Termination. The Licensee may terminate this agreement with 14 days notice to the Licensor.
Upon termination of this Agreement for any reason the Licensee shall discontinue use of the Product
and any portion thereof, and return the Product, Licence Permit, and all Confidential Information to
Licensor, or, at Licensor’s option, destroy the Product and all Confidential Information, and all copies
or partial copies thereof. The Licensee will not be entitled to a reimbursement of funds for the period
not consumed if the agreement is terminated prior to the anniversary date of the support period.
4.5. Survival. The provisions of this Agreement which by their terms are intended to survive the termination
of this Agreement, including but not limited to, Sections 2.3 (Limited Copy Right), except for the first
sentence of that section, 2.4 (Restrictions), 2.5 (No Reverse Engineering / Derivate Works), 2.7 (All
Rights Reserved) through 2.8 (Data Protection), 2.9 (Database System), 4 (Term and Termination), 5
(Fees and Payment), 6.5 (Disclaimer of Warranties), 7 (Indemnification), 8 (Limitations of Liability), 9
(Confidentiality) and 10 (Miscellaneous) shall survive any termination of this Agreement.

5. FEES AND PAYMENT

5.1. Licence Fee. Licensee shall pay Licensor a licence fee per User Licence as specified in Licensor’s
quotation (“Licence Fee”).
5.2. Support Fee. Licensee shall pay Licensor a Support Fee per User Licence as specified in Licensor’s
quotation for Maintenance and Support Services (“Support Fee”) for the Initial Support Period.
5.3. Subsequent Support Periods. After the Initial Support Period, support for this Agreement may be
renewed upon mutual agreement of the parties.
5.4. Truncated Support Periods. If Licensee obtains licences for additional User Licences or Products after
the Effective Date, the Subsequent Support Period shall be truncated, as determined by Licensor, so
that the terms for Maintenance and Support Services for all licences of the Products held by Licensee
coincide (“Truncated Support Period”).
5.5. Support Fee for Truncated Support Period. The Support Fee during a Truncated Support Period shall be
prorated by Licensor.
5.6. Reinstatement Fee for Lapsed Period. If, at any time, Licensee discontinues Maintenance and Support
Services, the reinstatement of Maintenance and Support Services shall be subject to a reinstatement
fee in accordance with Licensor’s then-current policy.
5.7. Invoices. Licensor will invoice to Licensee all Licence Fees and Support Fees and any expenses
incurred pursuant to Section 3 (Maintenance and Support Services) or the Technical Support Schedule.
Amounts are due upon receipt of invoice and payable within 30 days or as specified in an invoice.
Licensee agrees to pay accordingly, including any late payment fees. The Licence Fee (including the
Support Fee for the Initial Support Period) shall be invoiced on or after the Effective Date. The Support
Fee for each Subsequent Support Period shall be invoiced upon acceptance of Licensee’s purchase
order for Maintenance and Support Services for that Subsequent Support Period.
5.8. Taxes. If any authority imposes on the Product or related Maintenance and Support Services a duty,
tax, levy, or fee, excluding those based on Licensor’s net income, then Licensee agrees to pay that
amount, as specified in an invoice, or supply exemption documentation. Licensee is responsible for
any personal property taxes for the Product from the date that Licensee obtains it. If any authority
imposes a customs duty, tax, levy, or fee for the import into or the export, transfer, access, or use of
the Software outside the country in which the original Licensee was granted the license, then Licensee
agrees that it is responsible for, and will pay, any amount imposed in addition to the relevant Licence
Fee or Support Fee.
5.9. Other Fees. The Licence Fee and the Support Fee are exclusive of charges for all services that are not
Maintenance and Support Services. If additional professional services are required by Licensee,
including but not limited to, training, consulting, and services required to correct errors or problems
caused by Licensee, Authorised Users, Licensee’s hardware, or to perform additional new configuration
changes requested by Licensee, such services will be provided under a separate agreement. If
Licensee loses or damages a copy of the Product or the Licence Permit, Licensor will provide Licensee
with a replacement copy for payment of a reasonable replacement fee in accordance with Licensor’s
then-current replacement policy.

6. LIMITED WARRANTIES

6.1. Limited Product Warranty. Licensor warrants that, for ninety (90) calendar days after the Effective Date
(“Warranty Period”), the Software (excluding the Maintenance Releases and Major Releases), when
used in its specified operating environment will, when used in accordance with this Agreement,
conform to its specifications. If within such Warranty Period any Software fails so to perform, Licensee
may (i) return the Product for replacement without charge; or (ii) at Licensor’s sole discretion, request a
refund of the Licence Fee actually paid by Licensee in exchange for return of the non-conforming
Product. Licensor warrants that, during the Warranty Period, the Media and the Documentation shall be
free from defects in materials and workmanship. If, within the Warranty Period, any such defect or
deviation in the Media or Documentation appears, Licensee may return the Product to Licensor for
replacement without charge. The warranty applies only to the unmodified portion of the Product.
Licensee is responsible for the results obtained from the use of the Product and Maintenance and
Support Services.
6.2. Limited Services Warranty. Licensor warrants that Licensor will perform the Maintenance and Support
Services, including the provision of Maintenance Releases and Major Releases, in professional and
workmanlike manner. If the Maintenance and Support Services fail to conform to this warranty
standard, Licensor shall re-perform the affected Maintenance and Support Services.
6.3. Excluded Cases. Licensee has no warranty rights with respect to (i) any defects or non-conformances
that are caused by modifications or misuse of the Product or (ii) any non-reproducible Software nonconformance.
6.4. Exclusive Remedies.
6.4.1. Non-conforming Products. The warranty remedies expressly provided in Section 6.1
(Limited Product Warranty) are Licensee’s sole and exclusive remedies in respect of nonconforming
products and shall be in lieu of any other rights or remedies Licensee may
otherwise have against Licensor with respect to any non-conformance of the Product.
6.4.2. Non-conforming Services. The warranty remedies expressly provided in Section 6.2
(Limited Services Warranty) are Licensee’s sole and exclusive remedies in respect of nonconforming
services and shall be in lieu of any other rights or remedies Licensee may
otherwise have against Licensor with respect to any non-conformance of the Maintenance and
Support Services. Without limiting the generality of the foregoing, Licensee shall have no right
to a refund of the Support Fee for non-conforming Maintenance and Support Services.
6.5. DISCLAIMER OF WARRANTIES.
THESE WARRANTIES ARE LICENSEE’S EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER
WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY
IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS
FOR A PARTICULAR PURPOSE, TITLE, AND ANY WARRANTY OR CONDITION OF NONINFRINGEMENT.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EXPRESS
OR IMPLIED
WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO LICENSEE. IN THAT EVENT,
SUCH WARRANTIES ARE LIMITED IN DURATION TO THE WARRANTY PERIOD. NO WARRANTIES
APPLY AFTER THAT PERIOD. SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS
ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO
LICENSEE.

THESE WARRANTIES GIVE LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY ALSO HAVE
OTHER RIGHTS THAT VARY FROM STATE TO STATE OR JURISDICTION TO JURISDICTION.

THE WARRANTIES IN THIS SECTION 6 (Limited Warranties) ARE PROVIDED SOLELY BY VA.. THE
DISCLAIMERS IN THIS SUBSECTION 6.5 (Disclaimer of Warranties) HOWEVER, ALSO APPLY TO VA’s
SUPPLIERS OF THIRD PARTY CODE. THOSE SUPPLIERS PROVIDE SUCH CODE WITHOUT
WARRANTIES OR CONDITION OF ANY KIND. THIS PARAGRAPH DOES NOT NULLIFY VA’s
WARRANTY OBLIGATIONS UNDER THIS AGREEMENT.

LICENSOR DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT AND MAINTENANCE AND
SUPPORT SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL PROGRAMMING
DEFECTS WILL BE CORRECTED. NOR DOES LICENSOR WARRANT THAT THE FUNCTIONS
CONTAINED IN THE PRODUCT WILL OPERATE IN THE COMBINATION WHICH MAY BE SELECTED FOR
USE BY LICENSEE (INCLUDING, WITHOUT LIMITATION, USE BY LICENSEE WITH THE DATABASE
SYSTEM (AS DEFINED IN SECTION 2.9)), OR WILL MEET LICENSEE’S REQUIREMENTS.

6.6.
LICENSEE COMPLIANCE WITH LAW. LICENSEE REPRESENTS AND WARRANTS TO LICENSOR THAT,
IN RESPECT OF ITS USE OF THE PRODUCT AND DOCUMENTATION, IT SHALL AT ALL TIMES COMPLY
WITH ALL APPLICABLE LAWS, REGULATIONS, REGULATORY REQUIREMENTS AND CODES OF
PRACTICE (INTERNATIONAL, NATIONAL AND LOCAL) INCLUDING, BUT NOT LIMITED TO, THE DATA
PROTECTION ACT 1998 (INCLUDING ANY AMENDMENTS OR REENACTMENTS OF THE SAME, OR ANY
STATUTORY INSTRUMENTS MADE THEREUNDER).

