Realty Technologies Pty Ltd
PM Pro Software License Agreement
SOFTWARE LICENCE AGREEMENT
PM PRO
Realty Technologies License Agreement 2015.
Realty Technologies Pty Ltd
PM Pro Software License Agreement
This Software License Agreement (“Agreement”) specifies the approved use of PM Pro and associated
services and fees between the licensor (“Realty Technologies”) and the licensee (Property Agency):
Recital
Realty Technologies grants and Licensee accepts a license to use the Licensed Software subject to the
following terms and conditions.
1. DEFINITIONS.
“Documentation” means the user manuals, help files and any other documentation provided to Licensee along with
the Licensed Software.
“Effective Date” means the date of this Agreement.
“Error” means a failure of Licensed Software to conform to its functional specifications described in the
Documentation.
“Error Correction” means any bug fixes, modifications, additions, or routines intended to correct the practical adverse
effect of an Error.
“Fees” means, collectively, the License Fees including all applicable taxes.
“Instance” means the use of the Licensed Software on one operating system file directory created for the purposes of
supporting the application module(s) included as part of the Licensed Software.
“Intellectual Property Rights” means all worldwide copyrights, trademarks, service marks, trade secrets, patents,
patent applications and disclosures, moral rights, rights in databases, contract rights, and other proprietary rights.
"Licensee" means the party named as Licensee at the start of this Agreement and includes any single successor body,
whether created by machinery-of-government change, legislation or otherwise
"License Fee" means the fee specified in Schedule 1.
“License Period” means the period commencing from the Effective Date or Purchase Order for the period specified in
Schedule 1.
“Licensed Software” means the software specified in Schedule 1.
“Named Users” means the number of users nominated to have access to the Licensed Software specified in Schedule 1
or on a Purchase Order.
“Support Services” means the services defined in Schedule 2.
“Updates” means the error corrections, updates, modifications or enhancements to the Licensed Software that Realty
Technologies makes generally available to its Licensees for no additional charge. Updates exclude new products,
features, or enhancements for which Realty Technologies generally charges a separate fee.
2. LICENCE GRANT
Subject to the terms and conditions of this Licence Agreement, Realty Technologies grants Licensee a nonexclusive licence:
2.1. to use or engage subcontracted inspection agents to use the Licensed Software for commercial
purposes to record and publish property management inspections;
3. SUPPORT.
3.1. Subject to the terms and conditions of this Agreement, Realty Technologies will provide to Licensee
the Support Services specified in Schedule 1.
4. FEES; PAYMENT; TAXES.
4.1. Licensee will pay the License Fee specified in Schedule 1. Except as otherwise provided under this
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Agreement, each party shall be responsible for any and all expenses incurred by it in connection
with the negotiation, execution, and performance of this Agreement.
4.2. Payment Terms. All amounts payable under this Agreement shall be pursuant to the payment
terms specified in Schedule 1, and will be specified in any invoices issued. Any amount owed that is
not paid when due will accrue interest at the prevailing Reserve Bank base rate +2% per annum or
the maximum rate permitted by applicable law, whichever is less, from the due date until paid.
Under no circumstances will any amount due or payable to Realty Technologies hereunder or in
connection thereto be reduced, whether by set-off, counterclaim, adjustment or otherwise, by
virtue of any claim of Licensee or third party.
4.3. Taxes. All Fees are exclusive of, and Licensee is responsible for, duties, sales, use, value added and
other taxes.
4.4. Price Increase. The Licence Fee maybe increased in subsequent years to take account of the
movement in costs.
5. WARRANTY & DISCLAIMER
5.1. Realty Technologies warrants that:
(a) It shall supply Licensed Software and Support Services with all due care and skill.
(b) It shall use its best endeavours to ensure that the Licensed Software is error free and virus
free.
5.2. Realty Technologies will not be liable to correct any defect in the Licensed Software if the defect is
the result of:
(a) Use of the Licensed Software in combination with equipment, programs or services in which
substantially deviate from the recommendations in writing by Realty Technologies;
(b) Use of the Licensed Software other than in the operating environment recommended by
Realty Technologies; or
(c) The failure of Licensee to meet its obligations under this Agreement
5.3. Realty Technologies does not warrant that the Licensed Software:
(a) Is fit for any purpose, apart from those purposes listed in the Documentation.
