End User Agreement

END USER SOFTWARE LICENCE AGREEMENT

This Agreement is made between you (End User) and Lewis Woolcott Pty Ltd ACN 644 825 623 (Licensor) and governs your use of Logic+ or later versions.

BY DOWNLOADING, INSTALLING, PURCHASING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT UNDERSTAND THE TERMS OF THIS AGREEMENT OR DO NOT INTEND TO BE BOUND BY THEM, DO NOT DOWNLOAD, INSTALL, PURCHASE OR OTHERWISE USE THE SOFTWARE.

Recitals
1. The Licensor and the End User have entered into this end user software Licence agreement which governs the End User’s use of all versions, parts and features of the Software (Agreement).
2. If this End User clicks on the “Accept” button, the End User warrants that:
  1. it agrees to be bound by all of the terms of this Agreement;
  2. it is authorised to enter into this Agreement; and
  3. this Agreement is legally binding upon the End User. If the End User does not agree to be bound by this Agreement, then it shall click the “Decline” button.
Definitions and interpretation
1. Unless the matter or context requires otherwise, in this Agreement including the introductions, recitals, schedules and appendices (if any) these words and expressions whether commencing with capital letters or not must have the meanings respectively assigned to them below:
  1. Australian Consumer Law means the Australian Consumer Law which is contained in the Competition and Consumer Act 2010 (Cth).
  2. Business Day means a day other than a Saturday, Sunday or other day which is a public holiday or a bank holiday in the place where an act is to be performed or a payment is to be made.
  3. Business Hours means between 9:00am and 5:00pm on any Business Day;
  4. Claim means, in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost liability, action, proceeding, right of action, chose in action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether ascertained or unascertained, or immediate, future or contingent.
  5. Commencement Date means the date of this Agreement.
  6. Confidential Information means:
    1. information provided by one Party to the other relating to the Software;
    2. information emanating from or belonging to one Party which the other acquires during discussion or correspondence between the Parties and related to or connected with the Software;
    3. information produced by or arising from the discussion or correspondence between the Parties relating to or connected the Software, or performing a Party’s obligations under this Agreement;
    4. any information which is not in the public domain (unless in the public domain because of a breach of confidentiality);
    5. all technical and other information and know how, including all information and know how in any eye or machine readable form or other format, disclosed or given to the End User from any source in respect of or incidental to:
      1. the Software;
      2. the Licensor; and/or
      3. any other Information disclosed or given, whether before or after the Commencement Date, which is marked or has been otherwise indicated to be confidential or which derives value from being confidential or which would be regarded as confidential by a reasonable person.
  7. Good Faith includes:
    1. being fair, reasonable and honest;
    2. doing all things reasonably expected by the other Party and by this Agreement; and
    3. not impeding or restricting the other Party’s performance.
  8. GST means any consumption tax imposed by a Government, whether at point of sale or at some other specified occurrence, by whatever name, which operates during the term of this Agreement or any renewal thereof and includes, without limitation, Goods and Services Tax imposed pursuant to the provisions of the A New Tax System (Goods and Services Tax) Act 1999, a broad based consumption or indirect tax and value added tax and any tax analogous to the foregoing in any relevant jurisdiction.
  9. Improvements means any improvement, modification, enhancement or derivative of the Intellectual Property arising during the Term.
  10. Information means ideas, data, instructions, plans, specifications, formulae, know-how, inventions, techniques, technology, computer software, designs, copyright, drawings, process descriptions, reports, developments, results, technical advice and trade secrets whether in documentary, visual, oral, machine-readable and other form or samples, equipment and other tangible items.
  11. Intellectual Property means any Improvements, Information, patent, design rights, design (whether registered or not), trademark or name, copyright, trade or business names, whether registerable or not (including applications for the right to apply for registration of any such rights) or other protected right.
  12. Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, designs, patents, circuit layouts, business and domain names, inventions and other results of Intellectual Property activity.
  13. Licence means the software licence granted to the End User by the Licensor in accordance with the terms and conditions of this Agreement.
  14. Licensor means Lewis Woolcott Pty Ltd ACN 644 825 623 – and/or any other related subsidiaries that are nominated.
  15. Major Software Update means a fundamental and material change to the features of the Software and is released by the Licensor, at a further cost to the End User, as a further version of the Software.
