This Agreement is made between the two parties:
Matrix Simulators Pty Ltd
300 Flinders Street
Adelaide SA 5000
- and -
Smith Real Estate
123 Key Ave
Melbourne Vic 3000
This License Agreement (the "Agreement"), dated this
24 day of April, 2006, is between Matrix Simulators Pty Ltd ("Matrix")
and Smith Real Estate (the "Licensee") located at 123
Key Ave, Melbourne Vic 3000.
WHEREAS Matrix has sole distribution rights for AlignMark
Inc products in Australia and New Zealand, and agrees to make the
Product available for use by the Licensee for the Fee, and subject
to the terms of this Agreement
AND WHEREAS the Licensee wishes to obtain a license for the
Product on the terms and conditions contained herein for the Fee
NOW THEREFORE in consideration of the mutual covenants contained
herein, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto agree as follows:
"Business Day" means any day of the week other
than a Saturday, Sunday or statutory or civic holiday ;
"Effective Date" means the date that this Agreement
is executed by Matrix;
"Fees" means those site license fees specified
in Section 5 herein; and
"Product" means AlignMark Inc's proprietary Real
Estate Simulator software product, an online computer-based
assessment tool that evaluates a person's selling skills and other
key competencies associated with likely success in real estate sales.
2. Ownership and Proprietary Rights.
The Licensee understands, acknowledges and agrees that AlignMark
retains all right, title and interest in and to the Product, including,
without limitation, all trade secrets, trademarks and copyright.
3. Grant of Limited License
For the duration of this Agreement, Matrix hereby grants the Licensee
a non-exclusive, non-transferable license to use the Product for
the sole purpose of assessing applicants and potential candidates
for its real estate business, as well as assessing the capabilities
of its existing employees (collectively, "Permitted Users").
Licensee acknowledges that failure to abide by the terms of the
license grant contained in this Agreement (including, without limitation,
permitting individuals other than Permitted Users to use and/or
evaluate the Product) shall be considered a material breach of this
4. Use of Product.
a. Licensee agrees not to attempt to modify, adapt, change, reverse
engineer, reverse compile, or otherwise disassemble the Product,
or any portion thereof. Licensee agrees not to use any element of
the Product (e.g., video assets, audio assets) in any way whatsoever
other than as part of the complete Product, and then only in accordance
with the terms of this Agreement.
b. Licensee agrees to respect and not to remove, obliterate, or
cancel from view any copyright, trademark, confidentiality or other
proprietary notice, mark, or legend appearing on any of the output
generated by the Product.
As consideration for the grant of license hereunder, Licensee agrees
to pay Matrix an annual site license fee in the amount of AUD
$xxxx plus GST if applicable [license fee]. The Fee shall be
payable by credit card in 12 equal monthly installments of AUD
$xxx plus GST each, beginning on the date the Product becomes
available for use by the Licensee. The Licensee will also pay a
one-time set-up fee in the amount of AUD $xxx plus GST, which
shall be payable by credit card on the Effective Date. Matrix may
revise the Fee upon notice to the Licensee after the Initial Term
(as defined below).
6. Disclaimer of Warranty.
Matrix makes the Product available to the Licensee on an "AS
IS" BASIS. THERE ARE NO WARRANTIES RESPECTING THE PRODUCT,
EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY
OF DESIGN, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE,
EVEN IF MATRIX HAS BEEN INFORMED OF SUCH PURPOSE. NO AGENT, EMPLOYEE,
DISTRIBUTOR OR REPRESENTATIVE OF MATRIX OR ALIGNMARK IS AUTHORIZED
TO ALTER THE DISCLAIMER OF WARRANTY SET FORTH HEREIN.
