FranchiseCare Software License
Blue Wheelers Pty Ltd and associated companies Franchisee Licence

DEFINITIONS
In this Agreement:

“Customer” means a user of the software as permitted by the Franchisor or its Master Franchisee; “Intellectual Property Rights” means all property in the Software and rights to patents, licenses, trademarks, trade names, inventions, trade secrets, copyrights, and know-how relating to the origin, manufacture, programming, operating and/or servicing of the Software and any enhancements or modifications relating thereto; “Site” means the location at which the Software is to be used or such other location as the Licensor may authorise in writing; “Software” means the combination of programs and supporting documentation (including any manuals) including any upgrades or enhancements made available by the Licensor to the Customer from time to time.

LICENCE

Subject to payment of all initial and ongoing Licence Fees, the Licensor grants to the Customer a non-exclusive, non-transferable licence for the Customer to use the Software for its own internal business purposes and in accordance with the terms and conditions set out in this Agreement. The Licensor may make available to the Customer upgrades of the Software at prices to be determined by the Licensor in conjunction with the Franchisor and the Customer will be obliged to acquire or use such upgrades.

The Franchisor or its representative(s) may direct the Licensor or its representative(s) to deny access to the Software if the Customer is in breach of their obligations to their Master Franchisee and or their Franchisor in accordance with the terms of their Franchise Agreement. The ongoing use of software by the customer is contingent on being up to date in all payments for the use of software; while they remain a franchisee within the Franchise System.

All Customers agree that use of the Software and the System grants full and unfettered access to the database and use of the information therein to the Customers’ Master Franchisee and the Franchisor as is also proscribed in Franchise Agreements signed by Customers.

PROTECTION OF LICENSOR’S INTELLECTUAL PROPERTY RIGHTS

The Customer acknowledges that the Intellectual Property Rights in the Software belong to the Licensor. The Customer undertakes not to copy, decompile, reverse engineer, translate, adapt, vary, modify, distribute or publish the Software except as expressly permitted by this Agreement. The Customer will treat all information communicated in confidence under or in connection with this Agreement as confidential unless: (i) it is published by the Licensor; or (ii) enters the public domain other than through breach of this Agreement by the Customer. The Customer covenants that it will at all times take all reasonable steps to ensure the non-disclosure and confidentiality of the Software and all matters relating thereto; use its best endeavours to bind its officers and employees and agents not to disclose, communicate, copy or reveal for any purpose whatsoever the Software or any part thereof except as permitted by this clause and the Customer accepts liability for any breach of this Agreement by its officers and employees and agents; not transfer, assign, sub-licence, charge or otherwise deal in the Software other than in accordance with the terms of this Agreement; maintain all copyright notices on all copies of the Software; and notify the Licensor immediately it becomes aware that any person may have unauthorised knowledge, possession or use of the Software. The Customer’s obligation to ensure non-disclosure and confidentiality under this Clause will survive termination of this Agreement.

WARRANTY

The Licensor warrants that: it has full power and authority to grant the licence. To the best of its knowledge and belief, the Software does not infringe any copyright, trade secret or other proprietary right of any third party and will take all necessary action to protect, and indemnifies, the Customer against all costs, expenses and damages incurred in connection with any claim of infringement arising out of the Customer’s use of the Software. The Software will function in accordance with its specification but the Customer acknowledges that the Software is of a complicated and technical nature and may have minor inherent defects. The Licensor will provide reasonable programming and remedial services to correct documented code errors which are caused by a defect in an unaltered version of the Software. This non-transferable warranty will be valid for a period of three months from the date of original delivery of the Software.

LIMITATION OF LIABILITY

The warranties above are expressly in lieu of all other representation, conditions or warranties (statutory, express or implied) and all such representations, conditions and warranties (except any which may not lawfully by excluded) are expressly excluded. Except as expressly provided above, the Licensor will under no circumstances be liable to the Customer under the law of tort, contract or otherwise (including negligence) for any loss of profits or any indirect or consequential loss or damage, however caused, arising out of or in connection with the use of the Software. The Licensor’s liability to the Customer arising out of any claim for damages for any cause whatsoever made under this Agreement will under no circumstances exceed in aggregate the total amount of sums actually paid by the Customer to the Licensor.

DEFAULT AND TERMINATION

The Licensor may terminate this agreement and the licence granted forthwith by notice in writing to the Customer if the Customer: is in breach of any of its obligations under this Agreement and fails to remedy such breach within 14 days after notice from the Licensor requiring the breach to be remedied, or; becomes bankrupt or goes or is put into liquidation or has a receiver or statutory manager appointed of its assets or any of them or becomes insolvent, ceases to carry on its business or makes any composition or arrangement with its creditors. Within 7 days of termination of this Agreement the Customer will deliver to the Licensor all copies of the Software supplied to it by the Customer and will destroy all other copies of the Software possessed by it in whatever form. The Customer will allow the Supplier or its agents or subcontractors access to the Site, and provide reasonable assistance, to ensure compliance with this clause.

GENERAL

Any notice under this Agreement will be in writing or by facsimile transmission sent to the registered office or principal place of business (as stated herein) of the other party or to such other address as may be notified by either party to the other from time to time. Any communication by facsimile transmission will be deemed to be received when transmitted to the correct facsimile transmission address of the recipient and any communication in writing will be deemed to be received when left at the specified address of the recipient or two days following the date of posting. The Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of the Licensor. If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will continue in full force and effect. No waiver of any breach of this Agreement by either party will be effective except an express waiver in writing signed by the party against whom enforcement of the waiver is sought. A waiver of either party’s rights or remedies will not constitute a waiver of any other breach of this Agreement. This Agreement embodies the entire understanding of the parties relating to the matters referred to and supersedes all other agreements and representation (except fraudulent misrepresentations) made by the parties whether oral or written.

No amendment to this Agreement will be binding on either party unless confirmed in writing by both parties. This Agreement shall by and construed in accordance with the laws of New Zealand and Australia.