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Altra Dr Migrate
Licence Agreement
Version 5.0 | Effective 1 July 2024
1.1 Altra Technologies Pty Ltd (ACN 676 691 035) (us, we) provide software known as Dr Migrate.
1.2 Dr Migrate enables organisations to determine and understand the complexity, cost and overall parameters for the migration of information technology infrastructure physically located at their premises or in a data centre to an Azure cloud-based solution.
2.1 These Licence Agreement terms (Terms) govern access to and use of Dr Migrate by individuals and organisations who purchase, or otherwise use, Dr Migrate (Licensee, you, your).
2.2 By deploying, accessing, or using Dr Migrate, or requesting us, your Partner or another party to do so on your behalf, you accept these Terms as a binding contract (whether on behalf of yourself or a legal entity you represent).
2.3 You are esponsible for:
(a) identifying and authenticating Personnel who are authorised to access and use Dr Migrate;
(b) approving access by such authorised Personnel;
(c) controlling against unauthorised access by any Personnel; and
(d) the acts and omissions of such Personnel in connection with their access to and use of Dr Migrate.
2.4 If you do not accept and comply with these Terms, you may not access or use Dr Migrate or the PowerBI Dashboard.
3.1 Where you purchase Dr Migrate from a Partner:
(a) the pricing of Dr Migrate is independently determined by your Partner; and
(b) unless otherwise agreed, you will be invoiced by, and all payments must be made directly to, your Partner.
3.2 Where you purchase Dr Migrate from a Partner, we are not responsible for:
(a) the acts or omissions of your Partner;
(b) any additional obligations your Partner may have to you;
(c) any representation, warranties or other commitments made to you by your Partner without our prior written consent;
(d) products or services that your Partner sells or supplies to you that are not provided by us; or
(e) any refund or reimbursement of any amounts paid by you, including on termination of these Terms.
4.1 These Terms take effect and bind the Parties from the date Dr Migrate is deployed in your environment.
4.2 These Terms will continue to apply to, and govern your access to and use of, Dr Migrate and the PowerBI Dashboard until the later of:
(a) when Dr Migrate is removed from your environment; or
(b) when these Terms are terminated in accordance with clause 21.
5.1 Subject to payment of all applicable Licence Fees, we hereby grant you a non-transferrable, non-exclusive, royalty-free licence to access and use Dr Migrate for the Permitted Purposes during the Licence Duration and strictly in accordance with these Terms.
5.2 Where you have had the benefit of a free Dr Migrate trial or assessment period and Dr Migrate remains deployed in your environment after that period has expired then, regardless of which version of Dr Migrate was originally deployed in your environment and unless otherwise agreed, we may either:
(a) convert you to a different version of Dr Migrate (which may have reduced accessibility, functionality and features) and subsequently convert you back to a full functionality version if agreed; or
(b) continue to grant you access to the existing version of Dr Migrate deployed in your environment,
and you will be charged the Licence Fee for the applicable version of Dr Migrate.
6.1 You must pay the Licence Fees for Dr Migrate directly to us, through the Microsoft Azure Marketplace or to your Partner, as applicable.
6.2 The Licence Fees payable will be based on the highest number of unique servers (virtual and physical) discovered and/or processed by Dr Migrate.
6.3 Licence Fees will be payable for so long as Dr Migrate remains deployed in your environment and until all resource instances of Dr Migrate have been removed from your environment, notwithstanding that you may have paused, stopped or suspended any of the servers in your environment.
6.4 If your use of Dr Migrate (including in relation to the length of use and number of servers discovered or processed) exceeds what is stated in your order then you may be charged for that extra use for the entire Licence Duration. Alternatively, at our discretion we may restrict your excess use.
6.5 We reserve the right to carry out reconciliations of the actual number of servers discovered or processed and your actual length of use of Dr Migrate, and what has been paid for by you.
6.6 Where you order Dr Migrate for a particular period (Order Period) and/or for a particular number of servers, then that order represents a minimum commitment by you (Minimum Commitment).
