EULA – End User License Agreement

SmiKar Software End User License Agreement

END USER LICENSE AGREEMENT

1      AGREEMENT

This End User License Agreement is between SmiKar Software Pty Ltd and:

(a) if there has been no charge for the license  (an Evaluation License), the company or other entity that installed the Software for the purpose of the evaluation; or

(b) if there has been a charge for the license (a Production License), the company or other entity that applied for the Production Licence

2      DEFINITIONS

Affiliate means an entity owned by, controlling, controlled by, or under common control with, directly or indirectly, an entity.  For this purpose, one entity “controls” another entity if it has the power to direct the management and policies of the other entity (for example, through the ownership of voting securities or other equity interest, representation on its board of directors or other governing body, or by contract).

Agreement means the terms and conditions in this End User License Agreement and the Support Policies, and, if this is a Production License any details in the Contract Details, as may be amended by a Variation.

Authorised Platform means servers and workstations that are owned, leased or controlled by You or Your Affiliates on which the Software is designed to be used.

Confidential Information means any non-trivial non-public information however recorded, preserved, disclosed or communicated (whether directly, indirectly, orally or by writing), disclosed by either party or its Representatives to the other party or its Representatives in connection with this Agreement that is or, ought to have been, understood by the Parties, using reasonable business judgment, to be confidential.  The Software and related documentation, License Keys and this Agreement, including the terms, pricing and Fees payable, are agreed to be the Confidential Information of SmiKar Software.

Contract Details means the details of any transaction for a Production License that relate to the Software license, including the maximum number of Users (or other license metric that is applicable to the particular Software program), the Software Upgrade Assurance service and applicable Fees and Taxes, that are advised to You and/or are selected, or entered, by You on the Website prior to You placing Your order for the Production Licence, or to which You have otherwise agreed in writing with SmiKar Software.

Discloser means the party that makes a disclosure of Confidential Information.

Effective Date means:

(a) for an Evaluation License, the first date of installation of the Software on any of Your Authorised Platforms; or

(b) for a Production License, the date that the person clicked “I Agree” during the installation process.

Evaluation License means the right to use the Software in accordance with clause 4.1.

Fees means the amount payable for the relevant Software license, the Software Upgrade Assurance service or other items acquired under the Agreement, as applicable, exclusive of Taxes.

Intellectual Property Rights means copyright, moral rights, trade mark, design rights, service marks, patent, semiconductor or circuit layout right, trade secrets, know-how, database rights or other rights in the nature of intellectual property rights (whether registered or unregistered), or any right to registration of such rights, existing anywhere in the world, or protected by statute from time to time, whether created before, on or after the Effective Date.

License Key means any form of license file, lock, password or other mechanism that may be used to control access to, or manage use of, the Software.

SmiKar Software Marks means all trademarks, service marks, logos or other words or symbols identifying the Software, Software Upgrade Assurance service, SmiKar Software Customer Care service or SmiKar Software’s business (whether owned by SmiKar Software or any SmiKar Software Affiliate), and all trademarks, service marks, logos or other words or symbols identifying any third party software that is licensed by the third party to SmiKar Software and integrated in the Software.

Software Upgrade Assurance means the services described in clause 5.

Production License means the right to use the Software in accordance with clause 4.2.

Recipient means the party that receives a disclosure of Confidential Information.

Representatives means the employees, agents, contractors of a party, or those of any Affiliate, and the professional representatives of a party providing advice in relation to this Agreement, including the lawyers, bankers, auditors, accountants and insurers of a party.

Software means the object code version of SmiKar Software’s software program made available to You, and any Updates and Upgrades that may be made available to You by SmiKar Software in its discretion, under this Agreement.  The term Software does not include any beta, pre-release or other special release programs.

Support Polices means SmiKar Software’s document that describes the policies, processes and scope of support services for the Software.  The Support Policies may be updated by SmiKar Software in its discretion from time to time.