7. Limitation of Liability and Indemnification.
||In no event shall Matrix or AlignMark be liable for any indirect,
special, incidental or consequential damages (including, without
limitation, loss of profits or other economic losses) arising
from the use of the Product or inability to use the Product
by Licensee, any Permitted User or any third party. Any provision
herein to the contrary notwithstanding, the maximum liability
of Matrix or AlignMark to any person, firm or corporation whatsoever
arising out of or in the connection with any license, use or
other employment of the Product delivered to Licensee hereunder,
whether such liability arises from any claim based on breach
or repudiation of contract, warranty, tort or otherwise, shall
in no case exceed the actual price paid to Matrix by the Licensee
for the Product license in the immediately preceding twelve
(12) month period. The parties acknowledge that the limitations
set forth in this Section 7 are integral to the amount of consideration
levied in connection with the license of the Product.
||Licensee shall indemnify, defend and hold both Matrix and
AlignMark harmless from any and all claims, damages, losses,
liabilities, costs and expenses (including reasonable legal
fees and disbursements) arising out of or in connection with
the Licensee's use of the Product, or any use of the Product
by a Permitted User.
The term of the Agreement will be one (1) year or 12 months commencing
as of the Effective Date (the "Initial Term").
At the expiration of the Initial Term, this Agreement shall automatically
renew for additional one (1) year terms (each, a "Renewal
Term") unless terminated by either party upon written notice
to the other party at the address first above written at least twenty
(20) Business Days before the end of the Initial Term, or any Renewal
Term, as the case may be.
9. Termination of the Agreement.
||In addition to the ability to terminate in accordance with
Section 8 above, this Agreement may be terminated by mutual
written consent of both parties.
||This Agreement may also be terminated in the event of a
material breach of any term or condition of this Agreement
by either party, provided the other party first provides the
defaulting party with written notice of said breach, and provides
such party with five (5) days to cure the breach. If the event
that the defaulting party is unable or unwilling to cure the
breach with the time period specified herein, then this Agreement
shall automatically terminate.
||Termination under this Section 9 or under any other section
of this Agreement shall not relieve or release either party
from any rights, liabilities or obligations which it has accrued
prior to the date of such termination (including the obligation
to pay outstanding Fees).
Licensee shall not disclose any of the terms of this Agreement
for the duration of the Agreement and for twenty four (24) months
following the expiration of this Agreement.
11. Service Interruption
Licensee acknowledges that at certain times the Product may be
unavailable for use due to periodic updates or circumstances beyond
the control of Matrix or AlignMark (including, without limitation,
power and system failures). Matrix and AlignMark, including directors,
officers, employees, agents, contractors and affiliates will not
be liable for any loss or damage that may result from the inability
to use the Product due to periodic updates or circumstances beyond
the control of Matrix and AlignMark. Licensee further acknowledges
that there are no representations or warranties regarding uninterrupted
or error free service.
All notices, authorizations, and requests in connection with this
Agreement shall be deemed given (i) five days after being deposited
in the Australian or New Zealand postage system, prepaid, certified
or registered, return receipt requested; or (ii) one day after
being sent by overnight courier, charges prepaid.
||This Agreement constitutes the entire Agreement between the
parties with respect to the subject matter hereof and supersedes
all prior agreements and representations of the parties related
to these matters, whether written or oral.
||Nothing stated in this Agreement will be construed as creating
the relationship of joint ventures, partners, employer and employee,
franchisor and franchisee, master and servant, or principal
|| If any provision or part of any provision in this Agreement
is held by a court of competent jurisdiction to be illegal,
invalid or unenforceable, it shall be severed without affecting
the validity of the balance of the Agreement.
||This Agreement may not be supplemented, modified, amended,
released or discharged except by an instrument in writing signed
by each party's duly authorized representative.
||Any waiver by either party of any default or breach hereunder
shall not constitute a waiver of any provision of this Agreement
or of any subsequent default or breach of the same or a different
||Licensee shall not assign this Agreement or its rights hereunder
without the prior written consent of Matrix.
||The capitalized headings in this Agreement are only for convenience
of reference and do not form part of or affect the interpretation
of this Agreement.
||This Agreement binds and benefits the parties and their respective
heirs, executors, administrators, personal representatives,
successors, and assigns.
||This Agreement shall be governed in accordance with the laws
of South Australia. Any action brought to enforce or interpret
this Agreement shall be held in Adelaide, South Australia.
||Sections 7, 9(c) and 10 shall survive termination or expiration
of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered on the day and year indicated
Matrix Simulators Pty Ltd
Smith Real Estate
Name: Gary Beesley
Name: John Smith