6.7 You acknowledge and agree that, even if:
(a) you reduce the number of servers that Dr Migrate discovers and/or processes below the number specified in your order;
(b) you terminate your Dr Migrate licence during the Order Period;
(c) you remove Dr Migrate from your environment during the Order Period; or
(d) your Dr Migrate licence or these Terms are terminated by us in accordance with these Terms during the Order Period,
you remain liable for all Licence Fees relating to the Minimum Commitment and no refund or credit will be offered or payable to you.
6.8 At the end of the Order Period your Dr Migrate licence will automatically renew on a monthly basis and you will be charged the applicable Licence Fees until the end of the month in which you:
(a) place a new Dr Migrate order; or
(b) terminate your Dr Migrate licence and these Terms in accordance with clause 21.1.
7.1 Subject to your compliance with these Terms, and provided that the version of Dr Migrate deployed in your environment has the required functionality, we permit you, on a non-exclusive basis, during the Licence Duration to:
(a) input de-identified Licensee Data into Dr Migrate;
(b) access and use the PowerBI Dashboard;
(c) use any results displayed on the PowerBI Dashboard, or otherwise produced by Dr Migrate, based on Licensee Data; and
(d) utilise Dr Migrate to inform the execution of migrations to a cloud-based solution,
each a Permitted Purpose.
8.1 You must comply with any reasonable directions as notified by us to you from time to time in relation to your access to and use of Dr Migrate and the PowerBI Dashboard.
8.2 You must not (and you must ensure that your Personnel and Affiliates do not) do, or attempt to do, any of the following:
(a) allow access to Dr Migrate or the PowerBI Dashboard by anyone other than properly authorised Personnel;
(b) sell, distribute or transfer any part of your right to access and use Dr Migrate or the PowerBI Dashboard;
(c) sublicense your right to access and use Dr Migrate wihtout our express permission;
(d) use Dr Migrate or the PowerBI Dashboard in any way or for any purpose other than as specifically contemplated by these Terms;
(e) download, modify, adapt, translate, de-compile, disassemble, copy, reproduce, create, reverse engineer or reverse compile Dr Migrate or the PowerBI Dashboard (or any part of them);
(f) interfere with, disrupt or alter any Dr Migrate or PowerBI Dashboard functionality;
(g) copy, share, distribute, alter, customise, modify or create derivative works of Dr Migrate or the PowerBI Dashboard;
(h) circumvent or break any encryption, decryption or other security device or technology measure(s) contained in Dr Migrate or the PowerBI Dashboard or that control access to or use of Dr Migrate or the PowerBI Dashboard;
(i) tamper with, hinder the operation of or make unauthorised modifications to Dr Migrate or the PowerBI Dashboard;
(j) access or discover the underlying algorithms or data models used to generate the PowerBI Dashboard; or
(k) use Dr Migrate or the PowerBI Dashboard for any unlawful purpose.
9.1 Subject to clause 9.3, Standard Support for Dr Migrate will be provided to you. Premium Support for Dr Migrate will only be provided to you if you have purchased Premium Support.
9.2 The details and terms of Standard Support and Premium Support are provided in our Support – Scope & Responsiveness document available at www.altra.cloud/legal.
9.3 If you are a Partner:
(a) Standard Support and Premium Support under these Terms:
(i) will only be provided to you in your capacity as a service provider to your end customers; and
(ii) will not be provided to reseller Partners;
(b) a separate Premium Support package must be purchased for each end customer to whom you will be providing support.
9.4 Regardless of which version of Dr Migrate was purchased by you, or which level of support applies to you, unless expressly agreed otherwise, only the following will be supported:
(a) the current release of that version of Dr Migrate; and
(b) the immediately preceding release of that version of Dr Migrate for 60 days after the release date of the current release.
9.5 To the extent permitted by law, all other support and warranties relating to previous releases of Dr Migrate end on the date of a new release.
9.6 Unless expressly agreed otherwise, regardless of which level of support applies to you, upgrades to, and new versions of, Dr Migrate are not included in the Licence Fees and will be at your cost.
9.7 We may, in our absolute discretion, issue new releases of, update, bug fix and/or patch Dr Migrate as we deem necessary, provided that such releases, updates, bug fixes or patches do not materially adversely affect the environment in which Dr Migrate is deployed.
