Dr Migrate End User Licence Agreement

Version 6.0 | Effective 13 February 2025

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licence agreement

1 Background

1.1 Altra Technologies Pty Ltd (ACN 676 691 035) (us, we) provide software which can assess the complexity, cost and parameters for the migration of IT infrastructure from physical premises to an Azure cloud-based solution and display the results on a PowerBI dashboard (Dr Migrate).

2 Terms

2.1 These License Agreement terms (Terms) govern access to and use of Dr Migrate by individuals and organisations (Licensee, you, your). By deploying, accessing or using Dr Migrate, or requesting or allowing another party to do so on your behalf, you accept these Terms as a binding contract.

2.2 You are responsible for:

(a) authenticating and approving Personnel before they access Dr Migrate;

(b) preventing unauthorised access by Personnel; and

2.3 If you do not accept and comply with these Terms, you may not access or use Dr Migrate.

3 Partner

3.1 If you purchase Dr Migrate through a Partner:

(a) Dr Migrate pricing is independently set by your Partner; and

(b) you will be invoiced by, and all payments must be made directly to, your Partner, unless otherwise agreed.

3.2 We are not responsible for:

(a) your Partner’s acts, omissions or other obligations;

(b) any unauthorized representations or commitments made by your Partner about Dr Migrate;

(d) any refunds or credits, including for any part of the License Fees.

4 Licence Duration

4.1 These Terms take effect and bind the Parties from the date Dr Migrate is deployed in your environment and apply until Dr Migrate has been removed from your environment(s) (License Duration).

5 Licence to Dr Migrate

5.1 Subject to your compliance with these Terms, we grant you a non-transferrable, non-exclusive, royalty-free license to access and use Dr Migrate during the License Duration.

5.2 If, at the end of a free Dr Migrate trial or assessment period, Dr Migrate remains deployed in your environment then (regardless of which version of Dr Migrate was deployed in your environment) we may:

(a) convert you to a different version of Dr Migrate (including to Dr Migrate Hibernate) 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 License Fee for the applicable version of Dr Migrate.

6 Licence Fees

6.1 You must pay the License Fees directly to us, through the Microsoft Azure Marketplace or to your Partner, as applicable.

6.2 Unless otherwise expressly agreed, all License Fees are payable in advance.

6.3 License Fees payable will be based on the highest number of unique servers (virtual and physical) discovered and/or processed by Dr Migrate.

6.4 License Fees apply 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, even if you have paused, stopped or suspended any servers.

6.5 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 License Duration. Alternatively, at our discretion we may restrict your excess use.

6.6 We may monitor your actual use of Dr Migrate against what has been ordered or paid for by you.

6.7 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). The Minimum Commitment period for Dr Migrate Hibernate is one month.

6.8 All License Fees relating to the Minimum Commitment remain payable (and no refund or credit will be given), even if during the Order Period:

(a) you reduce the number of servers that Dr Migrate discovers and/or processes or stop accessing or using Dr Migrate;

(b) you notify us before the end of the Order Period that you want to terminate your existing license or change to a different license;

(d) your Dr Migrate license or these Terms are terminated by us in accordance with these Terms.

6.9 If, during the monthly term for Dr Migrate Hibernate, you choose to move to a different version of Dr Migrate, the License Fees for Dr Migrate Hibernate remain payable until the end of that month, in addition to the License Fees for the version of Dr Migrate you move to. You will have the ability to select the date on which you move from Dr Migrate Hibernate to a different version of Dr Migrate.

6.10 At the end of the Order Period your existing Dr Migrate license will automatically renew monthly and you will be charged the applicable License Fees until the end of the month in which you:

(a) place a Dr Migrate order for a different license or extension of your existing license; or

(b) terminate your Dr Migrate license in accordance with clause 21.1 and remove Dr Migrate from your environment.

7 Use of Dr Migrate

7.1 You must not (and you must ensure that your Personnel and any other person who you allow to access Dr Migrate on your behalf do not) do, or attempt to do, any of the following without our express permission:

(a) allow access to Dr Migrate by anyone other than properly authorised Personnel;

(b) sell, distribute, sublicense or transfer any part of your rights to access or use Dr Migrate;

(d) download, modify, adapt, translate, de-compile, disassemble, copy, reproduce, create, reverse engineer or reverse compile Dr Migrate (or any part of it);

(e) interfere with, disrupt or alter any Dr Migrate functionality;

(f) copy, share, distribute, alter, customise, modify or create derivative works of Dr Migrate or not alter, change, remove or obscure any notices or other indications (including copyright notices) as to the ownership of Dr Migrate;

(g) circumvent or break any encryption, decryption or other security device or technology measure(s) contained in Dr Migrate or that control access to or use of Dr Migrate;

(h) tamper with, hinder the operation of or make unauthorised modifications to Dr Migrate;

(i) access or discover the underlying algorithms or data models used to generate the PowerBI dashboard; or

(j) use Dr Migrate for any unlawful purpose.