(b) Shall provide any function not specified in the Documentation; or
5.4. Realty Technologies cannot state and does not state whether or not the Licensed Software will
work in the environment or at the times other than for which the Licensed Software was expressly
designed and tested.
5.5. Each Party acknowledges and confirms that neither the other Party nor any person acting on the
other Party's behalf has made any representation or other inducement to it to enter into this
Agreement, except for representations or inducements expressly set out in this Agreement.
5.6. Each Party acknowledges and confirms that it does not enter into this Agreement in reliance on any
representation or other inducement by or on behalf of any other Party, except for representations
or inducements expressly set out in this Agreement.
5.7. Exclusive Remedy. Realty Technologies, as its sole obligation and Licensee’s exclusive remedy for
any breach of the warranty in this section, shall, at Realty Technologies’ election, either replace the
Licensed Software or correct any reproducible Error in the Licensed Software reported to Realty
Technologies by Licensee.
5.8. Disclaimers
EXCEPT AS SET FORTH IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE
LICENSED SOFTWARE AND SERVICES ARE PROVIDED “AS IS” AND REALTY TECHNOLOGIES AND ITS
LICENSORS HEREBY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY,
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REGARDING THE LICENSED SOFTWARE, DOCUMENTATION AND ANY OTHER PRODUCTS OR
SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING ANY WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF
THIRD PARTY RIGHTS.
6. INFRINGEMENT CLAIMS
Realty Technologies will defend at its own expense any action against Licensee brought by a third party to
the extent that the action is based upon a claim that the Licensed Software infringes any copyrights or
Intellectual Property (“Infringement Claim”), and Realty Technologies will pay those costs and damages
finally awarded against Licensee in any such action that are specifically attributable to such claim or those
costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are
conditioned on Licensee notifying Realty Technologies promptly in writing of such action.
If the Licensed Software becomes, or in Realty Technologies’ opinion is likely to become, the subject of an
Infringement Claim, Realty Technologies shall, at its sole option and expense, either (a) procure for Licensee
the right to continue using the Licensed Software, or (b) replace or modify the Licensed Software so that it
becomes non-infringing. If neither of the foregoing options is reasonably commercially feasible to Realty
Technologies, then Realty Technologies shall accept return of the Licensed Software and give Licensee a
refund for the Initial License Fees paid by Licensee less an allowance for the period of time Licensee has
used the Licensed Software using a three year amortization period from the Effective Date of this
Agreement.
Notwithstanding the foregoing, Realty Technologies will have no obligation under this Section or otherwise
with respect to any infringement claim based upon (i) any use of the Licensed Software not in accordance
with this Agreement, (ii) any use of the Licensed Software in combination with other products, equipment,
software, or data not supplied by Realty Technologies, but only to the extent that any infringement is caused
solely by such combination and not by the Licensed Software on a stand-alone basis, (iii) any use of any
release of the Licensed Software other than the most current release made available to Licensee, or (iv) any
modification of the Licensed Software by any person other than Realty Technologies, but only to the extent
that any infringement is caused solely by such modification and not by the Licensed Software in the form
delivered (or updated) by Realty Technologies hereunder.
7. INDEMNIFICATION
Licensee will indemnify, defend and hold harmless Realty Technologies, its officers, employees, agents and
assigns from and against any third party claim:
7.1. Where that loss or liability was caused by a wilful, unlawful or negligent act or omission by the
Licensee or its officers, employees, agents and assigns; or
7.2. Where and to the extent that loss or liability relates to personal injury, death or property damage
arising out of or in connection with an act or omission of the Licensee or its officers, employees,
agents and assigns under this Agreement.
8. LIMITATION OF LIABILITY
10.1 Subject to clause 10.2, liability under this Agreement will be limited. The limit on liability will apply for
the benefit of both parties in respect of each single occurrence. The maximum liability of a party to this
Agreement will be limited to the value of the Licence Fee in any twelve (12) month period of the Agreement.
10.2 The limitation of liability in clause 10.1 does not apply to:
(a) Personal injury, including sickness or death;
(b) Loss of, or damage to, personal property;
(c) Infringement of Intellectual Property Rights.
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9. CONFIDENTIALITY
9.1. Confidential Information. Each party (the “Disclosing Party”) may from time to time during the
term of this Agreement disclose to the other party (the “Receiving Party”) certain information
regarding the Disclosing Party’s business, including technical, marketing, pricing, financial,
employee, planning, and other confidential or proprietary information (“Confidential Information”).