9.8 The provision of support, releases, updates, bug fixes and patches is conditional upon you providing, or ensuring that we have, the required level of access to the environment(s) in which Dr Migrate has been deployed.
10.1 You are solely responsible (at your own cost) for:
(a) providing all equipment, software and internet access necessary to access and use Dr Migrate and the PowerBI Dashboard, unless otherwise agreed in writing;
(b) ensuring that your IT environment (and the IT environment of your users) interfaces with and is compatible with Dr Migrate and the PowerBI Dashboard;
(c) the security and use of log-in details and access credentials, and all access to and use of Dr Migrate and the PowerBI Dashboard; and
(d) creating and storing backups of Licensee Data.
10.2 You must:
(a) provide us with all reasonable assistance and cooperation as reasonably requested by us from time to time in the provision of Dr Migrate, including by providing access to relevant platforms and systems upon which Dr Migrate is deployed and any Licensee Data;
(b) ensure that any information that you provide when you or your Partner deploys Dr Migrate through the Microsoft Azure Marketplace is, and remains, accurate, current and complete;
(c) immediately report any security violations or misuse of Dr Migrate to us;
(d) not alter, change, remove or obscure any notices or other indications (including copyright notices) as to the ownership of Dr Migrate;
(e) act reasonably and in good faith in exercising any right, remedy, discretion or obligation under these Terms, at law or otherwise; and
(f) comply at all times with applicable laws, protocols, policies and guidelines issued by us from time to time.
10.3 If any delay or failure by us to comply with our obligations under these Terms is caused or contributed to by any failure by you or your Personnel to comply with your obligations under these Terms, then we will not be responsible for the delay or failure.
10.4 We may monitor your use of Dr Migrate and the PowerBI Dashboard and compliance with these Terms either:
(a) through the Microsoft Azure Marketplace; or
(b) at reasonable periods (subject to us providing you with reasonable notice).
11.1 We acknowledge that, as between the Parties, all right, title and interest in the Licensee Data is owned by you.
11.2 You hereby grant to us (and our Personnel) a non-exclusive, royalty-free, worldwide licence to access, use, modify, reproduce and perform all acts with respect to Licensee Data, as required to perform our obligations or as otherwise permitted under these Terms.
11.3 We will not use or disclose any Licensee Data other than in accordance with these Terms and the Microsoft Azure Marketplace terms (if applicable).
11.4 You acknowledge that your Partner, and any other parties with whom you have an agreement, may also have access to your Licensee Data and that it is the obligation of such parties to handle that information in accordance with their own privacy and security policies.
11.5 You warrant that:
(a) you have all necessary rights and consents to use the Licensee Data in connection with Dr Migrate and to permit us to use the Licensee Data in accordance with these Terms;
(b) the Licensee Data and its use by us in the manner permitted by these Terms will not breach any laws or the rights of any person;
(c) the Licensee Data does not contain any personal or sensitive information, information which could be used to identify any individual or any information or material which is unlawful; and
(d) you will not, and you will ensure that your Personnel do not, use Dr Migrate to transmit any Malicious Code.
12.1 You agree that we may:
(a) collect and compile diagnostic, statistical, performance, technical, usage and related information regarding your use of Dr Migrate and the PowerBI Dashboard (Dr Migrate Data); and
(b) use Dr Migrate Data to:
(i) monitor your use of Dr Migrate and the PowerBI Dashboard;
(ii) monitor your compliance with your obligations under these Terms;
(iii) enable discussions with your Partner and other parties who may be involved in providing Dr Migrate related services to you or deploying an Azure cloud-based solution to you;
(iv) improve Dr Migrate; and
(v) for internal business purposes.
12.2 You also agree that we may use Dr Migrate Data on a de-identified anonymised basis, without cost and at our discretion:
(a) to publicise, market and sell Dr Migrate; and
(b) to prepare case studies, articles, reports and research, which may be made publicly available in compliance with applicable law;
(c) to supply Dr Migrate and related products and services to our partners and clients; and
(d) for any other purposes permitted by applicable law.