7. INDEMNIFICATION

Licensee agrees to indemnify and hold harmless VA and Licensor (if Licensor is not VA) from any and all
loss, liability, and expense (including reasonable legal fees and court costs) incurred by VA or Licensor (if
Licensor is not VA) as a result of any claim, demand, or action against Licensor based on, related to, or
arising out of the use of the Product by or on behalf of Licensee.

8. LIMITATIONS OF LIABILITY

8.1. The limitations and exclusions in this Section 8 (Limitation of Liability) apply to the full extent they are
not prohibited by applicable law without the possibility of contractual waiver.
8.2. Circumstances may arise where, because of a default on Licensor’s or VA’s part or other liability,
Licensee is entitled to recover damages from Licensor or VA. Regardless of the basis on which
Licensee is entitled to claim damages from VA (including fundamental breach, negligence,
misrepresentation, or other contract or tort claim), VA’s entire liability for all claims in the aggregate
arising from or related to each Product, or Maintenance and Support Service or otherwise arising under
this Agreement will not exceed the amount of any 1) damages for bodily injury (including death) and
damage to real property and tangible personal property and 2) other actual direct damages, up to the
charges (if the Software is subject to fixed term charges, up to twelve months‘ charges) Licensee paid
for the Software or related Maintenance and Support Services that is the subject of the claim.
This limit also applies to any of VA’s, affiliates, Program developers, and suppliers. It is the maximum
for which VA and its affiliates, Software developers, and suppliers are collectively responsible.

8.3 THE LICENSEE AGREES THAT IT SHALL HAVE NO RIGHT TO MAKE A CLAIM AND THE
LICENSOR IS NOT LIABLE TO THE LIECENSEE UNDER OR IN CONNECTION WITH THIS
AGREEMENT, THE PRODUCT OR MAINTENANCE AND SUPPORT SERVICES FOR:
A. ANY COST, EXPENSE, COST, LOSS OR DAMAGES OF ANY INDIRECT OR
CONSEQUENTIAL NATURE;
b. ANY LOSS OF PROFIT, USE, GOODWILL, REVENUE, BUSINESS, PRODUCTION,
OPPORTUNITY OR ANTICIPATED SAVING.

9. CONFIDENTIALITY

In connection with this Agreement, each party may have access to Confidential Information owned or
controlled by the other. All such information acquired by either party shall be and remain the disclosing
party’s exclusive property, and the receiving party shall exercise a standard of care with respect to the
handling and protection of such Confidential Information consistent with its own policies concerning
protection of its own Confidential Information of like importance, and in any case at least reasonable care.
Each party shall obligate its Authorised Users (i) to keep any and all such information confidential, (ii) not to
copy or disclose it to any third party without the disclosing party’s prior written approval, (iii) to use such
information only for the purposes of this Agreement, and (iv) to return all
tangible copies of such Confidential Information to the disclosing party promptly upon request or upon
termination of this Agreement. However, each party may disclose Confidential Information of the other party

pursuant to the order or requirement of a court, administrative agency, or as required by applicable law,
provided that so far as lawful the receiving party has given reasonable notice to the other party to contest
such order or requirement. These obligations shall survive for a period of five (5) years following termination
of this Agreement.

10. MISCELLANEOUS

10.1. Assignment. Licensee may not assign this Agreement in whole or in part, without VA’s prior written
consent. Any attempt to do so is void. VA may assign its rights to payments under this Agreement
without obtaining Licensee’s consent. VA may assign this Agreement to a parent or successor entity
without Licensee’s consent.
10.2. Transfer. Licensee may not transfer this Agreement in whole or in part, without VA’s prior written
consent. Any attempt to do so will see the immediate termination of this agreement. In specific cases,
the Licensor may consider a transfer to the vendor if a dispute cannot be resolved.
10.3. Integration. This Agreement, Licensor’s quotation and order acknowledgement, and any other writing
duly signed by an authorised officer of Licensor, shall constitute the entire Agreement between the
parties, and shall supersede and cancel any prior or contemporaneous understandings,
representations or other agreements. This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof. Without limiting the foregoing, no term or condition in
or referred to in any order or other communication of Licensee shall apply. The parties acknowledge
and agree that in entering into this Agreement they have not relied upon any representation or
statement not contained in this Agreement. However, nothing herein shall operate to exclude liability
for fraudulent misrepresentation.
10.4. This Agreement contains the entire agreement between Licensor and Licensee relating to the licensing
of the Product and supersedes all prior oral or written understanding, arrangements, representations or
agreements between them relating to the subject matter of this Agreement. No amendment, variation or
discharge of this Agreement is valid unless accepted by both parties. Licensor may update the terms of
this Agreement by submitting new licence terms if (i) Licensee orders Additional Authorised Users
pursuant to Section 2.2; (ii) if Maintenance and Support Periods are renewed pursuant to Section 5.3; or
(iii) any Maintenance Release or Major Release is made available pursuant to Part A, Section 2.2 of the
Technical Support Schedule and Licensee shall be obliged to accept such updated terms in the manner
indicated (for example by clicking “I ACCEPT”) before any of (i), (ii), (iii) are implemented.
10.5. Export Control. Licensee agrees to comply with all applicable export and import laws and regulations,
including U.S. embargo and sanctions regulations and prohibitions on export for certain end uses or to
certain users.
Licensee represents and warrants and that Licensee is neither a Prohibited Person nor owned
or controlled by Prohibited Person. “Prohibited Persons” shall mean a person or entity appearing on
the lists published on the Internet website of the U.S. Department of Commerce, Bureau of Industry and
Security, under the section “Lists to Check
(http://www.bis.doc.gov/ComplianceAndEnforcement/ListsToCheck.htm) as amended from time to time,
that is prohibited from acquiring ownership or control of items under this Agreement, or with which
Licensee is prohibited from doing business.
10.6. Force Majeure. Neither Licensee nor VA is responsible for failure to fulfil any obligations due to causes
beyond its control.
10.7. Governing Law and Jurisdiction. The construction, validity and performance of this Agreement will be
governed by and construed in accordance with the laws of relevant Australian states or territories and the parties irrevocably submit
to the exclusive jurisdiction of Australian courts. However, Licensor may enforce any judgment
obtained against Licensee in any jurisdiction. The United Nations Convention on Contracts for the
International Sale of Goods does not apply.
10.8. Notices. All notices given by either party to the other pursuant to this Agreement shall be in writing and
shall be mailed by first class, or recorded delivery mail, postage prepaid, or transmitted by hand
delivery (including delivery by courier), or facsimile transmission, or by electronic mail, to the
respective addresses or fax numbers as designated by the parties on Licensee’s purchase order for the
Product, or as may otherwise be specified by notice from either party to the other in accordance with
this Section 10.7.
10.9. Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining
provisions of this Agreement remain in full force and effect.
10.10.
No Waiver. Neither the waiver by either party of a breach of, or a default under, any of the provisions
of this Agreement, nor the failure of either party to enforce any of the provisions of this Agreement
shall be construed as a waiver of any subsequent breach or default.
10.11. VA as Third Party Beneficiary.
VA, owner and licensor of the Product and the Intellectual Property
Rights therein is a third party beneficiary of this Agreement and shall be entitled to exercise any rights
of VA or Licensor under this Agreement, or to enforce any of Licensee’s obligations set forth in this
Agreement.
10.12. Language of Agreement. This Agreement is prepared and accepted by Licensee in the English
language, and English shall be the authoritative and governing language of this Agreement for all
purposes.
10.13. Third Party Notices & Third Party Software Licences
(a.) The Software may include third party code that Licensor, not the third party, licenses to Licensee under
this Agreement, called Separately Licensed Code. Notices, if any, for the third party code (“Third Party
Notices”) are included for Licensee’s information only. These notices can be found in the applicable notices
file contained on a CD (“Notices File”) provided with the Product.
(b.) Separately Licensed Code is licensed to Licensee under the terms of the applicable third party license
agreement(s) set forth in the Non-VA License section of the Notices File that accompanies the Product.
Notwithstanding any of the terms in this Agreement, or any other agreement Licensee may have with VA, the
terms of such third party license agreement(s) governs Licensee’s use of all Separately Licensed Code
unless otherwise noted in this Agreement. Future Software updates or fixes may contain additional
Separately Licensed Code. Licensee acknowledges that Licensee has read and agrees to the Separately
Licensed Code section of the Notices File. If Licensee does not agree to the terms of these third party license
agreements, Licensee may not use the Separately Licensed Code. Notwithstanding any of the terms in the
third party license agreement, this Agreement, or any other agreement Licensee may have with VA: (i) VA
provides this Separately Licensed Code to LICENSEE WITHOUT WARRANTIES OF ANY KIND; (ii) VA
DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES AND CONDITIONS INCLUDING, BUT NOT
LIMITED TO, THE WARRANTY OF TITLE, NON-INFRINGEMENT OR INTERFERENCE AND THE IMPLIED
WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
WITH RESPECT TO THE SEPARATELY LICENSED CODE; (iii) VA is not liable to Licensee, and will not
defend, indemnify, or hold Licensee harmless for any claims arising from or related to the Separately
Licensed Code; and (iv.) VA is not liable for any direct, indirect, incidental, special, exemplary, punitive or
consequential damages including, but not limited to, lost data, lost savings, and lost profits, with respect to
the Separately Licensed Code. The provisions of this paragraph do not apply to the extent they are held to be
invalid or unenforceable under the law that governs this Agreement.
10.13. Audit. Licensee agrees to create, retain, and provide to Licensor (or IBM) and its auditors accurate
written records, system tool outputs, and other system information sufficient to provide auditable
verification that Licensee’s use of all Products is in compliance with this Agreement, including, without
limitation, all of VA’s applicable licensing and pricing qualification terms. Licensee is responsible for 1)
ensuring that it does not exceed its Authorised Use, and 2) remaining in compliance with this
Agreement.
Upon reasonable notice, VA may verify Licensee’s compliance with this Agreement at all sites and for
all environments in which Licensee uses (for any purpose) Products subject to this Agreement. Such
verification will be conducted in a manner that minimizes disruption to Licensee’s business, and may
be conducted on Licensee’s premises, during normal business hours. VA may use an independent
auditor to assist with such verification, provided VA has a written confidentiality agreement in place
with such auditor.
VA will notify Licensee in writing if any such verification indicates that Licensee has used any Product
in excess of its Authorised Users or is otherwise not in compliance with this Agreement. Licensee
agrees to promptly pay directly to VA the charges that VA specifies in an invoice for 1) any such excess
use, 2) support for such excess use for the lesser of the duration of such excess use or two years, and
3) any additional charges and other liabilities determined as a result of such verification.
10.14 Business Contact Information. Licensee authorises Licensor, VA, an IBM Company and its parent
company International Business Machines Corporation and its subsidiaries (and their successors and
assigns, contractors and IBM Business Partners) to store and use Licensee’s business contact
information wherever they do business, in connection with the VA products and services, or in
furtherance of Licensor’s business relationship with Licensee. The Licensee also authorises IBM
Company or its parent company International Business Machines Corporation or its subsidiaries (and
their successors and assigns, contractors and IBM Business Partners) to contact Licensee directly for
(i) resolving service issues referred to IBM by the Licensor or that that IBM received directly from the
Licensee; and (ii) monitoring the Licensee satisfaction with Licensor’s service. The Licensee
acknowledges that nothing in this section 10.14 impose any responsibility on IBM to perform any part
of the Licensor obligations which are set forth in this Agreement.
10.15 Dispute resolution. Each party will allow the other reasonable opportunity to comply before it claims
that the other has not met its obligations under this Agreement. The parties will attempt in good faith to
resolve all disputes, disagreements, or claims between the parties relating to this Agreement.
10.16 Statute of Limitations. Unless otherwise required by applicable law without the possibility of
contractual waiver or limitation: 1) neither party will bring a legal action, regardless of form, for any
claim arising out of or related to this Agreement more than two years after the cause of action arose;
and 2) upon the expiration of such time limit, any such claim and all respective rights related to the
claim lapse.
10.17 Waiver of Jury. Each party waives any right to a jury trial in any proceeding arising out of or related to
this Agreement.
10.18 Consumer Rights. Nothing in this Agreement affects any statutory rights of consumers that cannot be
waived or limited by contract.