  16. Party, Party’s or Parties means a signatory to this Agreement.
  17. Privacy Law means the Privacy Act 1988 (Cth) and all applicable laws and regulations relating to privacy and the processing and/or security of personal data within Australia.
  18. Privacy Policy means Lewis Woolcott’s privacy policy as listed on its website, here: (https://lwtech.shop/privacy-policy/)
  19. Services means all websites owned or operated by the Licensor, and any related websites, sub-domains, and pages, as well as any cloud services operated by the Licensor.
  20. Software means the program Logic+ including its software, user guides, add-ins, documentation and other materials.
  21. Subscription Fee means the fee payable from the End User to the Licensor in consideration for the use of the Software. The pricing of the Subscription Fee is listed on lewiswoolcott.com and is subject to change from time to time with or without notice.
  22. Subscription Period means a period of 30 calendar days commencing on and from the Commencement Date which the End User will be entitled to use the Software.
  23. Term means the period commencing on the Commencement Date and ending on termination of this Agreement by either Party pursuant to Clause 10 or at common law.
  24. Third Party means a person other than the Parties to this Agreement.
  25. Trial Period means a period of 7 calendar days commencing from the Commencement Date, which the End User will be entitled to trial the use of the Software.
2. (Interpretation) in this Agreement:
  1. any reference to time is a reference to time in Brisbane, Queensland, Australia.
  2. the singular includes the plural and vice versa.
  3. a reference to a gender includes a reference to every other gender.
  4. a reference to a person includes a reference to an individual, body corporate, firm, corporation or other corporate body.
  5. a reference to ‘includes’ means ‘includes but is not limited to’.
  6. “subsidiary” and “holding company” have the meanings given in the Corporations Act 2001 (Cth).
  7. a reference to a statute, regulation or provision of a statute or regulation (Statutory Provision) includes a reference to:
    1. that Statutory Provision as amended, extended, applied or enacted occasionally;
    2. includes any subordinate legislation; and
    3. placement of that Statutory Provision.
  8. a reference to writing includes a reference to printing, typing and each other method of producing words in a visible form.
  9. where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have corresponding meanings.
  10. headings are for ease of reference and do not affect the construction of this Agreement.
  11. if a Party comprises more than one person this agreement binds them jointly and each severally.
  12. a reference to a Party also includes that Party’s legal personal representatives, successors, assigns and/or any person that is substituted by way of novation.
  13. if a day appointed by this Agreement for the payment of money or performing an act falls on a day which is not a Business Day, then that thing must be done on or before the next Business Day.
User Acceptance
1. The Agreement shall commence on the date of acceptance of this Agreement (Commencement Date) and operate for the duration of the Term.
Obligation binding
1. The obligations created by this Agreement are legally enforceable and binding on the Parties. Except as expressly provided in this Agreement, the rights of a Party under this Agreement are in addition to and do not exclude or limit any other rights or remedies provided by law (including Australian Consumer Law).
2. Each Party hereby represents and warrants to the other that:
  1. such Parties have the right, power and authority to enter into this Agreement and to fully perform all of its obligations hereunder, and have secured all authorisations and consents necessary to enter into this Agreement;
  2. entering into this Agreement does not violate any agreement or obligation existing between such Party and any Third Party.
3. The End User shall not assign sell or otherwise dispose of its interest in this Agreement without the prior written consent of the Licensor.
User Manual
1. The Licensor shall make available to the End User a copy of the User Manual via the Licensor’s website.
2. The Licensor will use its reasonable endeavours to ensure the User Manual will enable the End User to operate the Software in a manner reasonably contemplated by the Parties.
3. The Licensor will use its reasonable endeavours to inform the End User of any amendments to the User Manual which may become necessary from time to time.
4. The End User must not copy the User Manual except where necessary to enable the acceptable use of the Software.
5. The Licensor is not liable to install the Software for the End User or to provide any services or support in respect of installation of the Software under this Agreement.