8 Support, releases, bug fixes, patching and updates

8.1 Subject to clause 8.3, 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.

8.2 The details and terms of Standard Support and Premium Support are provided in our Support – Scope & Responsiveness document available at www.altra.cloud/legal. We may use overseas resources to provide support for Dr Migrate.

8.3 If you are a Partner:

(a) Standard Support and Premium Support:

(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.

8.4 Regardless of which version of Dr Migrate was purchased by you, or which level of support applies to you, unless expressly agreed otherwise:

(a) only the following will be supported:

(i) the current release of that version of Dr Migrate; and

(ii) the immediately preceding release of that version of Dr Migrate for 60 days after the release date of the current release; and

(b) upgrades to, and new versions of, Dr Migrate are not included in the License Fees and will be at your cost.

8.5 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.

8.6 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.

8.7 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.

9 Licensee obligations

9.1 You are solely responsible (at your own cost) for:

(a) providing all equipment, software and internet access necessary to access and use Dr Migrate;

(b) ensuring that your IT environment (and the IT environment of your users) interfaces with and is compatible with Dr Migrate;

(d) creating and storing backups of Licensee Data.

9.2 You must:

(a) provide us with all reasonable assistance and cooperation as reasonably requested by us in the provision of Dr Migrate;

(b) ensure that any information that you provide to us directly or through the Microsoft Azure Marketplace is, and remains, accurate, current and complete;

(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 with applicable laws, protocols, policies and guidelines issued by us from time to time.

9.3 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 Licensee Data

10.1 All rights (including Intellectual Property Rights), title and interests in the Licensee Data are owned solely by you.

10.2 You grant to us (and our Personnel) a non-exclusive, royalty-free, worldwide license to perform all acts with respect to Licensee Data as required to perform our obligations under these Terms.

10.3 We will not use or disclose any Licensee Data other than in accordance with these Terms and the Microsoft Azure Marketplace terms (if applicable).

10.4 You acknowledge that your Partner, and other parties with whom you have an agreement (such as Microsoft), 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.

10.5 You warrant that:

(a) you have all necessary rights and consents to use the Licensee Data and to permit us to use the Licensee Data in accordance with these Terms;

(b) the use of the Licensee Data by us in the manner permitted by these Terms will not breach any laws or the rights of any person;

(d) you will not, and you will ensure that your Personnel do not, use Dr Migrate to transmit any Malicious Code.

10.6 If you choose to use the Dr Migrate AI Talk Track feature in connection with a PowerPoint report generated by Dr Migrate (Report), you acknowledge that that Report will be analysed by an Altra instance of Open AI which is in a shared Altra Azure tenancy. The Report will not be stored in that shared Azure tenancy. Based on the content of the Report, Open AI will generate talking points which will be inserted into the speaker’s notes section of the Report. These talking points are suggestions only and it is your responsibility to decide whether to use them.

11 License Management Data

11.1 We will collect and use License Management Data to provision, invoice, manage and monitor Dr Migrate and your compliance with these Terms.

11.2 Subject to clause 14, we may also use License Management Data to improve Dr Migrate and for internal business purposes.

11.3 With your prior consent we may also share License Management Data with your Partner and other parties who may be involved in providing Dr Migrate related services or deploying an Azure cloud-based solution for you.

12 Security

12.1 Credentials used to access Dr Migrate are confidential and you must ensure that this information is kept secure from unauthorised access, use or modification.

12.2 You are solely responsible for any use (or misuse) of Dr Migrate arising from a failure to keep information secure in accordance with clause 12.1.

13 Intellectual Property Rights

13.1 Subject to clause 10.1 we are the owner or authorised licensee of all Intellectual Property Rights:

(a) currently subsisting in Dr Migrate;

(b) in any augmentations, modifications, improvements or enhancements to, or derivatives of, Dr Migrate;

(c) in any materials (including technical specifications, marketing collateral, training materials and business processes) created or developed by us (whether for you, us, your Partner or another party) relating to Dr Migrate,

collectively and separately referred to in these Terms as Dr Migrate IP.