11. LOST LICENCE PERMITS

11.1. LOST LICENCE PERMITS (SOFTWARE)
11.1.1. A Software-based licence permit is a file based key that Licensor uses to control the
execution of Products. The licence is locked to a particular end user computer or network
server. The options are:
Standalone Licence File: The Standalone Licence File is locked to the user’s personal computer.
This Licence file permits a maximum of one licence of one or more
Products to be run.
Network Licence File: The Network Licence File is locked to a network server or any personal
computer connected in the network. This Licence file manages multiple
licences of one or more Products on a network.
11.1.2. A software-based licence is a computer software file and cannot be lost as Licensor or VA
can resend it. However a software-based licence permit is locked to a particular personal
computer or network server. If that computer is lost or destroyed customer can apply for a
replacement licence locked to a new computer / network server. The supply of replacement
licences is at the discretion of Licensor. You may be asked to provide Licensor with affidavits
and/or other documents in support of a claim for a replacement licence.
11.1.3. Software-based licences can be moved to a new computer / network server within the rules
and process supported by Licensor at that time. The original computer / network server must
be available so that a revocation process and certificate can be created before the licence(s)
can be moved. If it is not possible to carry out this process it will be treated as a lost or
destroyed computer as in Section 11.1.2

Technical Support Schedule

A. MAINTENANCE AND SUPPORT SERVICES
The provisions in this Section A apply in respect of all Maintenance and Support Services, whosoever such
Maintenance and Support Services are provided by.

1. Support Hours
The Maintenance and Support Services shall be provided during Licensor’s normal support hours.
Maintenance and Support Services provided by Licensor shall be provided during Licensor’s normal support
hours which are 8.30 am to 5:30 pm unless otherwise advised in a Support Proposal.