General Terms of Use
1. The End User acknowledges and agrees that:
  1. (Single Primary User) it is the Single Primary User of the Licence. Upon acceptance of this Agreement, it will create a username and password for its account (User Login). The Licensor will provide the End User with a product key which will enable it to access and use the Software on a single device (Licensed Device). The Licensor may access the Software to provide technical support from time to time. No other user may use the Software under the same Licence at the same time for any other purpose. The End User must ensure its User Login is kept secure and confidential at all times and acknowledges that it is responsible for ensuring the accuracy of the information it provides to set up its User Login;
  2. (Trial and Conversion) upon activation of the End User’s product key a trial version of the Software will be licensed to the End User for the Trial Period (Trial Platform). The End User may install one copy of the Trial Platform. The Trial Platform is provided on an “as-is” basis. If the End User does not wish to convert to a subscription, it must cancel its subscription within the Trial Period. The Trial Platform will continue to operate until the end of the Trial Period, after which the End User must uninstall the Software from its device and destroy all copies. If the Trial Platform is being used, the following terms and conditions apply:
    1. the Trial Platform is distributed on a ‘try-before-buy’ basis. This means that there is no charge or fee for the duration of the Trial Period. At the conclusion of the Trial Period, if the End User has not cancelled its subscription, it will automatically be billed for the subsequent Subscription Period and will continue having access to use the Software;
    2. the Trial Platform may not be distributed inside of any other software package without the Licensor’s written permission; and
    3. the End User may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, otherwise reverse engineer or do any act that is similar to or the same as reverse engineering, or transfer the Software, or any subset of the Software, except as provided for in this Agreement. Any such unauthorised use shall result in (without limiting the Licensor’s remedies) immediate and automatic termination of this Agreement;
  3. (Activation) The End User is responsible for ensuring that the Software is used in accordance with the specifications provided in the User Manual. During activation, the Software will send hashed (anonymised) information about the unique identifier of the Licensed Device to the Licensor.;
  4. (Validation) the Software will from time-to-time update or require download of the validation feature of the software. Validation verifies that the Software has been activated and is properly licensed. Validation also permits the End User to use certain features of the Software or to obtain additional benefits by way of Software Updates. During a validation check, the Software will send information to the Licensor including the version of the Software and the product key. The Licensor does not use the information to identify or contact the End User. By using the Software, the End User consents to the transmission of this information. The Licensor will use its reasonable endeavours to provide advanced notice to the End User of any updates and the planned times in which updates are to occur;
  5. (Scope of Licence) the Software is licensed, not sold. The End User must not:
    1. work around any technical limitations in the Software;
    2. replicate, copy (or permit any other person to replicate or copy) the Software in part or in full;
    3. reverse engineer, decompile or disassemble the Software;
    4. publish the Software for others to copy;
    5. use the Software in any way that is against the law;
    6. reassign to any other device;
    7. transfer to a Third Party;
    8. rent, lease or lend the Software; or
    9. use the Software for commercial software hosting services;
  6. (Consent to Use of Data) the Licensor may collect and use technical data and related information—including but not limited to technical information about the End User’s device, system and application software, and peripherals—that is gathered periodically to facilitate the provision of software updates, product support, and other services to the End User (if any) related to the Software. The Licensor may use this information to improve its products or to provide services or technologies;
  7. (Notices) notices given under this Agreement;
    1. must be in writing and in plain English;
    2. must be sent by electronic mail and addressed to the party to whom it is to be given at the email address as notified by the recipient; and
    3. i is deemed to have been received by the Party to which it is addressed when the sender’s computer reports that the message has been delivered to the electronic mail address of the addressee, but if delivery is made after 5:00pm on a Business Day it must be treated as received on the following Business Day.;
Acceptable Use
1. The End User is solely and entirely responsible for any and all activities that occur under its User Login. The End User shall be responsible for ensuring that the Software is used in accordance with this Agreement and in a manner that complies with all applicable international, federal, state and local laws.
2. The End User acknowledges that it is solely responsible for any materials that its account uploads, downloads, transmits or otherwise processes using the Software.
3. The End User agrees to:
  1. immediately notify the Licensor of any unauthorised use of its User Login or any other breach of security of which it is aware; and
  2. change its User Login to prevent unauthorised access to the Software.