12.3 All rights, including Intellectual Property Rights, title and interest in Dr Migrate Data belong to and are retained solely by us.
13.1 You acknowledge that any log-in details and access credentials used to access Dr Migrate and the PowerBI Dashboard are confidential and must ensure that this information is kept secure from unauthorised access, use or modification.
13.2 You are solely responsible for any use (or misuse) of Dr Migrate and the PowerBI Dashboard arising from a failure to keep information secure in accordance with clause 13.1.
14.1 We are the owner or authorised licensee of all Intellectual Property Rights:
(a) currently subsisting in Dr Migrate and the PowerBI Dashboard;
(b) in any augmentations, modifications, improvements or enhancements to, or derivatives of, Dr Migrate and the PowerBI Dashboard;
(c) in any materials (including software, documents, results, information, data and business processes):
(i) created or developed by us (whether or not for you, us, your Partner or another party) through the use of Dr Migrate or the PowerBI Dashboard, and otherwise in the performance of these Terms; or
(ii) created or developed by you or on your behalf through the use of Dr Migrate and the PowerBI Dashboard,
collectively and separately referred to in these Terms as Dr Migrate IP.
14.2 Where Dr Migrate IP is not already owned by us it will vest in and be exclusively owned by us immediately upon its creation.
14.3 We grant to you a non-transferrable, non-exclusive, royalty-free, revocable licence to use Dr Migrate IP in connection with your use of Dr Migrate during the Licence Duration.
14.4 Nothing in these Terms assigns or transfers ownership of any Dr Migrate IP to you, your Partner or any other party.
14.5 You must promptly notify us in writing if you become aware that any party is infringing or misappropriating any Dr Migrate IP or any of our other Intellectual Property Rights.
15.1 Each Party agrees to keep confidential, and not to use or disclose, other than as permitted in these Terms, any Confidential Information of the other Party, except:
(a) as required by law, a regulatory authority, or a stock exchange, provided that it gives the other Party written notice prior to disclosure;
(b) with the prior written consent of the Party who supplied the information;
(c) if the information is in the public domain or comes into the public domain other than as a result of breach of these Terms;
(d) if the recipient Party already knew or had, on a non-confidential basis, the information before receiving it; or
(e) if the recipient Party independently developed or acquired the information, without a breach of these Terms or other breach of confidence.
15.2 Each Party agrees to take all prudent steps, including maintaining effective information security measures, to protect the Confidential Information of the other Party from unauthorised access, use, copying or disclosure.
15.3 Each Party must only use Confidential Information of the other Party for the purpose for which it was disclosed in connection with these Terms.
16.1 If a Dispute arises, neither Party may commence any proceedings relating to the Dispute unless it has first complied with this clause 16, except where a Party seeks urgent interlocutory relief.
16.2 A Party claiming a Dispute has arisen must give written notice to the other Party specifying the nature of the Dispute.
16.3 On receipt of that notice, the Parties must use all reasonable endeavours to resolve the Dispute by discussion, consultation, negotiation or other informal means.
16.4 If the Dispute is not resolved within 15 business days of notice being given pursuant to clause 16.2 (or within such further period agreed in writing by the Parties), the applicable Dispute resolution process below will be followed by the Parties.
16.5 While the relevant Dispute resolution procedure is being followed, both Parties must continue to fulfil their obligations under these Terms.
16.6 If you are incorporated in Australia or New Zealand, the Dispute will be referred to, and finally resolved by, arbitration in Melbourne, Australia in accordance with the Australian Centre for International Commercial Arbitration (ACICA) Expedited Arbitration Rules for the time being in force, which rules are deemed to be incorporated by reference in this clause 16. The number of arbitrators will be one. The language of the arbitration will be English. The award of the arbitrator will be final and binding on the Parties.
16.7 If you are not incorporated in Australia or New Zealand, the Dispute will be referred to, and finally resolved by, arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (SIAC Rules) for the time being in force, which rules are deemed to be incorporated by reference in this clause 16. The number of arbitrators will be one. The language of the arbitration will be English. The award of the arbitrator will be final and binding on the Parties.