2. Maintenance and Support Services
2.1. Help Desk Support. Licensor shall provide Licensee with a reasonable amount (as determined by
Licensor) of support by telephone and email to assist Licensee with basic troubleshooting and with
understanding the features of the Software and its usage. Help Desk Support for a product version is
subject to Licensor’s then-current published policy.
2.2. Maintenance Releases and Major Releases. Licensor will provide those Maintenance Releases and
Major Releases as upgrades to Licensee that Licensor, at its sole discretion, makes generally available
to all of Licensor’s customers that are then receiving Maintenance and Support Services for such
Product. Licensor reserves the right not to create any Maintenance Releases and Major Releases.
Licensee may use the updated Product provided to Licensee through Maintenance Releases and Major
Releases only in accordance with Section 2 (Grant of Licence and Restrictions) and subject to the other
terms and conditions of this Agreement. Licensee acknowledges that a Maintenance Release or Major
Release as issued by Licensor is supported on a defined set of operating systems as described in the
Documentation for that release, and that Licensee may have to update Licensee’s operating system in
order to use such Maintenance Release or Major Release.
2.3. Error Correction. Licensor shall provide a product patch, workaround, correction in a subsequent
Maintenance Release, or other correctional aids (any of the foregoing, a “Correction”) provided that
Licensor is able to successfully reproduce the suspected error.
2.4. Exclusions. Licensor shall have no obligation to provide Maintenance and Support Services with
respect to (i) errors caused by a use of the Product other than in strict accordance with the
Documentation (ii) Software operating in any environment other than as specified in the Documentation
(iii) any third party products including operating system and database system. Any advice,
recommendation or other services provided by Licensor to Licensee in respect of any third party
products in the course of providing Maintenance and Support Services or otherwise in connection with
Maintenance and Support Services are provided at Licensor’s absolute discretion and Licensee
acknowledges that any such services are provided ‘as is’, in good faith and without charge to Licensee.
Accordingly, Licensor shall not be liable to Licensee, in contract, in tort, or otherwise, for any loss or
damage whatsoever arising whether directly or indirectly in respect of any such services and
Licensee’s reliance on any such services and any actions taken in connection therewith shall be solely
at its own discretion and risk.
2.5. End of Life. In the event Licensor decides to terminate provision of Maintenance and Support Services
for a Product, Licensor will provide prior notice on Licensor’s website.
3. Fault Reporting
3.1. Error reports must be submitted by telephone, fax or by email to the addresses designated by Licensor
for such reports from time to time.
3.2. In reporting an error, Licensee shall supply the following information:
3.2.1. Licensee name, contact name and Licence Permit number;
3.2.2. details of the relevant Software version number and operating system environment;
3.2.3. date, time and description of the error;
3.2.4. all available details necessary for Licensor to replicate the error;
3.2.5. the severity level which Licensee believes is appropriate to the error, and such further
information
as Licensor may request in order to assign a level to it in accordance with clause 2.1 below
(Target Response Times);
3.2.6. such further information as Licensor may reasonably require.
B. MAINTENANCE AND SUPPORT SERVICES PROVIDED BY VA ONLY
The provisions in this Section B apply in respect of Maintenance and Support Services only where such
Maintenance and Support Services are provided by VA.
1. Severity Levels
The level to be allocated to an error is intended to reflect the disruption that it causes to Licensee’s business.
The levels are as follows:
Critical Error:
a major error that prevents end users from using the Software and for which there is no evident
alternative operating procedure.
Material Error:
a significant error that causes the Software not to operate in accordance with the Documentation
but for which there is an alternative operating procedure.
Cosmetic Error:
a minor error that does not prevent the Software operating in accordance with the Documentation
but causes inconvenience to Licensee.
2. Target Response Times
2.1. The “Target Response Time” is the time, following receipt of Licensee’s request and the information
referred to above, by which VA will contact Licensee to discuss the details of the error and assign a
level to the error. If Licensee notifies VA that it disagrees with the level assigned by the helpdesk then
as soon as reasonably practicable VA will procure that VA’s Product Services Support Manager
contacts Licensee. If agreement on the appropriate level is still not reached, the matter will be escalated
in similar fashion to VA’s Board of Directors, whose decision (in the absence of agreement after further
discussion) will be final and binding.
2.2. VA’s Target Response Time for errors is twenty-four (24) hours from Licensee’s notification of an
error being received by VA (save that a request for assistance received overnight or on a weekend or
Public Holiday in England shall be considered received at 09:00 on the next working day).
2.3. VA will use reasonable efforts to achieve the Target Response Time for each error but provided it
uses reasonable efforts VA will not be in breach of this Agreement or otherwise liable to Licensee for
failure to achieve such Target Response Time.
3. Target Closure Times
3.1. Upon receipt of notification of a Critical Error, VA shall:
3.1.1. supply a written response, supplementary documentation, or work-around instructions to
alleviate or bypass the Critical Error to Licensee within forty-eight (48) hours of notification of the
Critical Error; and
3.1.2. provide a Correction to the Critical Error within two (2) weeks from the date of notification of
the Critical Error.
3.2. Upon receipt of notification of a Material Error, VA shall;
3.2.1. supply a written response, supplementary documentation, or workaround instructions to
alleviate or bypass the Material Error to Licensee within five (5) working days of notification of the
Material Error; and
3.2.2. provide a Correction to the Material Error within eight (8) weeks from the date of notification
of the Material Error.
3.3. Upon receipt of notification of a Cosmetic Error, VA shall provide a Correction to the Cosmetic
Error to the Licensee in a subsequent release, at the discretion of VA.
3.4. VA will use reasonable efforts to achieve the target times referred to above for each error but
provided it uses reasonable efforts VA will not be in breach of this Agreement or otherwise liable to
Licensee for failure to achieve any such target time.
4. Closure
4.1. Errors will be closed in one of the following ways:
4.1.1. Fixed: VA has rectified the error so that all materially adverse effects of the error on
Licensee’s business have ceased.
4.1.2. Fixed at release: VA will investigate the error on the then-current version, and if the problem
is fixed in the current version, the call will be closed. Licensee’s solution is to install the latest
version
4.1.3. Non-replicable error: no solution could be supplied because VA was unable to replicate
the error.
4.1.4. Expected behaviour: the error was alleged by Licensee to show an error but is consistent
with the Product performing in all material respects with the Documentation (i.e. there is no error).
4.1.5. Client closure: Licensee has agreed to allocate a closure category to the error.
4.1.6. Will not reasonably be fixed: VA has assessed the error and it will not be fixed either
because a) this functionality will be replaced or changed in a subsequent release, or b) the cost to
VA of providing a fix is disproportionate to the level of demand from the user community and/or
the value of the Support Fee.
4.1.7. Upon closure of an error in accordance with clause 4.1 above, VA shall have no further
obligation in respect of that particular error.

Part 1: General Terms


BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, CLICKING ON AN ″ACCEPT″ BUTTON, OR OTHERWISE USING THE PROGRAM, LICENSEE AGREES TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF LICENSEE, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND LICENSEE TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, CLICK ON AN ″ACCEPT″ BUTTON, OR USE THE PROGRAM; AND PROMPTLY RETURN THE UNUSED MEDIA AND DOCUMENTATION TO THE PARTY FROM WHOM IT WAS OBTAINED. IF THE PROGRAM WAS DOWNLOADED, DESTROY ALL COPIES OF THE PROGRAM.


  1. Definitions

 

1.1 Authorized Use: The specified level at which Licensee is authorized to execute or run the Program. That level may be measured by number of users, millions of service units (″MSUs″), Processor Value Units (″PVUs″), or other level of use specified by Visual Analysis[ID1] . 


1.2 Licence Information (″LI″): A document that provides information and any additional terms specific to a Program. The Program’s LI can be found in the Program’s directory, by the use of a system command, or as a booklet included with the Program. 


1.3 Program: The following, including the original and all whole or partial copies: 1) machine-readable instructions and data, 2) components, files, and modules, 3) audio-visual content (such as images, text, recordings, or pictures), and 4) related licensed materials (such as keys and documentation). 


1.4 VA-AIC: Means VA [ID2] Applied Intelligence Capability solution. 


1.5 Visual Analysis Pty Ltd:  A company incorporated in Australia with the ABN of 24075960075, doing business as VA Worldwide whose registered office is situated at Level 3, 59 Wentworth Ave. Kingston, ACT Australia 2604.

 

2. Agreement Structure


This Agreement includes the Part 1 – General Terms, Part 2 – Country-unique Terms (if any) and the LI and is the complete agreement between Licensee and VA regarding the use of the Program. It replaces any prior oral or written communications between Licensee and VA concerning Licensee’s use of the Program. The terms of Part 2 may replace or modify those of Part 1. To the extent of any conflict, the LI prevails over both Parts. 




3. License Grant 

3.1 The Program is owned by VA, and is copyrighted and licensed, not sold. 

3.2 VA grants Licensee a limited, nonexclusive, non-transferable license to:

  1. download, install, and use the Program during the evaluation period up to the Authorized Use specified in the LI solely for internal evaluation, testing, or demonstration purposes on a trial basis 
  2. make and install a reasonable number of copies to support such Authorized Use, and 
  3. make a backup copy, all provided that:

i. Licensee has lawfully obtained the Program and complies with the terms of this Agreement;

ii. the backup copy does not execute unless the backed-up Program cannot execute;

iii. Licensee reproduces all copyright notices and other legends of ownership on each copy, or partial copy, of the Program;

iv. Licensee maintains a record of all copies of the Program and ensures that anyone who uses the Program (accessed either locally or remotely) 

v. does so only on Licensee’s behalf and 

vi. complies with the terms of this Agreement;

vii. Licensee does not use the Program for productive purposes or otherwise use, copy, modify, or distribute the Program except as expressly permitted in this Agreement 

viii. reverse assemble, reverse compile, otherwise translate, or reverse engineer the   Program, except as expressly permitted by law without the possibility of contractual waiver 

ix. use any of the Program’s components, files, modules, audio-visual content, or related licensed materials separately from that Program 

x. sublicense, rent, or lease the Program; or 

xi. use the Program for commercial application hosting;

3.3 If Licensee obtains this Program as a Supporting Program, Licensee uses this Program only to support the Principal Program and subject to any limitations in the license to the Principal Program, or, if Licensee obtains this Program as a Principal Program, Licensee uses all Supporting Programs only to support this Program, and subject to any limitations in this Agreement. For purposes of this Subsection 3.3, a ″Supporting Program″ is a Program that is part of another VA Program (″Principal Program″) and identified as a Supporting Program in the Principal Program’s LI. (To obtain a separate license to a Supporting Program without these restrictions, Licensee should contact the party from whom Licensee obtained the Supporting Program.) This license applies to each copy of the Program that Licensee makes.

 



4. Updates, Fixes, and Patches 

4.1 When Licensee receives an update, fix, or patch to a Program, Licensee accepts any additional or different terms that are applicable to such update, fix, or patch that are specified in its LI. If no additional or different terms are provided, then the update, fix, or patch is subject solely to this Agreement. If the Program is replaced by an update, Licensee agrees to promptly discontinue use of the replaced Program.

 

5. Term and Termination 

5.1 The evaluation period begins on the date Licensee agrees to the terms of this Agreement and ends upon the earliest of: 

a. the end of the duration or the date specified by VA in either the License Information or a transaction document or 

b.  the date on which the Program automatically disables itself. Licensee will destroy the Program and all copies made of it within ten days of the end of the evaluation period. 

5.2 If VA specifies in the LI that Licensee may retain the Program, and Licensee elects to do so, then the Program will be subject to a different license agreement, which VA will provide to Licensee. In addition, a charge may apply. 

5.3 VA may terminate Licensee’s license if Licensee fails to comply with the terms of this Agreement. If the license is terminated for any reason by either party, Licensee agrees to promptly discontinue use of and destroy all of Licensee’s copies of the Program. 

