Last updated: 13/06/14
THIS IS A BINDING AGREEMENT between NBN Co Limited (NBN) and any person (you) who downloads and installs or otherwise obtains a version of the “Assisted Drafting Tool” application which can assist developers in capturing the NBN “Pit and Pipe” network and in auditing their design for compatibility with NBN “CAD” requirements and database compatibility (ATD) and any associated documentation, including, but not limited to, operating or user manuals (Documentation).
By selecting the "I Accept" button or by otherwise downloading, installing or accessing the ATD, you agree that you have read and understood and are bound by the terms of this agreement. If you do not agree to the terms of this agreement, please click ‘Cancel’ and do not download, install or access the ATD.
1. SCOPE OF LICENCE
1.1 Licence grant. NBN grants you a limited, non-exclusive, non-transferable, non-sublicensable licence to use a machine-readable object code copy of the ATD (or any upgrades or new versions of the ATD provided from time to time by NBN Co at its discretion), and to use the Documentation, strictly in accordance with the terms of this agreement (Licence) and for the sole purpose of providing services (including pit and pipe designs) to NBN under your developer agreement (or similar) with NBN. In consideration of the grant of the Licence, you agree to comply with the terms of this agreement.
1.2 Conditions. You must ensure that you only use the ATD as permitted by this agreement and that you comply with your obligations under this agreement. The grant of the Licence is conditional upon your continuous compliance with all licence limitations, restrictions and other terms in this agreement. If you violate any of these limitations, restrictions or other terms, the Licence grant will automatically and immediately terminate without notice to you. You must safeguard the ATD from misuse, unauthorised use, loss or damage.
1.3 Permitted Use. You must use the ATD and the Documentation in good faith, and must at all times comply with this agreement and all applicable laws, statutes and regulations (including in relation to privacy and the use and collection of personal information) in all jurisdictions that relate to your use of the ATD and the Documentation. You must also comply with any reasonable directions and policies of NBN notified or provided to you by NBN from time to time, including in relation to the use of the ATD and the Documentation.
1.4 Restrictions. You must not, and must not permit any third party to:
(a) install, access, copy, modify, add to, create derivative works from, arrange, adapt, delete or amend any part of the ATD or the Documentation except as permitted by this agreement;
(b) grant any sublicences to exercise any rights in respect of the ATD or the Documentation, or permit any person to use the ATD or the Documentation, other than allowing your end users and personnel to access and use the ATD or the Documentation in accordance with this agreement;
(c) allow your end users and personnel or third parties to do anything inconsistent with the terms of this agreement;
(d) sell, translate, network, publish, commercialise, rent, lease, assign, transfer, export, loan or otherwise redistribute all or part of the ATD or the Documentation;
(e) reverse engineer, disassemble, or decompile any software forming part of the ATD, unless permitted to do so by law, and then only strictly in accordance with the provisions or terms under which that right is given by such law;
(f) use the ATD or the Documentation for any unlawful purpose;
(g) remove, alter or obscure any proprietary notices, labels or marks from or on the ATD or the Documentation;
(h) directly or indirectly introduce, or permit the introduction by your end users and personnel of, any virus, worm, trojan or other malicious code into the ATD, or in any other manner whatsoever corrupt, degrade or disrupt the operation of the ATD;
(i) utilise any equipment, device, software or other means designed to circumvent or remove any form of copy protection used by NBN and its licensors in connection with the ATD; or
(j) install or access, or allow the installation or access of, the ATD or the Documentation over the internet, including but not limited to use in connection with web hosting, commercial time-sharing, service bureau, or similar service, or make the ATD or the Documentation available to third parties over the internet on your computer system or otherwise.
1.5 Use outside of Australia. You may not access the ATD outside of Australia.
2. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS
2.1 You agree that all rights, title and interest (including all intellectual property rights) in the ATD and the Documentation vest absolutely in NBN and/or its licensors. The only rights you have in respect of the ATD and the Documentation (and the intellectual property rights subsisting in them) are those granted under and subject to this agreement. Save as granted under applicable law, you have no other rights in the ATD or the Documentation, implied or otherwise. You must notify NBN immediately if you know or suspect any unauthorised use, or violation of any intellectual property rights relating to the ATD or the Documentation.
2.2 If you make any improvements, additions or modifications to the ATD (Improvements) whether during the term of this agreement or after it, and whether with the authority of NBN or otherwise, all of your rights, title and interest (including all intellectual property rights) in such Improvements are hereby assigned to NBN, and you must do all things necessary to effect that assignment.
3. CONFIDENTIAL INFORMATION
3.1 For the purposes of this clause 3, Confidential Information means information relating to the structure, organisations, code, development, layout, programming and operation of the ATD or the NBN-licensed software of which the ATD forms part of, and any other information with respect to NBN's business, finances, trade secrets or know-how that may be communicated to you (whether by NBN or otherwise) during the term of this agreement, but excludes information:
(a) that is in, or subsequently enters, the public domain other than through a breach of this agreement by you;
(b) developed independently by you; or
(c) acquired by you from a third party who is not subject to a duty of confidentiality in respect of such information.
3.2 You must:
(a) ensure that the Confidential Information is kept secret, and is not disclosed to any third party, other than to your end users and personnel, and even then, only to the extent that such persons have a need to know such information either to use the ATD or to exercise your rights or fulfil your obligations;
(b) not use, reproduce or communicate any Confidential Information, other than for the purposes of this agreement, unless NBN gives its express written consent for you to do so; and
(c) procure that your end users and personnel do such things, or refrain from doing such things (as the case may be), as to ensure that you comply with your obligations under sub-clause 3.2(a) and (b) above.