16.8 THE PARTIES EXPRESSLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL FOR THE PURPOSES OF LITIGATING DISPUTES UNDER THESE TERMS.
16.9 Each Party agrees that any Dispute must be brought in the respective Party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff or similar proceeding (Class Action).
16.10 The Parties expressly waive any ability to maintain any Class Action in any forum in connection with any Dispute. An arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a Party to the arbitration.
16.11 Any claim that all or part of this Class Action waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
17.1 We warrant that Dr Migrate will substantially conform to any applicable product and service specifications that we provide to you in writing.
17.2 The warranty in clause 17.1 applies only to the benefit of the party who uses Dr Migrate for normal end use, or on whose behalf Dr Migrate is used by a Partner or another party.
17.3 The warranty in clause 17.1 will not apply in relation to any defects or issues resulting from or attributable to:
(a) any failure to comply with any Dr Migrate documentation or other express instructions;
(b) a malfunction of your hardware, network or cloud environment;
(c) programs, data, equipment, systems, software or hardware not licensed or provided by us which are used by you in conjunction with Dr Migrate;
(d) any act or omission by you, your Personnel, your Partner or any third party in breach of these Terms;
(e) use of Dr Migrate or the PowerBI Dashboard after the end of the Licence Duration; or
(f) a Force Majeure Event.
17.4 Your sole and exclusive remedy, and our sole liability, under or in connection with a breach of the warranty in clause 17.1, will be the re-supply of Dr Migrate in accordance with the warranty in clause 17.1, or if we determine that this is commercially impracticable, termination of these Terms and a refund of any unused pre-paid Licence Fees for the remaining period of your Dr Migrate purchase.
17.5 TO THE EXTENT PERMITTED BY LAW AND SUBJECT TO ANY NON-EXCLUDABLE TERMS AND ANY EXPRESS WARRANTIES IN THESE TERMS, DR MIGRATE AND THE POWERBI DASHBOARD ARE PROVIDED BY US “AS IS”. TO THE FULLEST EXTENT PERMITTED BY LAW, WE EXCLUDE ALL WARRANTIES, REPRESENTATIONS, IMPLIED TERMS AND GUARANTEES NOT EXPRESSLY STATED IN THESE TERMS, INCLUDING ANY WARRANTY OR REPRESENTATION THAT DR MIGRATE OR THE POWERBI DASHBOARD WILL BE FIT FOR ANY PARTICULAR PURPOSE OR WILL BE ERROR-FREE OR UNINTERRUPTED. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE OUTPUTS OF DR MIGRATE OR ANY RESULTS OF USE OF DR MIGRATE.
17.6 IN PARTICULAR, AND WITHOUT LIMITING CLAUSE 17.5, WE DO NOT TAKE ANY RESPONSIBILITY FOR, DO NOT SUPPORT, AND ARE NOT LIABLE IN ANY WAY TO YOU FOR ANY PARTNER OR THIRD PARTY SERVICES, PRODUCTS, PLATFORMS OR ADD-INS (OTHER PARTY SERVICES) OR FOR ANY FAILURE OF DR MIGRATE OR THE POWERBI DASHBOARD CAUSED BY SUCH OTHER PARTY SERVICES (INCLUDING ANY CHANGES TO ANY SUCH OTHER PARTY SERVICES).
17.7 We will use commercially reasonable efforts to ensure that Dr Migrate is free of any Malicious Code.
17.8 For the avoidance of doubt, nothing in these Terms is intended to exclude any guarantees which by law cannot be excluded or modified. If we are liable for breach of any guarantee or warranty that cannot be excluded or modified by law, then to the extent permitted by law, our liability for that breach will be limited to re-supplying Dr Migrate in accordance with the respective guarantee.