5.4 Any terms of this Agreement that by their nature extend beyond termination of this Agreement remain in effect until fulfilled and apply to both parties’ respective successors and assignees. 


THE PROGRAM MAY CONTAIN A DISABLING DEVICE THAT WILL PREVENT IT FROM BEING USED AFTER THE EVALUATION PERIOD ENDS. LICENSEE AGREES NOT TO TAMPER WITH THE DISABLING DEVICE OR THE PROGRAM. LICENSEE SHOULD TAKE PRECAUTIONS TO AVOID ANY LOSS OF DATA THAT MIGHT RESULT WHEN THE PROGRAM CAN NO LONGER BE USED.

 

6. Charges

 There is no charge for the use of the Program for the duration of the evaluation period.

 

7. Warranties 

SUBJECT TO ANY STATUTORY WARRANTIES THAT CANNOT BE EXCLUDED, VA MAKES NO WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, REGARDING THE PROGRAM OR SUPPORT, IF ANY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE, AND ANY WARRANTY OR CONDITION OF NON-INFRINGEMENT. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO LICENSEE. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED IN DURATION TO THE MINIMUM PERIOD REQUIRED BY LAW. NO WARRANTIES APPLY AFTER THAT PERIOD. SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE. LICENSEE MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE OR JURISDICTION TO JURISDICTION. THE DISCLAIMERS AND EXCLUSIONS IN THIS SECTION 5 ALSO APPLY TO ANY OF VA’S PROGRAM DEVELOPERS. MANUFACTURERS, SUPPLIERS, OR PUBLISHERS OF NON-VA PROGRAMS MAY PROVIDE THEIR OWN WARRANTIES. VA DOES NOT PROVIDE SUPPORT OF ANY KIND, UNLESS VA SPECIFIES OTHERWISE. IN SUCH EVENT, ANY SUPPORT PROVIDED BY VA IS SUBJECT TO THE DISCLAIMERS AND EXCLUSIONS IN THIS SECTION. 


8. Licensee Data and Databases 


8.1 To assist Licensee in isolating the cause of a problem with the Program, VA may request that Licensee: 

a. allow VA to remotely access Licensee’s system or 

b. send Licensee information or system data to VA. However, VA is not obligated to provide such assistance unless VA and Licensee enter a separate written agreement under which VA agrees to provide to Licensee that type of support, which is beyond VA’s obligations in this Agreement. 

8.2 In any event, VA uses information about errors and problems to improve its products and services, and assist with its provision of related support offerings. For these purposes, VA may use VA entities and Licensee authorizes VA to do so. Licensee remains responsible for: 

a. any data and the content of any database Licensee makes available to VA,

b.  the selection and implementation of procedures and controls regarding access, security, encryption, use, and transmission of data (including any personally-identifiable data), and 

c.  backup and recovery of any database and any stored data. 

8.3 Licensee will not send or provide VA access to any personally-identifiable information, whether in data or any other form, and will be responsible for reasonable costs and other amounts that VA may incur relating to any such information mistakenly provided to VA or the loss or disclosure of such information by VA, including those arising out of any third party claims. 


9. Limitation of Liability 


9.1 The limitations and exclusions in this Section (Limitation of Liability) apply to the full extent they are not prohibited by applicable law without the possibility of contractual waiver. 

  1. Items for Which VA May Be Liable Circumstances may arise where, because of a default on VA’s part or other liability, Licensee is entitled to recover damages from VA. Regardless of the basis on which Licensee is entitled to claim damages from VA (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), VA’s entire liability for all claims in the aggregate arising from or related to each Program or otherwise arising under this Agreement will not exceed the amount of any: 
    1. damages for bodily injury (including death) and damage to real property and tangible personal property and 
    2. other actual direct damages up to AUD $10,000 (or equivalent in local currency). This limit also applies to any of VA’s Program developers and suppliers. It is the maximum for which VA and its Program developers and suppliers are collectively responsible. 
  2. Items for Which VA Is Not Liable UNDER NO CIRCUMSTANCES IS VA, ITS PROGRAM DEVELOPERS LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY: a. LOSS OF, OR DAMAGE TO, DATA; b. SPECIAL, INCIDENTAL, EXEMPLARY, OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; OR c. LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS. 


10. Compliance Verification 


10.1 For purposes of this Section 10 (Compliance Verification), ″Evaluation Program Terms″ means: 

  1.  this Agreement and applicable amendments and transaction documents provided by VA, and 
  2. VA software policies that may be found at the VA website (www.va-worldwide.com[ID3] ), including but not limited to those policies concerning backup, sub-capacity pricing, and migration. 

10.2 The rights and obligations set forth in this Section 10 remain in effect during the period the Program is licensed to Licensee, and for two years thereafter. 


11. Verification Process 


11.1 Licensee agrees to create, retain, and provide to VA and its auditors accurate written records, system tool outputs, and other system information sufficient to provide auditable verification that Licensee’s use of all Programs is in compliance with the Evaluation Program Terms, including, without limitation, all of VA’s applicable licensing and pricing qualification terms.

11.2  Licensee is responsible for:  

a. ensuring that it does not exceed its Authorized Use, and 

b. remaining in compliance with Evaluation Program Terms. 

11.3 Upon reasonable notice, VA may verify Licensee’s compliance with Evaluation Program Terms at all sites and for all environments in which Licensee uses (for any purpose) Programs subject to Evaluation Program Terms. Such verification will be conducted in a manner that minimizes disruption to Licensee’s business, and may be conducted on Licensee’s premises, during normal business hours. VA may use an independent auditor to assist with such verification, provided VA has a written confidentiality agreement in place with such auditor.


12. Resolution 


12.1 VA will notify Licensee in writing if any such verification indicates that Licensee has used any Program in excess of its Authorized Use or is otherwise not in compliance with the Evaluation Program Terms. 

12.2 Licensee agrees to promptly pay directly to VA the charges that VA specifies in an invoice for:

a. any such excess use, 

b. support for such excess use for the lesser of the duration of such excess use or two years, and 

c. any additional charges and other liabilities determined as a result of such verification.


13. Third Party Notices 


13.1 The Program may include third party code that VA, not the third party, licenses to Licensee under this Agreement. Notices, if any, for the third party code (″Third Party Notices″) are included for Licensee’s information only. These notices can be found in the Program’s NOTICES file(s). 

13.2 Information on how to obtain source code for certain third party code can be found in the Third Party Notices. If in the Third Party Notices VA identifies third party code as ″Modifiable Third Party Code,″ VA authorizes Licensee to: 

  1.  modify the Modifiable Third Party Code and
  2.  reverse engineer the Program modules that directly interface with the Modifiable Third Party Code provided that it is only for the purpose of debugging Licensee’s modifications to such third party code. VA’s service and support obligations, if any, apply only to the unmodified Program. 


14. General 

14.1 Nothing in this Agreement affects any statutory rights of consumers that cannot be waived or limited by contract. 

14.2 If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement remain in full force and effect. 

14.3 Licensee is prohibited from exporting the Program. 

14.4 Licensee authorizes Visual Analysis Pty Ltd to store and use Licensee’s business contact information wherever they do business, in connection with VA products and services, or in furtherance of VA’s business relationship with Licensee. 

14.5 Each party will allow the other reasonable opportunity to comply before it claims that the other has not met its obligations under this Agreement. The parties will attempt in good faith to resolve all disputes, disagreements, or claims between the parties relating to this Agreement. 

14.6 Unless otherwise required by applicable law without the possibility of contractual waiver or limitation: 

  1. Neither party will bring a legal action, regardless of form, for any claim arising out of or related to this Agreement more than two years after the cause of action arose; and 
  2. upon the expiration of such time limit, any such claim and all respective rights related to the claim lapse. 

14.7 Neither Licensee nor VA is responsible for failure to fulfil any obligations due to causes    beyond its control

14.8 No right or cause of action for any third party is created by this Agreement, nor is VA responsible for any third party claims against Licensee, except as permitted in Subsection (Items for Which VA May Be Liable) above for bodily injury (including death) or damage to real or tangible personal property for which VA is legally liable to that third party. 

a. In entering into this Agreement, neither party is relying on any representation not specified in this Agreement, including but not limited to any representation concerning: a. The performance or function of the Program, other than as expressly warranted in Section (No Warranties) above; 

b. the experiences or recommendations of other parties; or any results or savings that Licensee may achieve. 

c. The license and intellectual property indemnification terms of Licensee’s other agreements with VA (such as the VA Software Licencing Agreement) do not apply to Program licenses granted under this Agreement. 


15. Governing Law and Jurisdiction


15.1 Both parties agree to the application of the laws of the country in which Licensee obtained the Program license to govern, interpret, and enforce all of Licensee’s and VA’s respective rights, duties, and obligations arising from, or relating in any manner to, the subject matter of this Agreement, without regard to conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply. 

