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Dr Migrate Express
Licence Agreement
Version 1.0 | Effective 21 February 2023
1.1 The LAB3 Group (being LAB3 Pty Ltd and LAB3 NZ Limited) (us, we) has developed a software-as-a-service solution known as Dr Migrate Express.
1.2 Dr Migrate Express 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 Express by individuals or organisations (Licensee, you, your).
2.2 By accessing or using Dr Migrate Express, or requesting us or a third party (such as Microsoft) 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 Where these Terms are accepted on behalf of a legal entity, that legal entity is responsible for:
(a) identifying and authenticating Personnel who are authorised to access and use Dr Migrate Express;
(b) approving access by such authorised Personnel; and
(c) controlling against unauthorised access by any Personnel.
2.4 If you do not accept and comply with these Terms, you may not access or use Dr Migrate Express.
3.1 These Terms take effect and bind the Parties from the date you are given access to Dr Migrate Express.
3.2 These Terms will continue to apply to, and govern your use of, Dr Migrate Express until the later of:
(a) when your access to Dr Migrate Express has been suspended or removed; or
(b) until these Terms are terminated in accordance with clause 18.
3.3 Unless otherwise agreed, the Licence Duration will be 90 days.
3.4 We will delete all Licensee Data 30 days from the last day of the of the Licence Duration and that Licenseee Data will no be recoverable by us or you once deleted.
4.1 We hereby grant you a non-transferrable, non-exclusive, royalty-free licence to access and use Dr Migrate Express strictly in accordance with these Terms.
5.1 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 Express.
5.2 You must not (and you must ensure that your Personnel do not) do, or attempt to do, any of the following:
(a) allow access to Dr Migrate Express by anyone other than properly authorised Personnel;
(b) sell, sub-licence, distribute or transfer any part of your right to access and use Dr Migrate Express;
(c) use Dr Migrate Express in any way or for any purpose other than as specifically contemplated by these Terms;
(d) download, modify, adapt, translate, de-compile, disassemble, copy, reproduce, create or reverse engineer or reverse compile Dr Migrate Express (or any part of it);
(e) circumvent or break any encryption, decryption or other security device or technology measure(s) contained in Dr Migrate Express or that control access to or use of Dr Migrate Express;
(f) interfere with or disrupt Dr Migrate Express;
(g) copy, share, distribute, alter, customise, modify or create derivative works of Dr Migrate Express;
(h) tamper with, hinder the operation of or make unauthorised modifications to Dr Migrate Express; or
(i) use Dr Migrate Express for any unlawful purpose.
6.1 During the Licence Duration we may, in our absolute discretion, update and/or patch Dr Migrate Express as we deem necessary.
6.2 You agree that the version of Dr Migrate Express to which you are granted a licence under these Terms will be the version of Dr Migrate Express which is at that time generally made available by us.
7.1 You are solely responsible (at your own cost) for:
(a) providing all equipment, software and internet access necessary to access and use Dr Migrate Express;
(b) the security and use of log-in details and access credentials, and all access to and use of Dr Migrate Express; and
(c) creating and storing backups of Licensee Data.
7.2 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 Express, including by providing access to Licensee Data;
(b) immediately report any security violations or misuse of Dr Migrate Express to us;
(c) not alter, change, remove or obscure any notices or other indications (including copyright notices) as to ownership of Dr Migrate Express;
(d) act reasonably and in good faith in exercising any right, remedy, discretion or obligation under these Terms, at law or otherwise; and
(e) comply at all times with applicable laws, protocols, policies, guidelines and any reasonable directions issued by us from time to time.
7.3 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.
7.4 We may audit your use of Dr Migrate Express at any time (subject to us providing you with reasonable notice) and you agree to comply with our audit requests and audit processes.
7.5 We may suspend your access to Dr Migrate Express at any time if required under law or if we reasonably consider that you are in breach of these Terms.
8.1 We acknowledge that, as between the Parties, all right, title and interest in the Licensee Data is owned by you.
8.2 You hereby grant to us (and our Personnel) a non-exclusive, royalty-free, worldwide licence to access, use, modify and reproduce and perform all acts with respect to the Licensee Data, as required to perform our obligations or as otherwise permitted under these Terms.
8.3 We will maintain appropriate technical safeguards for the protection of the availability, confidentiality and integrity of the Licensee Data and will not use or disclose any Licensee Data other than in accordance with these Terms.
8.4 You acknowledge that Microsoft will also have access to your Licensee Data and the results of your use of Dr Migrate Express and that it is Microsoft’s obligation to handle that information in accordance with its own privacy and information security policies.
