Lincoln Indicators Pty Ltd limited use software licence agreement

Effective from 7 November 2011 the Licence Agreement has been updated to reflect changes in relation to the cancellation refund policy.

What this is

This document contains the Lincoln Indicators Pty Ltd ACN 006 715 573 (‘Lincoln’) limited use software licence agreement (the ‘agreement’) which will govern your use of the Lincoln database software.

Grant of licence

Lincoln hereby grants you a limited, non-exclusive, non-transferable licence subject to the terms and conditions contained herein to use the Lincoln database software, (the ‘software’) in this agreement.

      1. Private investor licence: this licence entitles you to use the software on a single computer (or on a replacement) for private investment purposes and not for the provision of a service to third parties. If you wish to use the software on more than one computer, you must purchase an additional licence. If you are a financial services licensee (within the meaning of the Corporations Act 2001), an accountant in the business of providing financial services, or wish to use the software to provide a service to third parties, you will require a Corporate licence and are not entitled to a Private investor licence.

 

      1. Corporate licence: this licence entitles one person to use the software on a single computer (or on a replacement) at the registered site including for the purpose of providing a service to third parties. If you wish to use the software on additional computers or for other people to use the software, you must purchase additional licences.

 

Licence is non-transferable

You may not either temporarily or permanently transfer or sub-licence your rights to use the software under this agreement without the prior written consent of Lincoln.

Term

      1. 30-day trial subscription: if you select the 30-day trial subscription your licence is for the period commencing 30 days from the date Lincoln receives initial payment of the fee and may be terminated on the terms of this agreement and only extended by purchasing a subscription. Unless extended, your licence will terminate at the end of this 30-day trial period. At the end of the licence period (including any extensions), if requested, you must certify in writing that you have destroyed any archival copies that you may have recorded on any memory system or any other medium. A limit applies of one 30-day trial subscription per year and no more than two 30-day trial subscriptions per lifetime.

 

    1. One year, two year or five year term subscriptions: if you select one of these terms your licence is for the period of the selected term, commencing on the date Lincoln receives payment of the subscription fee for the selected term and may be extended or terminated on the terms of this agreement. If you renew the licence for a further period (or periods) of one of these terms, each further licence period will commence from the end of the previous period or when Lincoln receives your renewal payment, whichever is the latter. At the end of the licence period (including any extensions), if requested, you must certify in writing that you have destroyed any archival copies that you may have recorded on any memory system or any other medium. Any such termination shall be without prejudice to the accrued rights of the parties.

      Lincoln offers a 30-day money back guarantee from original date of purchase. This guarantee excludes 30-day trial subscriptions and subscription renewals. Should the agreement be terminated in this period, you must, if requested, certify in writing that you have destroyed any archival copies which you may have recorded on any memory system or any other medium, state your reasons for discontinuing the service, and return the software and packaging at your expense.

      Corporate licence subscriptions and renewals can only be selected for terms of one year. Multi-year subscriptions are not available for Corporate licences.

Ownership
This agreement does not pass on any intellectual property or other ownership rights in the software.

Payment

      1. 30-day trial subscription fee: in return for the 30-day trial subscription, you must pay Lincoln its current 30-day trial subscription fee. You cannot renew a 30-day trial subscription.

 

    1. Subscription fee: in return for a subscription of either; one year, two years or five years, you must pay Lincoln its current subscription fee for that term. If you wish to renew the licence to use the software for one of these terms at the end of the initial period (or any renewal), you must pay Lincoln its then current renewal subscription fee for one of these terms. The renewed subscription fee for one of these terms is to be paid within 30 days of receipt of a Lincoln invoice. Other means of payment may apply e.g. credit card, direct debit, etc. In these cases payment is due on receipt of the Lincoln invoice.

Cancellation
Should you decide to cancel your subscription at any time during the term of your subscription (whether the original term or a renewal term, other than a 30-day trial subscription), refunds are payable at a percentage of the subscription fee paid as follows:

Private investor licence: New subscription and renewals

Cancellations within the following months:
Term 0 – 12 months 13 – 24 months 25 – 36 months 37 – 48 months After 48 months
One year No refund N/A N/A N/A N/A
Two years 40% No refund N/A N/A N/A
Five years 75% 50% 25% 5% No refund

Corporate licence: No refund is payable for cancellation of a Corporate licence subscription.

Installation discs

For new clients, an installation disc is available by request as part of your subscription fee.

Replacement installation discs

A fee of $30 applies for all replacement discs.