Confidential Information shall be designated as confidential in writing or, if disclosed orally,
designated as confidential at the time of disclosure. Notwithstanding anything to the contrary, the
following is Confidential Information of Realty Technologies: (a) the Source Code and all
methodologies, routines, algorithms and processes underlying or relating to the Licensed Software
and Professional Services, (b) the terms (such as pricing, discounts, payment terms, indemnification
or warranty terms) but not the existence of this Agreement, (c) the results of any benchmarking or
similar testing related to the Licensed Software, and (d) any information regarding Realty
Technologies' business, including technical, marketing, financial, employee, planning and other
confidential or proprietary information. The following is confidential to the Licensee: (a) All
property, owner and tenant information stored within PM Pro during the term of the license
agreement and; upon termination of the license agreement between Realty Technologies and the
Licensee, that all confidential information owned by the Licensee will be removed from PM Pro and
made available in the following manner:
11.1.1 Structured information stored within the database will be made available as a Microsoft Excel
File, as a comma delimited format.
11.1.2 Unstructured information (for example, published inspection reports) stored on the website
will be printed by the Licensee, with any costs associated with printing Licensee Owned information.
9.2. Use. The Receiving Party will not use any Confidential Information of the Disclosing Party for any
purpose inconsistent with this Agreement, and the Receiving Party will disclose the Confidential
Information of the Disclosing Party only to the employees of the Receiving Party who have a need
to know such Confidential Information for purposes of this Agreement and who are under a duty of
confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will
protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure
in the same manner as the Receiving Party protects its own confidential or proprietary information
of a similar nature and with no less than reasonable care.
9.3. Exceptions. The Receiving Party’s obligations with respect to any Confidential Information of the
Disclosing Party will terminate if such information: (a) was legally obtained and known to the
Receiving Party at the time of disclosure by the Disclosing Party; (b) is or was disclosed to the
Receiving Party by a third party who had the right to make such disclosure without any
confidentiality restrictions; (c) is, was, or through no fault of the Receiving Party has become,
generally available to the public; (d) was disclosed by the Disclosing Party to a third party where
such third party has no then current duty of confidentiality; or (e) is or was independently
developed by or for the Receiving Party without access to, or use of, the Disclosing Party’s
Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential
Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by
the Disclosing Party; or (ii) necessary for the Receiving Party to enforce its rights under this
Agreement; or (iii) required by law or by the order of a court of similar judicial or administrative
body, provided that under (iii) the Receiving Party notifies the Disclosing Party of such required
disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing
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Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such
required disclosure.
10. TERM AND TERMINATION.
10.1. Term. This Agreement will begin on the Effective Date and will continue for the duration of the
License Period unless terminated in accordance with the provisions Specified in Schedule 1 or the
following provisions.
10.2. Termination.
(a) By Realty Technologies. Realty Technologies may terminate this Agreement as follows: (i)
effective immediately upon written notice to Licensee if Licensee breaches any provision of
Section 2, 0 or 9; (ii) effective upon Realty Technologies’ notice of intent to issue a refund
pursuant to Section 8; or (iii) effective immediately if Licensee has a receiver appointed, or
resolves to enter into or is the subject of any judicial management or liquidation or
reorganization proceedings, or becomes an assignee for the benefit of creditors, or in the
event of any insolvency or inability to pay debts as they become due.
(b) By Licensee for convenience:
(i) The Licensee may terminate this Agreement in whole or in part at any time in writing.
(ii) Where the Licensee terminates this Agreement under clause 12.2(b)(i), Realty Technologies
must immediately comply with any directions given in the notice and do all that is possible to
mitigate its losses arising from the termination of this Agreement.
(iii) Where the Licensee terminates this Agreement under clause 12.2(b)(i), the Licensee will
pay to the Realty Technologies:
(A) all amounts owing in respect of Services performed, and work in progress as at the
date of termination, to the extent that such Services or work in progress have, in the
reasonable opinion of the Licensee, been properly incurred and performed in accordance
with the requirements of the this Agreement; and
(B) any costs or expenses incurred directly under this Agreement by Realty
Technologies to the extent such costs or expenses:
(I) have been properly incurred by Realty Technologies in accordance with the
requirements of this Agreement;
(II) cannot be mitigated or represent materials which cannot otherwise be used
or deployed by Realty Technologies in the conduct of its ordinary business; and
(III) are substantiated to the reasonable satisfaction of the Licensee.