4. The End User is strictly prohibited from using the Software for any unlawful or unauthorised purpose including;
  1. compromising the integrity of the Licensor’s systems. This could include probing, scanning, or testing the vulnerability of any system or network that hosts the Software or Services. This prohibition does not apply to security assessments expressly permitted by the Licensor;
  2. tampering with, reverse-engineering, or hacking the Software or Services, circumventing any security or authentication measures, or attempting to gain unauthorised access to the Software, Services, related systems, networks, or data;
  3. modifying, disabling, or compromising the integrity or performance of the Software or Services or related systems, network, or data;
  4. deciphering any transmissions to or from the servers running the Software or Services;
  5. overwhelming or trying to overwhelm the Licensor’s infrastructure by imposing an unreasonably large load on its systems that consume extraordinary resources (CPUs, memory, disk space, bandwidth, etc.), such as:
    1. using “robots,” “spiders,” “offline readers,” or other automated systems to send more request messages to its servers than a human could reasonably send in the same period by using a normal browser; and
    2. going far beyond the use parameters for any given service as described in its corresponding documentation;
  6. misrepresentation of the identity of the End User, or disguising the origin of any content (including by “spoofing”, “phishing”, manipulating headers or other identifiers, impersonating anyone else, or falsely implying any sponsorship or association with the Licensor or any Third Party);
  7. using the Software or Services to violate the privacy of others, including publishing, or posting other people’s private and confidential information without their express permission, or collecting or gathering other people’s personal information (including account names or information) from the Software or Services;
  8. using the Software or Services for any illegal purpose, or in violation of any laws (including without limitation data, Privacy Law, and export control laws);
  9. accessing or searching any part of the Software or Services by any means other than our publicly supported interfaces (for example, “scraping”);
  10. using meta tags or any other “hidden text” including the Licensor’s or its suppliers’ product names or trade marks; and
  11. using the Software or Services for the purpose of supplying alerts on disaster scenarios or any other situations related to health or safety, including but not limited to acts of terrorism, natural disasters, or emergency response;
  12. using the Software or Services to generate or send unsolicited communications, advertising, chain letters, or spam;
  13. soliciting the Licensor’s users for commercial purposes, unless expressly permitted by the Licensor;
  14. disparaging the Licensor or its partners, vendors, or affiliates;
  15. promoting or advertising products or services without proper authorisation;
  16. posting, uploading, sharing, giving, or otherwise providing content that:
    1. infringes the Licensor’s or a Third Party’s Intellectual Property or other rights, including any copyright, trade mark, patent, trade secret, moral rights, privacy rights of publicity, or any other intellectual property right or proprietary or contractual right;
    2. is deceptive, fraudulent, illegal, obscene, defamatory, libellous, threatening, harmful to minors, pornographic, indecent, harassing, hateful;
    3. encourages illegal or tortious conduct or that is otherwise inappropriate;
    4. attacks others based on their race, ethnicity, national origin, religion, sex, gender, sexual orientation, disability, or medical condition;
    5. contains viruses, bots, worms, scripting exploits, or other similar materials; or
    6. could otherwise cause damage to the Licensor or any Third Party.
5. Without limitation to any other rights, the Licensor may temporarily suspend or terminate the End User’s access to the Software if, in its sole discretion, it determines the End User to have used the Software for an unlawful or unauthorised purpose or in breach of this Agreement.

Subscription Fee and Payment
1. The End User shall pay the Subscription Fee upon acceptance of this Agreement and will continue to pay the Subscription Fee every Subscription Period until this Agreement is terminated.
2. The Subscription Fee is exclusive of GST. The End User, in addition to paying the Subscription Fee, must pay to the Licensor an amount equal to any GST payable in respect of the Subscription Fee or any other amount payable under this Agreement. The End User must make payment of an amount equal to any GST payable on the date when the Subscription Fee is due.
3. The End User acknowledges and accepts that the Subscription Fee is processed by a Third Party and the End User’s payment of the Subscription Fee is subject to the terms and conditions of that Third Party. Without limiting (and notwithstanding) clause 21, the End User agrees that the Licensor will not be liable in any way for any damage, loss, cost or any other adverse consequence for the End User or any other party arising in any way out of:
  1. a data breach in respect of the Third Party;
  2. any breach of obligation or of any person’s rights by the Third Party; or
  3. the passage (other than knowingly unlawful passage by the Licensor) of credit card details or other account details to, or any use of such details by, the Third Party.
4. Unless the Agreement is terminated prior to the billing date for the proceeding Subscription Period, the Licensor shall automatically bill the End User in advance on a monthly basis for the Subscription Fee and all other costs incurred by the Licensor under this Agreement.
5. The Subscription Fee may be varied from time to time by reasonable notice to the End User.
6. If the End User’s payment of the Subscription Fee fails, the Licensor can immediately terminate this Agreement.
Interest
1. If the End User fails to pay any sum due for payment under this Agreement on or before the billing date, the Licensor reserves the right to require the End User to pay interest on that amount from the due date until the date of actual payment (whether before or after judgement). Interest is:
  1. calculated on daily balances at the rate of 10% per annum; and
  2. capitalised monthly.