15.2 All rights, duties, and obligations are subject to the courts of the country in which Licensee obtained the Program license. 


Part 2 – Country-unique Terms 


For licenses granted in the countries specified below, the following terms replace or modify the referenced terms in Part 1. All terms in Part 1 that are not changed by these amendments remain unchanged and in effect. This Part 2 is organized as follows:  Multiple country amendments to Part 1, Section 15 (Governing Law and Jurisdiction);  Americas country amendments to other Agreement terms;  Asia Pacific country amendments to other Agreement terms; and  Europe, Middle East, and Africa country amendments to other Agreement terms. 


Multiple country amendments to Part 1, Section 15 (Governing Law and Jurisdiction) Governing Law 

The phrase ″the laws of the country in which Licensee obtained the Program license″ in the first paragraph of 15.1 Governing Law is replaced by the following phrases in the countries below: AMERICAS (1) In Canada: the laws in the Province of Ontario; (2) in Mexico: the federal laws of the Republic of Mexico; (3) in the United States, Anguilla, Antigua/Barbuda, Aruba, British Virgin Islands, Cayman Islands, Dominica, Grenada, Guyana, Saint Kitts and Nevis, Saint Lucia, Saint Maarten, and Saint Vincent and the Grenadines: the laws of the State of New York, United States; (4) in Venezuela: the laws of the Bolivarian Republic of Venezuela; ASIA PACIFIC (5) in Cambodia and Laos: the laws of the State of New York, United States; (6) in Australia: the laws of the State or Territory in which the transaction is performed; (7) in Hong Kong SAR and Macau SAR: the laws of Hong Kong Special Administrative Region (″SAR″); (8) in Taiwan: the laws of Taiwan; EUROPE, MIDDLE EAST, AND AFRICA (9) in Albania, Armenia, Azerbaijan, Belarus, Bosnia-Herzegovina, Bulgaria, Croatia, Former Yugoslav Republic of Macedonia, Georgia, Hungary, Kazakhstan, Kyrgyzstan, Moldova, Montenegro, Poland, Romania, Russia, Serbia, Slovakia, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan: the laws of Austria; (10) in Algeria, Andorra, Benin, Burkina Faso, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Congo Republic, Djibouti, Democratic Republic of Congo, Equatorial Guinea, French Guiana, French Polynesia, Gabon, Gambia, Guinea, Guinea-Bissau, Ivory Coast, Lebanon, Madagascar, Mali, Mauritania, Mauritius, Mayotte, Morocco, New Caledonia, Niger, Reunion, Senegal, Seychelles, Togo, Tunisia, Vanuatu, and Wallis and Futuna: the laws of France; (11) in Estonia, Latvia, and Lithuania: the laws of Finland; (12) in Angola, Bahrain, Botswana, Burundi, Egypt, Eritrea, Ethiopia, Ghana, Jordan, Kenya, Kuwait, Liberia, Malawi, Malta, Mozambique, Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome and Principe, Saudi Arabia, Sierra Leone, Somalia, Tanzania, Uganda, United Arab Emirates, the United Kingdom, West Bank/Gaza, Yemen, Zambia, and Zimbabwe: the laws of England; and (13) in South Africa, Namibia, Lesotho, and Swaziland: the laws of the Republic of South Africa. 

15.2 Jurisdiction 

The following paragraph pertains to jurisdiction and replaces Subsection 15.2 (Jurisdiction) as it applies for those countries identified below: All rights, duties, and obligations are subject to the courts of the country in which Licensee obtained the Program license except that in the countries identified below all disputes arising out of or related to this Agreement, including summary proceedings, will be brought before and subject to the exclusive jurisdiction of the following courts of competent jurisdiction: AMERICAS (1) In Argentina: the Ordinary Commercial Court of the city of Buenos Aires; (2) in Brazil: the court of Rio de Janeiro, RJ; (3) in Chile: the Civil Courts of Justice of Santiago; (4) in Ecuador: the civil judges of Quito for executory or summary proceedings (as applicable); (5) in Mexico: the courts located in Mexico City, Federal District; (6) in Peru: the judges and tribunals of the judicial district of Lima, Cercado; (7) in Uruguay: the courts of the city of Montevideo; (8) in Venezuela: the courts of the metropolitan area of the city of Caracas; EUROPE, MIDDLE EAST, AND AFRICA (9) in Austria: the court of law in Vienna, Austria (Inner-City); (10) in Algeria, Andorra, Benin, Burkina Faso, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Congo Republic, Djibouti, Democratic Republic of Congo, Equatorial Guinea, France, French Guiana, French Polynesia, Gabon, Gambia, Guinea, Guinea-Bissau, Ivory Coast, Lebanon, Madagascar, Mali, Mauritania, Mauritius, Mayotte, Monaco, Morocco, New Caledonia, Niger, Reunion, Senegal, Seychelles, Togo, Tunisia, Vanuatu, and Wallis and Futuna: the Commercial Court of Paris; (11) in Angola, Bahrain, Botswana, Burundi, Egypt, Eritrea, Ethiopia, Ghana, Jordan, Kenya, Kuwait, Liberia, Malawi, Malta, Mozambique, Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome and Principe, Saudi Arabia, Sierra Leone, Somalia, Tanzania, Uganda, United Arab Emirates, the United Kingdom, West Bank/Gaza, Yemen, Zambia, and Zimbabwe: the English courts; (12) in South Africa, Namibia, Lesotho, and Swaziland: the High Court in Johannesburg; (13) in Greece: the competent court of Athens; (14) in Israel: the courts of Tel Aviv-Jaffa; (15) in Italy: the courts of Milan;(16) in Portugal: the courts of Lisbon; (17) in Spain: the courts of Madrid; and (18) in Turkey: the Istanbul Central Courts and Execution Directorates of Istanbul, the Republic of Turkey. 

15.3 Arbitration 

The following paragraph is added as a new Subsection 15.3 (Arbitration) as it applies for those countries identified below. The provisions of this Subsection 15.3 prevail over those of Subsection 15.2 (Jurisdiction) to the extent permitted by the applicable governing law and rules of procedure: ASIA PACIFIC (1) In Cambodia, India, Laos, Philippines, and Vietnam: Disputes arising out of or in connection with this Agreement will be finally settled by arbitration which will be held in Singapore in accordance with the Arbitration Rules of Singapore International Arbitration Center (″SIAC Rules″) then in effect. The arbitration award will be final and binding for the parties without appeal and will be in writing and set forth the findings of fact and the conclusions of law. The number of arbitrators will be three, with each side to the dispute being entitled to appoint one arbitrator. The two arbitrators appointed by the parties will appoint a third arbitrator who will act as chairman of the proceedings. Vacancies in the post of chairman will be filled by the president of the SIAC. Other vacancies will be filled by the respective nominating party. Proceedings will continue from the stage they were at when the vacancy occurred. If one of the parties refuses or otherwise fails to appoint an arbitrator within 30 days of the date the other party appoints its, the first appointed arbitrator will be the sole arbitrator, provided that the arbitrator was validly and properly appointed. All proceedings will be conducted, including all documents presented in such proceedings, in the English language. The English language version of this Agreement prevails over any other language version. (2) In the People’s Republic of China: In case no settlement can be reached, the disputes will be submitted to China International Economic and Trade Arbitration Commission for arbitration according to the then effective rules of the said Arbitration Commission. The arbitration will take place in Beijing and be conducted in Chinese. The arbitration award will be final and binding on both parties. During the course of arbitration, this agreement will continue to be performed except for the part which the parties are disputing and which is undergoing arbitration. (3) In Indonesia: Each party will allow the other reasonable opportunity to comply before it claims that the other has not met its obligations under this Agreement. The parties will attempt in good faith to resolve all disputes, disagreements, or claims between the parties relating to this Agreement. Unless otherwise required by applicable law without the possibility of contractual waiver or limitation, i) neither party will bring a legal action, regardless of form, arising out of or related to this Agreement or any transaction under it more than two years after the cause of action arose; and ii) after such time limit, any legal action arising out of this Agreement or any transaction under it and all respective rights related to any such action lapse. Disputes arising out of or in connection with this Agreement shall be finally settled by arbitration that shall be held in Jakarta, Indonesia in accordance with the rules of Board of the Indonesian National Board of Arbitration (Badan Arbitrase Nasional Indonesia or ″BANI″) then in effect. The arbitration award shall be final and binding for the parties without appeal and shall be in writing and set forth the findings of fact and the conclusions of law. The number of arbitrators shall be three, with each side to the dispute being entitled to appoint one arbitrator. The two arbitrators appointed by the parties shall appoint a third arbitrator who shall act as chairman of the proceedings. Vacancies in the post of chairman shall be filled by the chairman of the BANI. Other vacancies shall be filled by the respective nominating party. Proceedings shall continue from the stage they were at when the vacancy occurred. If one of the parties refuses or otherwise fails to appoint an arbitrator within 30 days of the date the other party appoints its, the first appointed arbitrator shall be the sole arbitrator, provided that the arbitrator was validly and properly appointed. All proceedings shall be conducted, including all documents presented in such proceedings, in the English and/or Indonesian language. EUROPE, MIDDLE EAST, AND AFRICA (4) In Albania, Armenia, Azerbaijan, Belarus, Bosnia-Herzegovina, Bulgaria, Croatia, Former Yugoslav Republic of Macedonia, Georgia, Hungary, Kazakhstan, Kyrgyzstan, Moldova, Montenegro, Poland, Romania, Russia, Serbia, Slovakia, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan: All disputes arising out of this Agreement or related to its violation, termination or nullity will be finally settled under the Rules of Arbitration and Conciliation of the International Arbitral Center of the Federal Economic Chamber in Vienna (Vienna Rules) by three arbitrators appointed in accordance with these rules. The arbitration will be held in Vienna, Austria, and the official language of the proceedings will be English. The decision of the arbitrators will be final and binding upon both parties. Therefore, pursuant to paragraph 598 (2) of the Austrian Code of Civil Procedure, the parties expressly waive the application of paragraph 595 (1) figure 7 of the Code. VA may, however, institute proceedings in a competent court in the country of installation. (5) In Estonia, Latvia, and Lithuania: All disputes arising in connection with this Agreement will be finally settled in arbitration that will be held in Helsinki, Finland in accordance with the arbitration laws of Finland then in effect. Each party will appoint one arbitrator. The arbitrators will then jointly appoint the chairman. If arbitrators cannot agree on the chairman, then the Central Chamber of Commerce in Helsinki will appoint the chairman. 