8.5 You acknowledge that it is your responsibility to nominate your preferred region for Dr Migrate Express (Nominated Region) and to confirm your Nominated Region when given access to Dr Migrate Express.
8.6 You also acknowledge that the Licensee Data will be transferred to and stored in the Nominated Region.
8.7 You warrant that:
(a) you have all necessary rights and consents to use the Licensee Data in connection with Dr Migrate Express 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 Express to transmit any Malicious Code.
9.1 You agree that we may:
(a) collect and compile diagnostic, statistical, performance, technical, usage and related information regarding your use of Dr Migrate Express (Dr Migrate Data); and
(b) use Dr Migrate Data to:
(i) monitor your use of Dr Migrate Express;
(ii) monitor your compliance with your obligations under these Terms;
(iii) enable discussions with third parties who may be involved deploying an Azure cloud-based solution for you;
(iv) improve Dr Migrate Express; and
(v) for internal business purposes.
9.2 You also agree that we may use Dr Migrate Data on a de-identified anonymised basis, without cost and at our discretion, to:
(a) publicise, market and sell Dr Migrate Express; and
(b) supply Dr Migrate Express and related products and services to our partners and clients,
and for any other purposes permitted by Law.
9.3 As between you and us, all right, title and interest in Dr Migrate Data, and all Intellectual Property Rights in Dr Migrate Data belong to and are retained solely by us.
10.1 You acknowledge that any log-in details and access credentials used to access Dr Migrate Express are confidential and must ensure that this information is kept secure from unauthorised access, use or modification.
10.2 You are solely responsible for any use (or misuse) of Dr Migrate Express arising from a failure to keep information secure in accordance with clause 10.1.
11.1 We are the owner or authorised licensee of all Intellectual Property Rights subsisting in Dr Migrate Express (including in any augmentations, modifications, improvements or enhancements to, or derivatives of, Dr Migrate Express) and any other materials provided by or on behalf of us to you in connection with these Terms (Dr Migrate IP).
11.2 Nothing in these Terms assigns or transfers ownership of any Dr Migrate IP.
11.3 Intellectual Property Rights in any materials (including any software, documents, results, information, data and business processes) created or developed by us (whether or not for you, us, or a third party) through use of Dr Migrate Express, and otherwise in the performance of these Terms will, upon their creation, immediately vest in and be exclusively owned by us.
11.4 You assign to us immediately on creation any and all Intellectual Property Rights created or developed by you or on your behalf through your use of Dr Migrate Express.
12.1 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.
12.2 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.
12.3 Each Party must only use Confidential Information of the other Party for the purpose for which it was disclosed in connection with these Terms.
13.1 If a Dispute arises, neither Party may not commence any proceedings relating to the Dispute unless it has first complied with this clause 13, except where a Party seeks urgent interlocutory relief.
13.2 A Party claiming a Dispute has arisen must give written notice to the other Party specifying the nature of the Dispute.
13.3 On receipt of that notice, the Parties must use all commercially reasonable endeavours to resolve the Dispute by discussion, consultation, negotiation, mediation or other informal means.
13.4 If the Dispute is not resolved within 15 business days of notice being given pursuant to clause 13.2 (or within such further period agreed in writing by the Parties), the applicable Dispute resolution process below will be followed by the Parties.
13.5 While the relevant Dispute resolution procedure is being followed, both Parties must continue to fulfil their obligations under these Terms.
13.6 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 13. 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.
13.7 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 13. 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.
13.8 THE PARTIES EXPRESSLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL FOR THE PURPOSES OF LITIGATING DISPUTES UNDER THESE TERMS.
13.9 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).
13.10 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.
13.11 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.
14.1 We warrant that Dr Migrate Express will substantially conform to any applicable product and service specifications that we provide to you in writing.
14.2 Your sole and exclusive remedy, and our sole liability, under or in connection with a breach of clause 14.1, will be the re-supply of Dr Migrate Express in accordance with the warranty in clause 14.1.
14.3 TO THE EXTENT PERMITTED BY LAW AND SUBJECT TO ANY NON-EXCLUDABLE TERMS AND ANY EXPRESS WARRANTIES IN THESE TERMS, DR MIGRATE EXPRESS IS 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 EXPRESS 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 EXPRESS OR ANY RESULTS OF USE OF DR MIGRATE EXPRESS.