Cancellation and Termination
1. The End User may terminate this Agreement at any time, for any reason whatsoever, by clicking the “Cancel Subscription” button.
2. Where the End User is seeking to terminate this Agreement in accordance with Clause 10.1, unless it is otherwise agreed in writing, the End User shall remain liable for payment of the Subscription Fee for the remaining portion of the Subscription Period.
3. The End User will continue to have access to the Software until the end of the Subscription Period.
4. To the extent permitted by law, the End User is not entitled to any refunds or credits for cancellations during any partial Subscription Period.
5. The Agreement shall only terminate for default after the steps outlined in Clause 16 and 17 have been complied with.
6. In the event of termination of this Agreement, the End User must, within ten (10) Business Days, deliver up any and all Information and Intellectual Property held by it in connection with the performance of this Agreement to the Licensor.
7. Upon request from the Licensor, a nominated representative from End User shall provide a statutory declaration, to the satisfaction of the Licensor, evidencing it has given full effect to Clause 10.6.
Software Support
1. The End User must report any fault, interruption, defect or malfunction to the Licensor as soon as possible after becoming aware of such fault, interruption, defect or malfunction.
2. The Licensor may provide technical support via web, email and telephone services to correct any defects, bugs or otherwise modify the Software. The Licensor is not required to provide Software Updates or Major Software Updates.
3. The End User may be required to install periodic updates of the Software provided by the Licensor to implement an improvement or additional functionality to the Software (Software Updates) to continue its use of the Licence.
4. Software Updates may be installed automatically, without any notice being provided to the End User, and without any consent being sought from the End User.
5. By downloading, installing, using, purchasing or paying any Subscription Fee for the Software, the End User consents to the Software Updates.
6. The Licensor may need to interrupt access to the Software to perform Software Updates or to perform a Major Software Update.
7. The Licensor must seek consent from the End User prior to installing a Major Software Update.
8. The Licensor has no liability for any damage or loss caused as a result of downtime caused by any reason.
Third Party Software
1. The Software may contain Third Party software programs (Third Party Software) that are available under open-source licences and distributed, embedded or bundled with the Software.
2. This Agreement does not alter any rights or obligations the End User may have in respect of the Third Party Software.
3. Clauses 20 to 22 of this Agreement shall apply to the Third Party Software.

Intellectual Property
1. The End User acknowledges and agrees that all Intellectual Property Rights in the Software, including the User Manual and any and all creations, inventions, improvements and other intellectual property rights contained in or embodied within the Software, belong to and remain vested in the Licensor or its Third Party Software providers (if any), and to the extent necessary, the End User hereby assigns to the Licensor any such Intellectual Property Rights it may acquire.
2. The Licensor grants to the End User a non-exclusive, non-transferable, non-sublicensable limited licence during each Subscription Period to access and use the Software in accordance with the terms of this Agreement.
3. The End User agrees that by being granted a licence to use the Software, the Licensor in no way permanently transfers or waives its Intellectual Property Rights in the Software to the End User.
4. The End User must not modify the whole or any part of the Software or incorporate the whole or any part of the Software in any other program or system without the prior written consent of the Licensor.
5. The End User indemnifies the Licensor against any liability incurred if the End User develops any Improvements that infringe the Intellectual Property Rights of a Third Party.
Personal Data
1. The Licensor may process personal information in accordance with its Privacy Policy to administer the Software.
2. The End User hereby consents to the Licensor collecting and using its personal information in accordance with its Privacy Policy.
Confidentiality
1. The Parties agree that:
  1. unless the Parties agree to the contrary, all Information provided by one Party to the other for the performance of the Agreement must be deemed confidential;
  2. the Parties must take all steps to keep each other’s Confidential Information strictly confidential, and any unauthorised use or disclosure of Confidential Information will be of detriment to the other Party; and
  3. one Party will not use the other’s Confidential Information for any purpose other than performing its obligations under this Agreement.
2. Each Party shall be entitled to disclose Confidential Information:
  1. where required to do so by law, regulation or order of a court of competent jurisdiction, but only to the extent necessary to comply with such law, regulation or order; and/or
  2. to its professional advisers who have agreed to keep confidential the Confidential Information.