13.2 We grant to you a non-transferrable, non-exclusive, royalty-free, revocable license to use Dr Migrate IP in connection with your use of Dr Migrate during the License Duration.

13.3 Where Dr Migrate IP is not already owned by us it will vest in and be exclusively owned by us immediately upon its creation and nothing in these Terms assigns or transfers ownership of any Dr Migrate IP to you, your Partner or any other party.

14 Confidentiality

14.1 Each Party will keep confidential, and not 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;

(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.

14.2 Each Party will take all prudent steps to protect the Confidential Information of the other Party.

15 Disputes

15.1 If a Dispute arises, neither Party may commence any proceedings unless it has first complied with this clause 15, except where a Party seeks urgent interlocutory relief.

15.2 A Party claiming a Dispute has arisen must give written notice to the other Party specifying the nature of the Dispute.

15.3 On receipt of that notice, the Parties must use all reasonable endeavours to resolve the Dispute by discussion, consultation, negotiation or other informal means.

15.4 If the Dispute is not resolved within 15 business days of notice being given pursuant to clause 15.2 (or within such further period agreed in writing by the Parties), the applicable Dispute resolution process below will apply.

15.5 While the relevant Dispute resolution procedure is being followed, both Parties must continue to fulfil their obligations under these Terms.

15.6 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 15. 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.

15.7 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 15. 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.

15.8 THE PARTIES EXPRESSLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL FOR THE PURPOSES OF LITIGATING DISPUTES UNDER THESE TERMS.

15.9 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).

15.10 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.

15.11 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.

16 Warranties and disclaimers

16.1 We warrant that Dr Migrate will substantially conform to any applicable product and service specifications that we provide to you in writing.

16.2 The warranty in clause 16.1 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.

16.3 The warranty in clause 16.1 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; or

(e) a Force Majeure Event.

16.4 Your sole and exclusive remedy, and our sole liability, in connection with a breach of the warranty in clause 16.1, will be the re-supply of Dr Migrate, or if we determine that this is commercially impracticable, termination of these Terms and a refund of any unused pre-paid License Fees for the remaining period of your Dr Migrate order.

16.5 TO THE MAXIMUM EXTENT PERMITTED BY LAW AND SUBJECT TO ANY NON-EXCLUDABLE TERMS AND ANY EXPRESS WARRANTIES IN THESE TERMS, DR MIGRATE IS PROVIDED BY US “AS IS”. WE EXCLUDE ALL WARRANTIES, REPRESENTATIONS, IMPLIED TERMS AND GUARANTEES NOT EXPRESSLY STATED IN THESE TERMS, INCLUDING ANY WARRANTY OR REPRESENTATION THAT DR MIGRATE 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, OR ANY RESULTS OF USE OF, DR MIGRATE.

16.6 WITHOUT LIMITING CLAUSE 16.5, WE DO NOT SUPPORT, AND ARE NOT LIABLE IN ANY WAY, FOR ANY PARTNER OR THIRD PARTY SERVICES, PRODUCTS, PLATFORMS OR ADD-INS (OTHER PARTY SERVICES) OR FOR ANY FAILURE OF DR MIGRATE CAUSED BY SUCH OTHER PARTY SERVICES.

16.7 We will use commercially reasonable efforts to ensure that Dr Migrate is free of any Malicious Code.

16.8 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 such guarantee or warranty, 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.

16.9 You acknowledge and agree that:

(a) any use of, or reliance on, information which is made available to you through Dr Migrate is undertaken entirely at your own risk;

(b) it is your responsibility to input accurate data (including business objectives and desired outcomes), assess which recommendations suit your circumstances and decide whether and how to implement them;

(c) Dr Migrate outputs are generated at a point in time based on the data ingested, and the preferences and settings configured by you, at the time of generation and any changes to those inputs will affect the results;

(d) costs and savings figures generated by Dr Migrate are estimates only and are not guaranteed. Actual results may vary depending on your circumstances, including how any Dr Migrate recommendations are implemented by your and 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 may be subject to limitations, delays and other problems inherent in the use of the internet.

17 Indemnity

17.1 You will indemnify and (at our option) defend us, our Personnel and our Related Companies, 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 because of your reliance on any information or results provided through Dr Migrate.

18 LIMITATION OF LIABILITY

18.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER A PARTY, NOR ITS PERSONNEL OR RELATED COMPANIES, WILL BE LIABLE TO THE OTHER PARTY, ITS PERSONNELOR RELATED COMPANIES, 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.