17.9 You acknowledge and agree that:
(a) any use of, or reliance on, information which is made available to you through Dr Migrate and the PowerBI Dashboard is undertaken entirely at your own risk;
(b) it is your responsibility to consider which (if any) recommendations provided by Dr Migrate suit your circumstances and to determine whether and how to implement any recommendations;
(c) Dr Migrate recommendations, as well as costs and savings estimates, are generated at a point in time based on the data ingested at the time and that if that data changes, then the results will change;
(d) costs and savings estimated generated by Dr Migrate are estimates only and are not guaranteed results and actual results may vary and will depend on your circumstances, including how any Dr Migrate recommendations are implemented by your and other factors (such as currency exchange rates); and
(e) we do not control the transfer of data over the internet and that access to Dr Migrate and the PowerBI Dashboard may be subject to limitations, delays and other problems inherent in the use of the internet.
18.1 You agree to indemnify, hold harmless and (at our option) defend us and our Affiliates and each of our directors, officers, agents and employees, from and against any Loss (including Loss arising in connection with third party claims) suffered, paid or incurred by us arising out of or in connection with:
(a) any breach by you or your Personnel of these Terms, except to the extent that such Loss is caused or contributed to by us; or
(b) any claim that our use of Licensee Data infringes the rights (including Intellectual Property Rights) of any other person; or
(c) any claim relating to Loss suffered as a result of your reliance on any information or results provided through Dr Migrate or the PowerBI Dashboard.
19.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER WE NOR OUR AFFILIATES WILL BE LIABLE TO YOU, YOUR PERSONNEL OR TO ANY OTHER PARTY FOR ANY CONSEQUENTIAL LOSS ARISING FROM OR RELATING TO DR MIGRATE OR THESE TERMS, WHETHER OR NOT FORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHER CAUSE OF ACTION.
19.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL OUR AND OUR AFFILIATES’ MAXIMUM CUMULATIVE LIABILITY TO YOU (INCLUDING TO YOUR PERSONNEL) ARISING OUT OF OR IN CONNECTION WITH DR MIGRATE OR THESE TERMS EXCEED THE AMOUNTS PAID BY YOU FOR DR MIGRATE IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE ON WHICH THE LIABILITY AROSE, UP TO A MAXIMUM OF USD$100,000.
19.3 Nothing in these Terms limits or excludes the liability of a Party for:
(a) personal injury or death, or damage to or loss of real or personal property;
(b) breach of clause 6; or
(c) acts of fraud, misrepresentation or wilful misconduct.
20.1 IT IS YOUR RESPONSIBILITY TO EXAMINE AND TEST DR MIGRATE AND THE POWERBI DASHBOARD AFTER THEY HAVE BEEN DEPLOYED IN YOUR ENVIRONMENT TO DETERMINE WHETHER THEY ARE ACCEPTABLE TO YOU AND ADEQUATE AND SAFE FOR YOUR NEEDS AND USES.
20.2 YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR YOUR USE OF AND RELIANCE ON DR MIGRATE AND THE POWERBI DASHBOARD.
20.3 YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS AND THAT THE LICENCE IS CONDITIONED ON YOUR REPRESENTATION TO US THAT YOU HAVE ACCEPTED AND AGREE TO BE BOUND BY THESE TERMS.
21.1 Where not inconsistent with any other agreement relating to Dr Migrate (including a statement of work, master services agreement, partner agreement, work order or purchase order with us or an agreement you have with your Partner or other party in relation to Dr Migrate), and subject to clause 6.7, you may terminate your Dr Migrate licence and these Terms by:
(a) providing us notice in writing; and
(b) removing Dr Migrate from your environment(s).
21.2 We may terminate your Dr Migrate lience and these Terms and/or suspend your access to and use of Dr Migrate and the PowerBI Dashboard:
(a) if you have not paid a correctly rendered and undisputed invoice issued by us, by your Partner, or through the Microsoft Azure Markeplace (as applicable) by its payment due date; or
(b) immediately if you breach these Terms.
22.1 Upon the termination of these Terms and your Dr Migrate licence:
(a) your licence to access and use Dr Migrate will immediately cease;
(b) we will be entitled to suspend your access to and use of Dr Migrate; and
(c) you must remove Dr Migrate from your environment(s).
22.2 Despite any other provision of these Terms, any obligations which are expressed to or, by their nature, survive termination of these Terms will continue to the benefit of and be enforceable by the Parties.
23.1 Where you have purchased Dr Migrate directly from us, you agree to permit us to associate all relevant Microsoft attributions with ourselves in your systems.