Default
1. A Party’s default under this Agreement includes, but is not limited to:
  1. transferring all or any of its interest except in accordance with this Agreement;
  2. that Party fails to remedy a breach of any obligation under this agreement within 5 Business Days after receiving Notice from a Party to the Agreement (Non-Defaulting Party) to a Party in default (Defaulting Party) of that breach; and
  3. a Defaulting Party repeats a breach after having received written Notice from a Non-Defaulting Party warning that repetition of the breach will, or is likely to, result in that Defaulting Party being in default under this Clause 16 of its obligations under this Agreement.
2. If a Party is in default of its obligations under this agreement as described in Clause 16.1, (the Defaulting Party) then the Non-Defaulting Party may give a Notice in writing setting out the default (Default Notice) to the Defaulting Party, which outlines:
  1. the damages sustained (if any) resulting from the default by the Defaulting Party; and
  2. a remedy to the default, and reasonable time with which it will be remedied (if any).
3. A Default Notice is deemed to be received by the Defaulting Party in accordance with clause 6.1(g).
4. If the Default Notice is not remedied within 5 Business Days of its receipt by the Defaulting Party, or is not capable of being remedied, the matter may be referred to Dispute Resolution in accordance with Clause 17 (Dispute).
Dispute Resolution
1. Any dispute, controversy or claim arising out of, relating to or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be resolved by mediation.
2. A Party claiming that a dispute has arisen must notify the other Party of the dispute in writing (Dispute Notice) setting out the details of the dispute.
3. The Parties must act in Good Faith and use their best efforts to resolve the dispute.
4. If the Parties are unable to resolve the dispute within 10 Business Days after receipt of the Dispute Notice, the dispute may be referred at the request of any Party to an independent mediator determined by the Parties. In the absence of agreement as to who the mediator is to be, the mediator is to be appointed by the President of the Queensland Law Society.
5. The Parties must act in Good Faith and co-operate with the mediator and the other Party in a genuine attempt to resolve the Dispute within 10 Business Days after it is referred to the mediator (Mediation Period).
6. Each Party will bear their own costs in preparation for and participation in mediation. The mediator’s costs will be paid for as determined by the mediator.
7. If the Parties are unable to resolve the dispute within the Mediation Period, each Party agrees that the Dispute must be referred to an independent arbitrator determined by the Parties no later than 2 Business Days after the end of the Mediation Period. In the absence of agreement, the arbitrator is to be appointed by the President of the Queensland Law Society.
8. The arbitration shall be conducted in accordance with the Rules for the Conduct of Commercial Arbitration of the Institute of Arbitrators of Australia, and subject to those rules, in accordance with the provisions of the Commercial Arbitration Act (1994).
9. The seat of arbitration shall be Queensland, Australia. The language of the arbitration shall be English. The number of arbitrators shall be one.
10. Each Party will bear their own costs in preparation for and participation in arbitration. The arbitrator’s costs will be paid for as determined by the arbitrator.
Governing Law and Jurisdiction
1. The law governing this Agreement, its interpretation and construction, and any agreement to mediate or arbitrate, is the law of the Queensland, Australia.
Entire Agreement
1. This Agreement supersedes all previous agreements, understandings, representations and warranties about its subject matter and constitutes the entire agreement between the Parties relating to the subject matter of this Agreement.
2. There is no other written or oral understanding, agreement, warranty, representation whether expressed or implied extending, defining, varying or limiting this agreement or otherwise relating to the matter of this Agreement.
Indemnity
1. The End User indemnifies the Licensor and agrees to defend and hold the Licensor harmless against any liability, costs, damages, claims and demands, or loss of any kind (including consequential loss) which may be incurred, arising either directly or indirectly out of this Agreement and those losses are caused directly or indirectly by:
  1. the End User breaching its obligations under this Agreement; or
  2. the negligent act or omission or intentional misconduct by the End User or that of its agents, employees or subcontractors in connection with the performance of its obligations under this Agreement.
Limitation of Liability
1. To the maximum extent permitted by law, in no event will the Licensor, its partners, service providers or any of their officers, directors, employees or agents be liable whether in contract, tort, product liability, strict liability or otherwise for any damages, including, without limitation, direct, special, consequential, indirect, exemplary or punitive damages (including, without limitation, loss of profits, business interruption, corruption of content, and loss or inaccuracy of information), arising out of use, or inability to use, the Software, whether or not such damages were foreseeable.