(iv) Realty Technologies acknowledges and agrees that:
(c)
(A)
any amount paid by the Licensee pursuant to clause 12.2(b)(iii) will be finally
determined by the Licensee (acting reasonably);
(B)
in no event will the Licensee be liable to Realty Technologies in respect of any
indirect or consequential costs, including any loss of profit or loss of opportunity;
(C)
under no circumstances will the Licensee’s liability under this clause 12.2(b) exceed
the balance of the unpaid Fees; and
(D)
no further compensation will be payable by the Licensee in the event of
termination under clause 12.2(b).
By either party for default. Either party may terminate this Agreement immediately on written
notice to the other, while preserving to itself any rights which may have accrued to it, where
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the other party:
(i)
commits a material breach (or a series of minor breaches which may constitute a
material breach) of this Agreement which is not capable of being remedied;
(ii)
fails to remedy a breach capable of being remedied within a period stated by notice in
writing (which period must be reasonable in the circumstances); or
(iii)
commits an act of insolvency, comes under any form of insolvency administration, or
assigns or purports to novate its rights otherwise than in accordance with the
Agreement.
(d) Mutual. In addition to each party’s right to terminate this Agreement pursuant to Section
10.2(a), Section 10.2(b) and Section 12.2(c), respectively, each party shall have the right to
terminate this Agreement if either party has given the other party written notice of its intention
to not renew this Agreement beyond the then current Term at least 90 days prior to the
expiration of the then current Term.
10.3. Effects of Termination. Subject to clause 12.2(b), upon termination or expiration of this
Agreement for any reason, any amounts owed to Realty Technologies under this Agreement before
or as of such termination or expiration will be immediately due and payable. Each party shall return
or destroy Confidential Information of the other party and shall certify to the other in a writing
signed by an authorized representative that it has fully complied with the requirements of this
Section 10.3.
10.4. Survival. The following provisions will survive expiration or termination of this Agreement:
Sections 1, 2, 0, 3, 4, 5.2, 5.3, 5.8, 6, 7, 8, 9, 10.3, 10.4 and 11.
11. GENERAL
11.1. Proprietary Rights and Ownership in the Licensed Software. The Licensed Software, (including
Source Code and Executable Code formats) and Documentation, (including any inventions or other
work product created in the performance of this Agreement) and all Intellectual Property Rights
therein, are the exclusive property of Realty Technologies. All rights in and to the Licensed
Software not expressly granted to Licensee in this Agreement are reserved by Realty Technologies
and its suppliers and all uses accrue solely to the benefit of Realty Technologies. Licensee will not
remove, alter, or obscure any Intellectual Property Rights notices of Realty Technologies or its
suppliers on the Licensed Software or Documentation.
11.2. Proprietary Rights and Ownership in the Professional Services. Realty Technologies and its
suppliers shall retain all rights, title and interest in any and all Intellectual Property Rights, including,
without limitation, in any and all products, data, plans, specifications, reports, designs,
technological “know how”, methodologies, documentation and other information or materials
which Realty Technologies, alone, or jointly with others, its agents or employees, conceives, makes,
develops, acquires or obtains knowledge of at any time before, after or during the term of this
Agreement without breach of Realty Technologies’ duty of confidentiality to Licensee (collectively
“Realty Technologies Materials”) used or in any manner employed by Realty Technologies in the
provision of Professional Services under this Agreement. To the extent Realty Technologies
Materials may be included with or embodied in any deliverables delivered hereunder, Realty
Technologies grants Licensee, upon full payment of the Professional Services Fees (if any), such
rights necessary so as to give full effect to the licence granted in clause 2 of this Agreement. In
addition, Licensee acknowledges that Realty Technologies may create original works for third
parties that may appear similar to the deliverable or Professional Services. Licensee agrees that, so
long as such original work does not embody and is not created with reference to any Licensee’s
Confidential Information or any portion of the Licensee’s owned materials, Realty Technologies will
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not be prevented from independently creating such original, but similar, works for the benefit of
third parties.