14.4 IN PARTICULAR, AND WITHOUT LIMITING CLAUSE 14.3, WE DO NOT TAKE ANY RESPONSIBILITY FOR, DO NOT SUPPORT, AND ARE NOT LIABLE IN ANY WAY TO YOU FOR ANY THIRD PARTY SERVICES, PRODUCTS, PLATFORMS OR ADD-INS (THIRD PARTY SERVICES) OR FOR ANY FAILURE OF DR MIGRATE EXPRESS CAUSED BY SUCH THIRD PARTY SERVICES (INCLUDING ANY CHANGES TO ANY SUCH THIRD PARTY SERVICES).
14.5 We will use commercially reasonable efforts to ensure that Dr Migrate Express is free of any Malicious Code.
14.6 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 (at our discretion) re-supplying Dr Migrate Express.
14.7 You acknowledge and agree that:
(a) any use of, or reliance on, information which is made available to you through Dr Migrate Express is undertaken entirely at your own risk; and
(b) we do not control the transfer of data over the internet and that access to Dr Migrate Express may be subject to limitations, delays and other problems inherent in the use of the internet.
15.1 You agree to indemnify, defend and hold harmless us, and our Related Bodies Corporate, 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 Express.
16.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE WILL NOT BE LIABLE TO YOU, YOUR PERSONNEL OR TO ANY OTHER PARTY FOR ANY CONSEQUENTIAL LOSS ARISING FROM OR RELATING TO DR MIGRATE EXPRESS OR THESE TERMS, WHETHER FORESEEABLE OR UNFORSEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRETATATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHER CAUSE OF ACTION.
16.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL OUR MAXIMUM CUMULATIVE LIABILITY TO YOU (INCLUDING YOUR PERSONNEL) ARISING OUT OF OR IN CONNECTION WITH DR MIGRATE EXPRESS OR THESE TERMS EXCEED USD$100,000.
16.3 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; or
(c) acts of fraud, misrepresentation or wilful misconduct.
17.1 IT IS YOUR RESPONSIBILITY TO EXAMINE AND TEST DR MIGRATE EXPRESS AFTER YOU HAVE BEEN GIVEN ACCESS TO DETERMINE WHETHER IT IS ACCEPTABLE TO YOU AND ADEQUATE AND SAFE FOR YOUR NEEDS AND USES.
17.2 YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR YOUR USE OF AND RELIANCE ON DR MIGRATE EXPRESS.
17.3 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.
18.1 Where not inconsistent with any other agreement relating to Dr Migrate Express (including a statement of work, master services agreement, partner agreement, work order or purchase order with us or an agreement you have with a third party in relation to Dr Migrate Express), you may cancel your Dr Migrate Express licence and terminate these Terms for your convenience at any time by providing us at least 30 days’ notice in writing.
18.2 We may terminate all or part of these Terms and/or suspend your access to and use of Dr Migrate Express immediately if you breach these Terms.
19.1 Upon termination or expiry of these Terms:
(a) your licence to access and use Dr Migrate Express will immediately cease;
(b) we will be entitled to suspend your access to and use of Dr Migrate Express; and
(c) the Licensee Data will be deleted in accordance with clause 3.4.
19.2 Despite any other provision of these Terms, any obligations which are expressed to or, by their nature, survive expiry or termination of these Terms and will continue to the benefit of and be enforceable by us.
20.1 The following clauses apply if you are a U.S. Government End User.
20.2 Dr Migrate Express 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).
20.3 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 Express with only those rights set forth in these Terms.
20.4 Dr Migrate Express is provided to U.S. Government End Users:
(a) only as a commercial end item; and
(b) only pursuant to these Terms.
20.5 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 Express 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.
21.1 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 Express 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 Express in violation of any applicable export control or economic sanctions Laws.
22.1 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.
22.2 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.
22.3 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.
22.4 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.
22.5 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.
22.6 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.
22.7 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 22.7 is of no effect.
22.8 Relationship of Parties: These Terms are not intended to create a partnership, joint venture or agency relationship between the Parties.
In these Terms:
Confidential Information of a Party means in respect of a Party (the disclosing Party) any information obtained by the other Party from the disclosing Party or any Personnel or Related Body Corporate 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.
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 3.
Licensee Data means any and all data, materials, content or information entered into, transmitted through, or stored in Dr Migrate Express by you, or otherwise made available or accessible to us by you in connection with Dr Migrate Express.
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).
Parties means us and you and Party means either us or you, as the context requires.
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.
Related Body Corporate has the meaning given in the Corporations Act (Cth) 2001.
U.S. Government End User means any agency or entity of the government of the United States.
Unless expressed to the contrary, in this document:
(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) this document includes all schedules and annexures to it; and
(c) headings do not affect the interpretation of this document.