2. This limitation on liability includes, but is not limited to, the transmission of any viruses which may infect the End User’s equipment, failure or mechanical or electronic equipment or communication lines, telephone or other interconnection problems (e.g., unable to access internet service provider), unauthorised access, theft, bodily injury, property damage, operator errors, strikes or other labour problems or any Force Majeure Event.
3. The Licensor does not guarantee continuous, uninterrupted or secure access to the Software.
4. Subject to clause 21.1 and to the maximum extent permitted by law, in no event will the Licensor and its service providers’ aggregate liability to the End User for any causes whatsoever exceed the lesser of ten thousand dollars (AUD$10,000) or the amount of Subscription Fees actually paid by the End User to the Licensor under this Agreement.
5. Notwithstanding anything contained in this clause 21, to the extent the Australian Consumer Law implies any guarantees with respect to the Software, then the Licensor’s liability (and that of its service providers) in respect of those implied guarantees is limited:
  1. in the case of goods, to any one or more of the following (as the Licensor and its service providers may in their discretion determine):
    1. the replacement of the goods or the supply of equivalent goods;
    2. the repair of the goods;
    3. the payment of the cost of replacing the goods or acquiring equivalent goods; or
    4. the payment of the cost of having the goods repaired; or
  2. in the case of services, to any one of the following (as the Licensor and its service providers may in their discretion determine):
    1. the supplying of the services again; or
    2. the payment of the cost of having the services supplied again, except as expressly provided elsewhere in this Agreement.
Warranty Disclaimer
1. No warranty of any kind is expressed or implied with respect to the Software or Services or their condition, merchantability, fitness for any particular purpose or use by the End User. The End User agrees to use the Software at its own risk.
2. The Software is provided on an “as is” basis with all faults, defects, bugs, and errors. The Licensor nor the agents of the Licensor will be liable for data loss, damages, loss of profits or any other kind of loss while using or misusing this Software.
3. The Licensor does not warrant that the operation of the Software will be uninterrupted or error-free.
4. Subject to clause 11.7, the Licensor reserves its right to upgrade, change, delete, modify, amend, correct, refine or discontinue any features and functionality of the Software at any time.

Severability
1. Any term of this Agreement which is wholly or partially void or unenforceable will be severed to the extent that it is void or unenforceable. The validity or enforceability of the remainder of this Agreement is not affected.
Exclusivity
1. The End User states it is not bound by any other commercial arrangement that would affect the legality of this Agreement.
Waiver
1. The failure, delay or omission by a Party to exercise a power, right or remedy conferred on that Party by this Agreement will not operate as a waiver of that power, right, or remedy and any single exercise of a power, right or remedy will not preclude another exercise of that power, or the exercise of another power, right or remedy under this Agreement.
Variations
1. An amendment or variation to this Agreement is not effective unless it is in writing and signed by all Parties. In this regard, the following will constitute acceptance by the End User:
  1. electronic acceptance such as by clicking “I agree” (or similar) upon notification of any variation to the terms of this Agreement; and
  2. continued use of the Software and Services following the written notification of any variation to the terms of this Agreement (provided that the Licensor has the express right to vary the term unilaterally).
Force Majeure
1. In no event shall the Licensor be responsible or liable for any failure or delay in the performance of its obligations arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services (Force Majeure Event).
2. It is agreed that the End User shall use reasonable efforts which are consistent with accepted practices in the relevant industry to resume performance as soon as practicable under the circumstances.
3. If the Parties are prevented from performing an obligation under this Agreement by reasons of a Force Majeure Event for which no agreed work-around exists to continue, the obligation will be suspended from the date of notice of the Force Majeure Event and the Agreement may be terminated in accordance with Clause 10.
Records, right to inspect and audit
1. The End User must maintain complete and accurate records of its use of the Software.
2. The End User:
  1. grants to the Licensor and its licensees for that purpose, upon notice to the End User of at least seven days, the right to inspect and/or audit the End User’s records and/or system in order to assess the End User’s compliance with this Agreement; and
  2. must co-operate with any investigation concerning the use by the End User of the Software.
3. Without limiting the generality of clause 28 above, the Licensor may within its sole discretion monitor the End User’s use of the Software, including without limitation by accessing logs, but will not access the End User’s systems for that purpose without giving notice in accordance with clause 28.2 above.

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End User Agreement