AMERICAS COUNTRY AMENDMENTS CANADA 

14. General, The following replaces Item 14.8: No right or cause of action for any third party is created by this Agreement or any transaction under it, nor is VA responsible for any third party claims against Licensee except as permitted by the Limitation of Liability section above for bodily injury (including death) or physical harm to real or tangible personal property caused by VA’s negligence for which VA is legally liable to that third party. 


The following is added as Item 14.9. For purposes of this Item 14.9, ″Personal Data″ refers to information relating to an identified or identifiable individual made available by one of the parties, its personnel or any other individual to the other in connection with this Agreement. The following provisions apply in the event that one party makes Personal Data available to the other: (1) General (a) Each party is responsible for complying with any obligations applying to it under applicable Canadian data privacy laws and regulations (″Laws″). (b) Neither party will request Personal Data beyond what is necessary to fulfil the purpose(s) for which it is requested. The purpose(s) for requesting Personal Data must be reasonable. Each party will agree in advance as to the type of Personal Data that is required to be made available. (2) Security Safeguards (a) Each party acknowledges that it is solely responsible for determining and communicating to the other the appropriate technological, physical and organizational security measures required to protect Personal Data. (b) Each party will ensure that Personal Data is protected in accordance with the security safeguards communicated and agreed to by the other. (c) Each party will ensure that any third party to whom Personal Data is transferred is bound by the applicable terms of this section. (d) Additional or different services required to comply with the Laws will be deemed a request for new services. (3) Use Each party agrees that Personal Data will only be used, accessed, managed, transferred, disclosed to third parties or otherwise processed to fulfil the purpose(s) for which it was made available. (4) Access Requests (a) Each party agrees to reasonably cooperate with the other in connection with requests to access or amend Personal Data. (b) Each party agrees to reimburse the other for any reasonable charges incurred in providing each other assistance. (c) Each party agrees to amend Personal Data only upon receiving instructions to do so from the other party or its personnel. (5) Retention Each party will promptly return to the other or destroy all Personal Data that is no longer necessary to fulfil the purpose(s) for which it was made available, unless otherwise instructed by the other or its personnel or required by law. (6) Public Bodies Who Are Subject to Public Sector Privacy Legislation For Licensees who are public bodies subject to public sector privacy legislation, this Item 14.9 applies only to Personal Data made available to Licensee in connection with this Agreement, and the obligations in this section apply only to Licensee, except that: 1) section (2)(a) applies only to VA; 2) sections (1)(a) and (4)(a) apply to both parties; and 3) section (4)(b) and the last sentence in (1)(b) do not apply. 


PERU 

The following is added to Item 14.10: Each party waives any right to a jury trial in any proceeding arising out of or related to this Agreement. 


ASIA PACIFIC COUNTRY AMENDMENTS AUSTRALIA

9. Limitation of Liability The following is added to the end of this Section 9 (Limitation of Liability): Except as expressly required by law without the possibility of contractual waiver, Licensee and VA intend that the limitation of liability in this Limitation of Liability section applies to damages caused by all types of claims and causes of action. If any limitation on or exclusion from liability in this section is held by a court of competent jurisdiction to be unenforceable with respect to a particular claim or cause of action, the parties intend that it nonetheless apply to the maximum extent permitted by applicable law to all other claims and causes of action. 9.1 Items for Which VA May Be Liable The following is added to the end of this Subsection 9.1: In accordance with Article 1328 of the Peruvian Civil Code, the limitations and exclusions specified in this section will not apply to damages caused by VA’s wilful misconduct (″dolo″) or gross negligence (″culpa inexcusable″). 


UNITED STATES OF AMERICA 9.1 Items for Which VA May Be Liable 

The following replaces Item 1 in the first paragraph of this Subsection 9.1 (Items for Which VA May Be Liable): 1) damages for bodily injury (including death) and physical harm to real property and tangible personal property caused by VA’s negligence.5. Warranties 

The following is added to the first paragraph of Section 5 (Warranties): Although VA specifies that there are no warranties, Licensee may have certain rights under the Competition and Consumer Act 2010 or other legislation and are only limited to the extent permitted by the applicable legislation. 


HONG KONG SAR, MACAU SAR, AND TAIWAN 

As applies to licenses obtained in Taiwan and the special administrative regions, phrases throughout this Agreement containing the word ″country″ (for example, ″the country in which the original Licensee was granted the license″ and ″the country in which Licensee obtained the Program license″) are replaced with the following: (1) In Hong Kong SAR: ″Hong Kong SAR″ (2) In Macau SAR: ″Macau SAR″ except in the Governing Law clause (Section 15.1) (3) In Taiwan: ″Taiwan.″ 


INDIA 9.1 Items for Which VA May Be Liable The following replaces the terms of Items 1 and 2 of the first paragraph: 1) liability for bodily injury (including death) or damage to real property and tangible personal property will be limited to that caused by VA’s negligence; and 2) as to any other actual damage arising in any situation involving non-performance by VA pursuant to, or in any way related to the subject of this Agreement, VA’s liability will be limited to the charge paid by Licensee for the individual Program that is the subject of the claim. 14. General The following replaces the terms of Item 14.8 If no suit or other legal action is brought, within three years after the cause of action arose, in respect of any claim that either party may have against the other, the rights of the concerned party in respect of such claim will be forfeited and the other party will stand released from its obligations in respect of such claim. 


INDONESIA Term and Termination The following is added to the last paragraph: Both parties waive the provision of article 1266 of the Indonesian Civil Code, to the extent the article provision requires such court decree for the termination of an agreement creating mutual obligations. 


JAPAN 14. General The following is added as Item 14.11 Any doubts concerning this Agreement will be initially resolved between us in good faith and in accordance with the principle of mutual trust. 


MALAYSIA 9.2 Items for Which VA Is Not Liable The word ″SPECIAL″ in Item 9.2i is deleted. 


NEW ZEALAND 7.Warranties The following is added to the first paragraph of this Section 7  (Warranties): Although VA specifies that there are no warranties, Licensee may have certain rights under the Consumer Guarantees Act 1993 or other legislation which cannot be excluded or limited. The Consumer Guarantees Act 1993 will not apply in respect of any goods which VA provides, if Licensee requires the goods for the purposes of a business as defined in that Act. 7. Limitation of Liability The following is added: Where Programs are not obtained for the purposes of a business as defined in the Consumer Guarantees Act 1993, the limitations in this Section are subject to the limitations in that Act.


PHILIPPINES 9.2 Items for Which VA Is Not Liable The following replaces the terms of Item 9.2  special (including nominal and exemplary damages), moral, incidental, or indirect damages or for any economic consequential damages; or SINGAPORE 9.2 Items for Which VA Is Not Liable The words ″SPECIAL″ and ″ECONOMIC″ are deleted from Item 9.2. 14. General The following replaces the terms of Item 14. Subject to the rights provided to VA’s suppliers and Program developers as provided in Section 9 above (Limitation of Liability), a person who is not a party to this Agreement will have no right under the Contracts (Right of Third Parties) Act to enforce any of its terms. 