Increase in subscription fee for renewals

Lincoln may increase the subscription fee by 30 days notice in writing before the commencement of a renewal subscription, by an amount which represents the proportionate increase (if any) in the Consumer Price Index for Australia between the date of the notice and the corresponding day in the previous year (or for Multi-year terms, the commencement day of the previous term), or if enhancements to the software have been offered to you, by an amount considered by Lincoln to be reasonable.

Increase in subscription fee for additional subscriptions

Additionally Lincoln may increase the subscription fees prospectively for additional subscriptions if it is deemed necessary or where the product offer may change.

Lincoln rights

You acknowledge that the rights to the software and the manuals and other related materials are the sole and exclusive property of Lincoln. By accepting this agreement, you do not become the owner of the software, but you do have the right to use the software in accordance with the agreement. You agree to use your best efforts and to take all reasonable steps to protect the software from unauthorised use, illegal reproduction or illicit distribution.

Your original software/archival copies

You can use the original medium containing the software (‘medium’) to make a ‘back-up’ or ‘archival’ copy for the purpose of running the software program. You should not use the original medium when running the software program. After recording the back-up copy, place the original medium in a safe place. Other than this back-up copy, you agree that no other copies of the software will be made.

Preservation of copyright

You must not, without the prior written consent of Lincoln, copy, reproduce, translate or do any act which infringes the copyright in the software; create a derivative work from the software by any means; decompile, disassemble or reverse engineer the software; give, lease, licence, rent, assign or transfer the software to any other person, alter, modify or delete any information or data contained therein; or use the software in any service bureau arrangement (unless you hold a Corporate licence).

Reports

    1. Private investor licence: you must keep all reports generated by the software confidential and not distribute the reports to third parties or otherwise use the software for commercial gain.

 

  1. Corporate licence: you may distribute hardcopy reports generated by the software to your clients on a strictly confidential basis.

Upgrades to the software

From time to time, Lincoln may issue to you an upgrade of the software on such terms and conditions as Lincoln may reasonably impose (including limiting the availability of support in respect of any software not upgraded). Any such upgrades shall form part of the software for the purposes of this agreement and are subject to the terms and conditions of this agreement as if they formed part of the original software.

Limited warranty for subscriptions

If you have purchased a subscription, Lincoln warrants for a period of ninety (90) days from the effective date of this agreement that, under normal use, the medium and the user manual(s) will not prove defective; that the program is properly recorded on the medium; and that the user manual(s) are substantially complete and contain all the information which Lincoln considers necessary in order for you to use the software. If this warranty is breached, you may return the software to Lincoln for replacement without charge. You may have additional rights under statutory warranties and/or guarantees.

Except for the limited warranty provided in this paragraph and any additional statutory warranties and/or guarantees, there are no other warranties, guarantees, conditions or representations either express or implied that apply in relation to the software, the program, the medium or the user manual(s). All such warranties conditions and representations are expressly disclaimed.

Liability

Subject to any statutory rights you might have, you acknowledge that in entering into this agreement you have not relied in any way on Lincoln’s representations, descriptions, illustrations, specifications, skill or judgment and that you have satisfied yourself as to the condition and suitability of the software for its purposes. Unless this agreement expressly provides otherwise and/or statutory warranties or guarantees apply, Lincoln gives no guarantee, warranty, undertaking or representation in relation to the condition, accuracy, suitability, quality of or title to the software (including any data contained in or supplied in relation to it or reports generated or produced by or with the aid of it), and all implied guarantees, warranties and liabilities (including liability as to negligence) in relation to same are negated and excluded.

Subject to any statutory rights you might have, you acknowledge and agree that Lincoln is not liable for any loss or damage, including consequential loss or damage, which in any way results from your use or non-use of the software (including as a result of any malfunction, breakdown, error or virus in the software) or as a result of or in connection with the provision or non-provision of services under this agreement.

Subject to any contrary statutory provisions, you will indemnify Lincoln and keep Lincoln indemnified against: (a) all and any demands, claims, actions and proceedings whatsoever and howsoever arising made by any third person in connection with or arising out of your use of the software; and (b) all and any losses, costs, expenses and damages whatsoever and howsoever incurred by Lincoln in connection with or arising out of a breach by you of any provision of this document.