3.3 You will not be in breach of your obligations under clause 3.2 if you disclose Confidential Information pursuant to a statutory requirement, order of a court or legal direction or requirement of a person acting with statutory authority. If you are required to disclose Confidential Information in such circumstances, you must, before disclosing that information, notify NBN in writing and permit NBN the opportunity to limit the scope, or seek the withdrawal, of such required disclosure. You must provide NBN with reasonable co-operation in this regard.
4. INDEMNITY
4.1 Indemnity. You indemnify NBN (and all its related bodies corporate and its personnel) and must keep them indemnified against all loss, actions, proceedings, cost and expenses (including legal fees), claims and damages arising directly or indirectly out of or in connection with:
(a) any breach of this agreement by you;
(b) your negligent or wilfully wrong acts or omissions;
(c) any other use or misuse by you of the ATD; or
(d) any suit, claim or demand brought or made against NBN (including by NBN's licensor in respect of the software of which the ATD forms part of) in connection with or in any way relating to your use of the ATD or your conduct, acts or omissions.
5. WARRANTIES AND DISCLAIMERS
5.1 No warranties. To the extent permitted by law, NBN excludes all warranties or representations, express or implied with respect to the ATD. Any statements or representations about the ATD and its functionality in any documentation or any communication with you constitute technical information and not an express warranty or guarantee.
5.2 Disclaimer of warranties. NBN specifically disclaims any other warranty including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, non-infringement and as to the availability, accuracy, reliability or completeness of the operation or output of the ATD, or that the output or operation of the ATD will be uninterrupted or error-free.
5.3 Consumer guarantees. To the extent permitted by law, any liabilities and other terms implied or conferred by statute, custom or the general law that impose any liability or obligation on NBN are excluded under this agreement. However, if a supply under this agreement is a supply of goods or services to a consumer within the meaning of the Australian Consumer Law (contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) as given effect under Part XI of the Competition and Consumer Act 2010 (Cth), as amended or replaced from time to time), nothing contained in this agreement excludes, restricts or modifies the application of any provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law, provided that, to the extent the Australian Consumer Law permits NBN to limit its liability, NBN's liability is limited to (at NBN's option):
(a) in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and
(b) in the case of software or other goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired.
6. EXCLUSIONS OF LIABILITY
6.1 Exclusion of liability. Subject to clause 5.3, NBN excludes liability for all direct, indirect or consequential liabilities, loss of profits, loss of revenue, loss of data, damages, costs and expenses, whether arising in contract, tort (including but not limited to negligence) or otherwise suffered or incurred by any person (regardless of whether NBN has been advised of the possibility of such damages and regardless of whether the remedies available under this agreement are sufficient to meet their purpose):
(a) in connection with or in any way relating to the ATD or its use, including (without limitation):
(i) any disabling of, disruption to or unavailability or failure of the ATD, or interference with or damage to any electronic systems or devices;
(ii) errors, omissions or inaccuracies contained in any information published on the ATD or supplied by NBN to you via email or otherwise;
(iii) arising from any error, deficiency or failure in the functionality or performance of the ATD; or
(iv) as a result of any act committed by another person in connection with your use of the ATD;
(b) arising from any circumstance beyond its control; or
(c) otherwise under or in connection with this agreement.
7. LICENCE TERM AND TERMINATION
7.1 Licence Term. Subject to the terms and conditions of this agreement, the Licence is perpetual (Licence Period).
7.2 Your right to terminate. You may terminate this agreement at any time by permanently deleting the ATD from all your devices.
7.3 Automatic termination. In addition to any other circumstances or events leading to automatic termination of the Licence set out in this agreement, the Licence terminates immediately upon termination of the agreement between NBN and its licensor in respect of the software of which the ATD forms part. NBN will provide written notice to you of such termination.
7.4 Obligations on termination. Upon termination of the Licence grant or termination of this agreement, you must:
(a) cease all use of the ATD;
(b) uninstall and destroy all copies of the ATD; and
(c) at NBN's option, destroy or return to NBN the Documentation.
NBN reserves the right to require you to show satisfactory proof that all copies of the ATD and the Documentation have been uninstalled and destroyed (as applicable). Accrued rights or remedies of either party are not affected by the termination of this agreement or the Licence.
8. VARIATION OF TERMS
8.1 NBN may vary terms. NBN reserves the right to revise and amend this agreement in its discretion by publishing the amended agreement (or a link to the amended agreement) on the page or pages of NBN's website from which the ATD can be downloaded (ATD webpage). You agree that you will monitor the ATD webpage from time to time during the term of this agreement. NBN may, in its discretion, take additional steps to notify you of any amendment to the terms of this agreement.
8.2 Deemed agreement to variation. Your continued use of the ATD after an amendment to the terms of this agreement will mean that you agree to that amendment. You must stop using the ATD if you do not agree to any such amendment.
9. GENERAL
9.1 Force majeure. Neither party is liable for any failure to perform or delay in performing its obligations under this agreement if that failure or delay is due to anything beyond that party’s control. If that failure or delay exceeds 60 days, either party may terminate this agreement with immediate effect by giving notice to the other party.
9.2 Governing law. This agreement is governed by the laws of the State of New South Wales, Australia, and the parties submit irrevocably and unconditionally to the exclusive jurisdiction of the courts of that State.
9.3 Assignment. You may not assign your rights under this agreement, nor attempt or purport to do so.
9.4 Waiver. A waiver by a party of a right under this agreement will only be effective if it is in writing signed by the party exercising that right. Such waiver will apply only in respect of a particular instance or event and does not constitute a waiver of a different or subsequent right.
9.5 Entire agreement. The terms of this agreement constitute the entire agreement between the parties with respect to the subject matter of this agreement, and replace all prior agreements, statements, representations or understandings between the parties.