23.2 Where you have purchased Dr MIgrate through your Partner, you agree to permit your Partner to associate all relevant Microsoft attributions with themselves in your systems.
23.3 The actions that may be taken to associate Microsoft attributions under this clause 23 may include us or your Partner (as relevant) enabling ourselves or themselves as your DPOR (Digital Partner of Record) and/or enabling us or them to link or associate a Microsoft Partner ID (through PAL (Partner Admin Link) or CPOR (Claiming Partner of Record)) to your Microsoft licences, products and consumption through subscription(s).
24.1 Subject to compliance with this clause 24, a Party will not be liable for any delay or non-performance of its obligations (other than an obligation to pay money) under these Terms to the extent that the delay or non-performance is caused or contributed to by a Force Majeure Event.
24.2 The affected Party must:
(a) do all reasonable things to avoid, minimise the duration of, and mitigate the consequences of the Force Majeure Event;
(b) promptly notify the other Party of the occurrence of the Force Majeure Event, providing full details of the Force Majeure Event, an estimate of its likely duration, the impacted obligations and the extent to which performance is likely to be affected, and the steps taken by the affected party under clause 24.2(a); and
(c) when the Force Majeure Event ends, recommence performance of the affected obligations and promptly notify the other Party.
25.1 You grant to us and our Affiliates the right to use your company’s name and logo for promotional purposes, including on websites, in press releases and in advertising and promotional material, unless indicated otherwise by you in written notice to us.
26.1 The following clauses apply if you are a U.S. Government End User.
26.2 Dr Migrate is a “commercial item,” as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995).
26.3 Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire Dr Migrate with only those rights set forth in these Terms.
26.4 Dr Migrate (including the PowerBI Dashboard and Dr Migrate related documentation) is provided to U.S. Government End Users:
(a) only as a commercial end item; and
(b) only pursuant to these Terms.
26.5 With respect to end-users that are of any other government, similar conditions are likewise agreed upon between the Parties, to the effect that you hereby acknowledge that Dr Migrate constitutes a pre-existing commercial product developed at private expense and provided to you only in accordance with these Terms and you have no rights not explicitly granted by us under these Terms.
27.1 You represent and warrant that you will not:
(a) export, re-export or otherwise make available or provide access to or use of Dr Migrate or the PowerBI Dashboard to any party that is:
(i) listed on:
(A) any of the sanctions or designated persons or parties lists administered and enforced by the U.S. Treasury Department’s Office of Foreign Assets Control, the U.S. Commerce Department or the U.S. State Department;
(B) the European Commission’s “Consolidated list of persons, groups and entities subject to EU financial sanctions”;
(C) the United Kingdom HM Treasury’s Office of Financial Sanctions Implementation’s “Consolidated List of Financial Sanctions Targets in the UK”; or
(D) such other applicable list maintained by a relevant government agency; or
(ii) located in (or a national of) a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; or
(b) permit any of your Personnel to access or use Dr Migrate or the PowerBI Dashboard in violation of any applicable export control or economic sanctions laws.
28.1 Order of precedence: In the case of any conflict or inconsistency between these Terms and the terms of any other agreement between the Parties (including a statement of work, master services agreement, partner agreement, work order or purchase order) then these Terms will take precedence in relation to the subject matter of these Terms.
28.2 Waiver: No waiver of a right or remedy under these Terms is effective unless it is in writing and signed by the Party granting it.
28.3 Rights cumulative: Except as expressly stated otherwise in these Terms, the rights of a Party under these Terms are cumulative and are in addition to any other rights of that Party.
28.4 Consents: Except as expressly stated otherwise in these Terms, a Party may conditionally or unconditionally give or withhold any consent to be given under these Terms and is not obliged to give its reasons for doing so.
28.5 Further steps: Each Party must promptly do whatever the other Party reasonably requires of it to give effect to these Terms and to perform its obligations under it.
28.6 Governing law and jurisdiction: These Terms are governed by and are to be construed in accordance with the laws applicable in the State of Victoria, Australia.