Nothing in this agreement excludes, restricts or modifies any condition, warranty, guarantee, right or remedy which is conferred on you by the Competition and Consumer Act 2010 (Cth), the Australian Securities and Investments Commission Act 2001 (Cth) or any other consumer legislation as amended (the ‘Acts‘) which Lincoln is not lawfully able to exclude, restrict or modify. Where Lincoln breaches a non-excludable condition, guarantee or warranty which has been implied by the Acts, Lincoln’s liability for breach will be limited, to the extent lawfully permissible, to: (a) in the case of supply of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent materials, or the payment of the cost of having the goods repaired; (b) in the case of the provision of services, the supplying of the services again, or the payment of the cost of having the services supplied again; whichever Lincoln sees fit to provide.

Third party data carriers

You acknowledge that Lincoln obtains data from carriers such as the Australian Securities Exchange Ltd, ASX Operations Pty Ltd and other relevant exchanges and bodies. Lincoln will not be liable to you for any failure to supply the data provided by the above-mentioned carriers or any failure in the operation of the software where that failure arises as a result of any non supply of the necessary data from the appropriate carrier. You must not supply any of the data provided by one of the above-mentioned carriers to any other person. The material supplied by ASX Operations Pty Ltd is subject to a claim of copyright and is published under licence from that company. ASX Operations Pty Ltd shall be under no liability whatsoever for any loss suffered by any person, whether arising from negligence or otherwise from the use of or results obtained from material supplied by ASX Operations Pty Ltd.

Foreign Exchange, International Commodities and International Indices information in the software is made available under licence from InfoDirect Limited (a New Zealand registered company numbered 664861).

ASX-listed company data is copyright and provided by Morningstar Australasia Pty Ltd (‘Morningstar’)© 2009 ABN: 95 090 665 544, AFSL: 240892 (a subsidiary of Morningstar, Inc). All rights reserved. The data and content contained herein are not guaranteed to be accurate, complete or timely. Neither Morningstar, nor its affiliates nor their content providers will have any liability for use or distribution of any of this information. To the extent that any of this information constitutes advice, it is general advice that has been prepared by Morningstar without reference to your objectives, financial situation or needs. Before acting, you should consider the appropriateness of the advice and obtain financial, legal and taxation advice before making any financial investment decision. Investors should obtain the relevant product disclosure statement and consider it before making any decision to invest. Please refer to Morningstar’s Financial Services Guide (FSG) for more information www.morningstar.com.au/fsg.asp. Some of the material provided is published under licence from ASX Operations Pty Limited ACN 004 523 782 (‘ASXO’). Consensus forecast data is copyright Thomson Financial.

Consensus target data is copyright, Thomson Reuters. All Rights Reserved. Use, duplication or sale of this service or data contained herein is strictly prohibited.

Subscribers can receive daily email services from Lincoln, which may include information, text or images provided by Australian Associated Press Pty Limited (‘AAP‘) or its Licensors, © 2005. This is the ‘Lincoln Pty Ltd’ service with content provided by AAP. AAP reserves all rights, including copyright, in services provided by it. The globe symbol and ‘AAP’ are registered trademarks.

InfoDirect Limited, HII, Thomson Reuters and AAP are each a third party data carrier under this agreement.

Data provided by a third party data carrier must not be reproduced, rewritten, copied, re-sold, re-distributed, framed, linked, or made available to any other person.

Neither Lincoln nor any third party data carrier will be liable to you for any failure to supply the data provided by the third party data carrier or any failure in the operation of the software where that failure arises as a result of any non supply of the necessary data from the appropriate carrier.

Neither Lincoln nor any third party data carrier will be under any liability whatsoever for any loss suffered by any person whether arising from negligence or otherwise for any errors or omissions in, delay or interruption to, or for the use of or results obtained from, data supplied by a third party data carrier.

General advice

The software may include general advice. It has been prepared without taking into account the objectives, financial situation or needs of any individual investor. Therefore, before acting on it, you should consider the appropriateness of the advice in regard to your particular objectives, financial situation or needs.

Termination of agreement

If you breach any of the terms and conditions of this agreement, Lincoln has the right immediately to terminate the agreement by notice in writing and to demand that you return the software to Lincoln. At that time, you must also certify in writing that you have not retained any copies of the software.

If you are a Private Investor and Lincoln breaches any of the terms and conditions of this agreement, you have the right to immediately terminate the agreement by notice in writing but you must return the software to Lincoln and certify in writing that you have not retained any copies of the software.

Governing law

This agreement is to be governed by, and interpreted in accordance with, the laws of Victoria, Australia. Any terms or conditions of this agreement found to be unenforceable will be deleted, but will not affect the remaining terms and conditions of this agreement.

Entire agreement

This Agreement constitutes the entire agreement between you and Lincoln, and applies to you if purchased for your own use, or to you, your company and that company’s employees if purchased for company use.