TAIWAN 9.1 Items for Which VA May Be Liable The following sentences are deleted: This limit also applies to any of VA’s subcontractors and Program developers. It is the maximum for which VA and its subcontractors and Program developers are collectively responsible. 


EUROPE, MIDDLE EAST, AFRICA (EMEA) COUNTRY AMENDMENTS EUROPEAN UNION MEMBER STATES 7. Warranties The following is added to Section 7 (Warranties): In the European Union (″EU″), consumers have legal rights under applicable national legislation governing the sale of consumer goods. Such rights are not affected by the provisions set out in this Section 7 (Warranties). 


EU MEMBER STATES AND THE COUNTRIES IDENTIFIED BELOW Iceland, Liechtenstein, Norway, Switzerland, Turkey, and any other European country that has enacted local data privacy or protection legislation similar to the EU model. 14. General The following replaces Item 14.6(1) Definitions – For the purposes of this Item 14.6, the following additional definitions apply: (a) Business Contact Information – business-related contact information disclosed by Licensee to VA, including names, job titles, business addresses, telephone numbers and email addresses of Licensee’s employees and contractors. For Austria, Italy and Switzerland, Business Contact Information also includes information about Licensee and its contractors as legal entities (for example, Licensee’s revenue data and other transactional information) (b) Business Contact Personnel – Licensee employees and contractors to whom the Business Contact Information relates. (c) Data Protection Authority – the authority established by the Data Protection and Electronic Communications Legislation in the applicable country or, for non-EU countries, the authority responsible for supervising the protection of personal data in that country, or (for any of the foregoing) any duly appointed successor entity thereto. (d) Data Protection & Electronic Communications Legislation – (i) the applicable local legislation and regulations in force implementing the requirements of EU Directive 95/46/EC (on the protection of individuals with regard to the processing of personal data and on the free movement of such data) and of EU Directive 2002/58/EC (concerning the processing of personal data and the protection of privacy in the electronic communications sector); or (ii) for non-EU countries, the legislation and/or regulations passed in the applicable country relating to the protection of personal data and the regulation of electronic communications involving personal data, including (for any of the foregoing) any statutory replacement or modification thereof. (2) Licensee authorizes VA: (a) to process and use Business Contact Information within VA in support of Licensee including the provision of support services, and for the purpose of furthering the business relationship between Licensee and VA, including, without limitation, contacting Business Contact Personnel (by email or otherwise) and marketing VA products and services (the ″Specified Purpose″); and (b) to disclose Business Contact Information to other members of VA in pursuit of the Specified Purpose only. (3) VA agrees that all Business Contact Information will be processed in accordance with the Data Protection & Electronic Communications Legislation and will be used only for the Specified Purpose. (4) To the extent required by the Data Protection & Electronic Communications Legislation, Licensee represents that (a) it has obtained (or will obtain) any consents from (and has  issued (or will issue) any notices to) the Business Contact Personnel as are necessary in order to enable VA to process and use the Business Contact Information for the Specified Purpose. (5) Licensee authorizes VA to transfer Business Contact Information outside the European Economic Area, provided that the transfer is made on contractual terms approved by the Data Protection Authority or the transfer is otherwise permitted under the Data Protection & Electronic Communications Legislation. 


AUSTRIA 9. Limitation of Liability The following is added: The following limitations and exclusions of VA’s liability do not apply for damages caused by gross negligence or wilful misconduct. 9.1 Items for Which VA May Be Liable The following replaces the first sentence in the first paragraph: Circumstances may arise where, because of a default by VA in the performance of its obligations under this Agreement or other liability, Licensee is entitled to recover damages from VA. In the second sentence of the first paragraph, delete entirely the parenthetical phrase: ″(including fundamental breach, negligence, misrepresentation, or other contract or tort claim)″. 


BELGIUM, FRANCE, ITALY, AND LUXEMBOURG 9. Limitation of Liability The following replaces the terms of Section 9 (Limitation of Liability) in its entirety: Except as otherwise provided by mandatory law: 9.1 Items for Which VA May Be Liable VA’s entire liability for all claims in the aggregate for any damages and losses that may arise as a consequence of the fulfilment of its obligations under or in connection with this Agreement or due to any other cause related to this Agreement is limited to the compensation of only those damages and losses proved and actually arising as an immediate and direct consequence of the non-fulfilment of such obligations (if VA is at fault) or of such cause, for a maximum of EUR 500,000 (five hundred thousand euro). The above limitation will not apply to damages for bodily injuries (including death) and damages to real property and tangible personal property for which VA is legally liable. 

9.2 Items for Which VA Is Not Liable UNDER NO CIRCUMSTANCES IS VA OR ANY OF ITS PROGRAM DEVELOPERS LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY: 1) LOSS OF, OR DAMAGE TO, DATA; 2) INCIDENTAL, EXEMPLARY OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; AND / OR 3) LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS, EVEN IF THEY ARISE AS AN IMMEDIATE CONSEQUENCE OF THE EVENT THAT GENERATED THE DAMAGES. 

9.3 Suppliers and Program Developers The limitation and exclusion of liability herein agreed applies not only to the activities performed by VA but also to the activities performed by its suppliers and Program developers, and represents the maximum amount for which VA as well as its suppliers and Program developers are collectively responsible. 


GERMANY 

9. Limitation of Liability The following replaces this Section 9 (Limitation of Liability) in its entirety: a. VA will be liable without limit for 1) loss or damage caused by a breach of an express guarantee; 2) damages or losses resulting in bodily injury (including death); and 3) damages caused intentionally or by gross negligence. b. In the event of loss, damage and frustrated expenditures caused by slight negligence or in breach of essential contractual obligations, VA will be liable, regardless of the basis on which Licensee is entitled to claim damages from VA (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), per claim only up to 500,000 euro for the Program that caused the loss or damage. A number of defaults which together result in, or contribute to, substantially the same loss or damage will be treated as one default. c. In the event of loss, damage and frustrated expenditures caused by slight negligence, VA will not be liable for indirect or consequential damages, even if VA was informed about the possibility of such loss or damage. d. In case of delay on VA’s part: 1) VA will pay to Licensee an amount not exceeding the loss or damage caused by VA’s delay and 2) VA will be liable only in respect of the resulting damages that Licensee suffers, subject to the provisions of Items a and b above. 

14. General The following replaces the provisions of 14.8 Any claims resulting from this Agreement are subject to a limitation period of three years, except as stated in Section 7 (Warranties) of this Agreement. The following replaces the provisions of 14.9 No right or cause of action for any third party is created by this Agreement, nor is VA responsible for any third party claims against Licensee, except (to the extent permitted in Section 9 (Limitation of Liability)) for: i) bodily injury (including death); or ii) damage to real or tangible personal property for which (in either case) VA is legally liable to that third party. 


IRELAND 7. Warranties The following paragraph is added to the second paragraph of this Section 7 (Warranties): Except as expressly provided in these terms and conditions, or Section 12 of the Sale of Goods Act 1893 as amended by the Sale of Goods and Supply of Services Act, 1980 (the ″1980 Act″), all conditions or warranties (express or implied, statutory or otherwise) are hereby excluded including, without limitation, any warranties implied by the Sale of Goods Act 1893 as amended by the 1980 Act (including, for the avoidance of doubt, Section 39 of the 1980 Act). 

IRELAND AND UNITED KINGDOM 2. Agreement Structure The following sentence is added: Nothing in this paragraph shall have the effect of excluding or limiting liability for fraud. 9.1 Items for Which VA May Be Liable The following replaces the first paragraph of the Subsection: For the purposes of this section, a ″Default″ means any act, statement, omission or negligence on the part of VA in connection with, or in relation to, the subject matter of an Agreement in respect of which VA is legally liable to Licensee, whether in contract or in tort. A number of Defaults which together result in, or contribute to, substantially the same loss or damage will be treated as one Default. Circumstances may arise where, because of a Default by VA in the performance of its obligations under this Agreement or other liability, Licensee is entitled to recover damages from VA. Regardless of the basis on which Licensee is entitled to claim damages from VA and except as expressly required by law without the possibility of contractual waiver, VA’s entire liability for any one Default will not exceed the amount of any direct damages, to the extent actually suffered by Licensee as an immediate and direct consequence of the Default, up to 500,000 euro (or the equivalent in local currency) for the Program that is the subject of the claim. Notwithstanding the foregoing, the amount of any damages for bodily injury (including death) and damage to real property and tangible personal property for which VA is legally liable is not subject to such limitation. 9.2 Items for Which VA Is Not Liable The following replaces Items 9.1a and 9.1b: special, incidental, exemplary, or indirect damages or consequential damages; or c. wasted management time or lost profits, business, revenue, goodwill, or anticipated savings.