18.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL OUR, OUR PERSONNEL OR OUR RELATED COMPANIES’ MAXIMUM CUMULATIVE LIABILITY TO YOU, YOUR PERSONNEL OR YOUR RELATED COMPANIES 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.

18.3 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

19 RESPONSIBILITY

19.1 IT IS YOUR RESPONSIBILITY TO EXAMINE AND TEST DR MIGRATE AFTER IT HAS BEEN DEPLOYED IN YOUR ENVIRONMENT TO DETERMINE WHETHER IT IS ACCEPTABLE TO YOU AND ADEQUATE AND SAFE FOR YOUR NEEDS AND USES.

19.2 YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR YOUR USE OF AND RELIANCE ON DR MIGRATE.

19.3 YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS AND THAT THE LICENSE IS CONDITIONED ON YOUR REPRESENTATION TO US THAT YOU HAVE ACCEPTED AND AGREE TO BE BOUND BY THESE TERMS.

20 Termination

20.1 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 another party in relation to Dr Migrate), and subject to clause 6.8, you may terminate your Dr Migrate license by:

(a) providing us at least 30 days’ notice in writing; and

(b) removing Dr Migrate from your environment(s).

20.2 We may terminate these Terms:

(a) if you have not paid a correctly rendered and undisputed invoice issued by us, your Partner, or through the Microsoft Azure Marketplace (as applicable) by its due date; or

(b) immediately if you breach these Terms.

21 Consequences of termination

21.1 Upon the termination of these Terms:

(a) your license to access and use Dr Migrate immediately ends;

(b) we will be entitled to suspend your access to and use of Dr Migrate; and

21.2 Despite any other provision of these Terms, any obligations which are expressed to or, by their nature, survive termination or expiry will continue to the benefit of and be enforceable by the Parties.

22 Force Majeure Event

22.1 Subject to compliance with this clause 22, 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.

22.2 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 22.2(a); and

(c) when the Force Majeure Event ends, recommence performance of the affected obligations and promptly notify the other Party.

23 Publicity

23.1 You grant to us 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.

24 U.S. Government End Users

24.1 The following clauses apply if you are a U.S. Government End User.

24.2 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).

24.3 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.

24.4 Dr Migrate and related documentation are provided to U.S. Government End Users only as a commercial end item and only pursuant to these Terms.

24.5 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 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.

25 Export controls

25.1 You represent and warrant that you will not:

(a) export, re-export or otherwise provide access to or use of Dr Migrate to any party that is listed on any sanctions or designated persons or parties lists or located in (or a national of) a country that is subject to a government embargo or that has been designated as a “terrorist supporting” country; or

(b) permit any of your Personnel to access or use Dr Migrate in violation of any applicable export control or economic sanctions laws.

26 General provisions

26.1 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.

26.2 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.

26.3 Rights cumulative: The rights of a Party under these Terms are cumulative and are in addition to any other rights of that Party.

26.4 Consents: A Party may conditionally or unconditionally give or withhold any consent and is not obliged to give its reasons for doing so.

26.5 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.

26.6 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.

26.7 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 26.7 is of no effect.

26.8 Relationship of Parties: These Terms are not intended to create a partnership, joint venture or agency relationship between the Parties.

27 Definitions

In these Terms:

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 Related Company 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, including a Party’s Intellectual Property Rights.

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;

(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.

Dr Migrate Hibernate means a version of Dr Migrate which has reduced accessibility, functionality and features, is available on a monthly basis and is provided for a reduced License Fee.

Force Majeure Event means an event out of a Party’s reasonable control, such as an act of God, 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, but 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, service marks, inventions, trade secrets, know how, and 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.

License Fees means the fees payable by you for the provision of Dr Migrate.

License Management Data means data collected and processed by us to provision, invoice, manage and monitor Dr Migrate and your compliance with these Terms, including billing contact details, subscription and tenant IDs, license activation and renewal dates, user and order history, activity and error logs, server counts and Dr Migrate performance data.

Licensee Data means data ingested by your instance of Dr Migrate and reports generated for you by Dr Migrate.

Loss means all loss, liabilities, claims, losses, damages, costs and expenses (including legal costs, whether incurred by or awarded against a party), whether arising in contract, tort (including negligence) or otherwise.

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).

Microsoft 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 or provide Dr Migrate to end users.

Personnel means your directors, officers, employees, agents, service providers and contractors and those of any of your Related Companies.

Related Company means any person or entity that is, either directly or indirectly, controlled by, controls, or is under common control with another entity.

U.S. Government End User means any agency or entity of the government of the United States.

28 Construction

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 all schedules and annexures to these Terms; and