11.3. Assignments. Licensee may not assign or transfer, by operation of law or otherwise (including,
without limit, in connection with any merger, consolidation or sale of all or a significant portion of
Licensee’s assets or in connection with any similar transaction) this Agreement or any of rights
hereunder (including its licenses with respect to the Licensed Software) to any third party without
Realty Technologies’ prior written consent; provided, however, that in the event that any such
written consent is granted by Realty Technologies and regardless of the terms of any applicable
assignment agreement or other applicable document, any use of the Licensed Software,
Documentation or Professional Services by the permitted assignee shall be pursuant to the same
terms and conditions and for substantially the same purpose and scope as the use of the same by
Licensee prior to such assignment and as permitted under this Agreement. Any attempted
assignment or transfer in violation of the foregoing will be void. Realty Technologies may delegate
its obligations and/or assign its rights hereunder to any wholly-owned subsidiary of Realty
Technologies. Subject to the foregoing, this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their permitted successors and assigns.
11.4. Governing Law. This Agreement shall be construed, and the legal relations between the parties
hereto shall be determined, in accordance with the laws of Western Australia.
11.5. Remedies. Licensee acknowledges that the Licensed Software contains valuable trade secrets
and proprietary information of Realty Technologies, that any actual or threatened breach of clause
3 will constitute immediate, irreparable harm to Realty Technologies for which monetary damages
would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such
breach. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled
to receive its legal fees, court costs and other collection expenses, in addition to any other relief it
may receive.
11.6. Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this
Agreement on one occasion will not be deemed a waiver of any other provision or of such provision
on any other occasion.
11.7. Severability. If any provision of this Agreement is unenforceable, such provision will be changed
and interpreted to accomplish the objectives of such provision to the greatest extent possible
under applicable law and the remaining provisions will continue in full force and effect.
11.8. Construction. The headings of Sections of this Agreement are for convenience and are not to be
used in interpreting this Agreement. As used in this Agreement, the word “including” means
“including but not limited to”.
11.9. Counterparts. This Agreement may be executed in counterparts, each of which will be
considered an original, but all of which together will constitute the same instrument.
11.10. Force Majeure. Any delay in the performance of any duties or obligations of either party (except
the payment of money owed) will not be considered a breach of this Agreement if such delay is
caused by an:
(a) act of God (such as, but not limited to, lightning, storm, flood, fire, earthquake, explosion,
cyclone, tidal wave or landslide); or
(b) act of public enemy, war (declared or undeclared), act or terrorism, sabotage, blockade,
revolution, riot, insurrection, civil commotion or epidemic,
provided that such party uses reasonable efforts, in the circumstances, to notify the other party of
the circumstances causing the delay and resume performance as soon as possible.
11.11. Independent Contractors. Each party’s relationship to the other is that of an independent
contractor, and neither party is an agent or partner of the other. Neither party will have, and will
not represent to any third party that it has, any authority to act on behalf of the other party.
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11.12. Entire Agreement. This Agreement constitutes the entire agreement between the parties
regarding the subject hereof and supersedes all prior or contemporaneous agreements,
understandings, and communication, whether written or oral. This Agreement may be amended
only by a written document signed by an officer or other authorized employee of both parties.
Nothing contained in Schedule 1, purchase order, purchase order acknowledgement, or invoice
shall in any way modify or add any additional terms or conditions to this Agreement; provided,
however, that such standard variable terms such as price, quantity, tax exempt status, shipping
instructions, scope of Professional Services and the like shall be specified on each Specified in
Schedule 1. Orders are non-cancellable, non-refundable, non-returnable. If Licensee places
contingencies or Agreement modifications when issuing a purchase order (whether Realty
Technologies’ or Licensee’s form), then only contingencies agreed upon in written advance by
Realty Technologies shall be enforceable, and only if such contingencies are referenced in the
Specified in Schedule 1.
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Schedule 1 – SOFTWARE, SUPPORT, UPDATES AND NEW RELEASES
Realty Technologies will provide, at its discretion, software updates to the Licensee to address:
 Errors
 Enhancements
 New Features
Licensee will be notified of the updates prior to the release of any software updates applied to PM Pro.
Realty Technologies will make available software documentation related to the recommended Operating
Environment within which PM Pro is certified to operate as promoted.
Realty Technologies will make available software support and training material based on the recommended
use of PM Pro for the Licensee, in support of business services with respect to Property Management
inspections.
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