28.7 Assignment: A Party must not assign or deal with any right under these Terms without the prior written consent of the other Party. Any purported dealing in breach of this clause 28.7 is of no effect.
28.8 Affiliates: In these Terms references to you or to us include respectively any of your, or our, Affiliates.
28.9 Relationship of Parties: These Terms are not intended to create a partnership, joint venture or agency relationship between the Parties.
In these Terms:
Affiliate means any person or entity that controls, is controlled by, or is under common control with a Party, (where “control” means ownership of fifty percent (50%) or more of the outstanding voting securities) is, for the purposes of these Terms, an affiliate of that Party.
Confidential Information of a Party means in respect of a Party (disclosing Party) any information obtained by the other Party from the disclosing Party, or from any Personnel or Affiliate of the disclosing Party, that is by its nature confidential, is designated as confidential by the disclosing Party or that the other Party knows or ought reasonably to know is confidential.
Consequential Loss means any consequential, indirect, special, incidental, reliance or exemplary losses or damages, including:
(a) loss of revenue, profit, anticipated profit, investment, production, use, opportunity, savings, anticipated savings, contracts or goodwill;
(b) costs of procurement of substitute goods, deliverables, services, rights or technology or wasted overheads;
(c) loss, damage or corruption of data or interruption in use or availability of data;
(d) any loss not arising naturally (that is, according to the usual course of things) from the relevant breach, act or omission,
even if a Party had been advised of the possibility of such losses or damages and whether or not such loss may reasonably be supposed to have been in the contemplation of the Parties, at the time they entered into these Terms, as the probable result of the relevant breach, act or omission.
Dispute means any dispute, controversy or claim arising out of, relating to or in connection with these Terms, including any question regarding their existence, validity, termination, breach, enforcement or interpretation.
Force Majeure Event means an event out of a Party’s reasonable control, such as an act of God, fire, lightning, earthquake, cyclone, flood, subsidence or other natural disaster, pandemic or epidemic, national emergency, insurrection, civil disorder, war, invasion, act of foreign enemies, hostilities (whether war is declared or not), military operations or act of terrorism, shortage of power or shortage of material from a normal source of supply and excludes any act or omission of a Party.
Intellectual Property Rights means any rights normally covered with this term and includes existing and future copyrights, rights in designs, patents, trademarks all rights in any applications or registrations of those rights whether registered or unregistered (and whether registrable or not) and existing anywhere in the world.
Licence Duration means the period referred to in clause 4.
Licence Fees means the fees payable by you for the provision of Dr Migrate.
Licensee Data means any and all data, materials, content or information entered into, transmitted through, or stored in Dr Migrate by you, or otherwise made available or accessible to us by you in connection with Dr Migrate, and any reports generated for you by Dr Migrate.
Loss means loss, damage, claim, liability, charge, expense, outgoing or cost (including all legal and other professional costs on a full indemnity basis) of any nature or kind.
Malicious Code means code, files, scripts, agents or programs designed or intended to do harm, such as disabling or impeding the normal operation of, or providing unauthorised access to, networks, systems, software or environments (including viruses, worms, time bombs and Trojan horses).
Mirosoft Azure Marketplace means Microsoft’s commercial marketplace through which customers can purchase solutions from independent software vendors, including us.
Parties means us and you and Party means either us or you, as the context requires.
Partner means a person or entity authorised by us to sell Dr Migrate to end users.
Personnel means, in relation to an entity, that entity’s directors, officers, employees, agents, service providers and contractors and includes directors, officers, employees and agents of that Party’s contractors.
PowerBI Dashboard means that part of Dr Migrate which displays the results produced by Dr Migrate using Licensee Data that is hosted within your environment.
U.S. Government End User means any agency or entity of the government of the United States.
Unless expressed to the contrary, in these Terms:
(a) includes means includes without limitation;
(b) a reference to:
(i) a person includes a partnership, a joint venture, an unincorporated association, a corporation and a government or statutory body or authority;
(ii) a person includes the person’s legal personal representatives, successors, assigns and persons substituted by novation;
(iii) these Terms include schedules and annexures to these Terms; and
(c) headings do not affect the interpretation of these Terms.