Taxes includes goods and services taxes or other sales taxes, duties, withholding taxes, levies, imposts or other charges or duties levied by any federal, state or local government which arise out of or in connection with the Software, Software Upgrade Assurance service or this Agreement, and any interest, penalties or liabilities incurred on such amounts, but excludes taxes based on the net income of SmiKar Software.

Update means any bug fixes, patches or workarounds for the Software that have been produced primarily to overcome defects in the Software without significantly altering the functionality of the Software.

Upgrade means a version of the Software that has been produced primarily to extend, alter or improve the Software by providing additional functionality or performance enhancements (whether or not defects are also corrected).  Upgrades do not include any software that is marketed by SmiKar Software as a different product.  SmiKar Software shall determine in its discretion whether any software is an Upgrade or a different product.

User means an identifier (individual’s name or generic term such as “purchasing officer”) that is listed as a user in the Software’s database.  Any User that is defined by a generic term may only be used by a single individual.  All Users from You and/or Your Affiliates who have identifiers listed as users in the Software’s database are included in aggregate in the total number of Users.

Variation means any addition, deletion or substitution to any part of this Agreement that is made in accordance with this Agreement.

You (and Your) refer to the other party to this Agreement, being the entity that is the licensee of the Software.

Website means SmiKar Software’s website from which You can acquire the Software, Software Upgrade Assurance service, additional Software programs, add more Users or other license usage or extended Your Software Upgrade Assurance service.

3      AGREEMENT AND LICENSE

3.1 In the case of an Evaluation License, the person that installs the Software and clicks “I Agree” during the installation process warrants to SmiKar Software that he/she has authority to enter into this Agreement on behalf the entity that is his/her employer.

3.2 In the case of a Production License, the person that clicked “I Agree” during the installation process warrants to SmiKar Software that he/she has authority to enter into this Agreement on behalf the entity that was entered into the Company Details section during the purchase process.

3.3 By using the Software You accept this Agreement as from the Effective Date, and acknowledge that You are bound by the terms and conditions of the Agreement.

3.4 SmiKar Software may send a “proof of purchase” confirmation email or other document (Order Confirmation) after You acquire a Production License, summarising the Contract Details. If You do not notify SmiKar Software in writing of any discrepancy in the Contract Details as set out in the Order Confirmation within 48 hours of receiving it, then you accept the Contract Details as set out in the Order Confirmation.

Evaluation

3.5 If You requested a free of charge Evaluation License for the Software (via the Website or other means) then SmiKar Software will make the Software available for You to download from the Website, subject to Your acceptance of this Agreement.  If You accept this Agreement then You acquire an Evaluation License, from the Effective Date until the license is terminated in accordance with clause 3.7.  There is no Fee payable for an Evaluation License.

3.6 SmiKar Software does not provide Software Upgrade Assurance services for Evaluation Licenses, but may, in its discretion, provide assistance, advice and error correction services to support Your evaluation of the Software.

3.7 An Evaluation License:

(a) terminates automatically after 60 days from the Effective Date, unless extended by agreement with SmiKar Software;

(b) will be terminated if the Agreement terminates in accordance with clause 12.

Upgrading to a Production License

3.8 You may upgrade an Evaluation License to a Production License by agreeing to and paying the relevant Fees and Taxes.  You may also order Software Upgrade Assurance services at the same time.  The Production License and any Software Upgrade Assurance service will be provided on the terms and conditions of this Agreement.  In the case of a Production License, SmiKar Software will provide You with a License Key to enable You to use the Software.

Production License

3.9 Where you acquire a Production License by completing the purchase process, then You acquire a license for the Software in accordance with clause 4.2 and the right to receive and install any Updates for that Software that may be issued by SmiKar Software from time to time.  You must install Updates promptly, especially Updates that have been made available for security issues.  There are no additional Fees for this right to receive Updates.

Software Upgrade Assurance

3.10 Where You ordered Software Upgrade Assurance services in the Contract Details, upon acceptance of your order SmiKar Software will provide the Software Upgrade Assurance services for 12 months from the Effective Date in accordance with clause 5.

Additional Licenses, Usage or Software Upgrade Assurance.

3.11 If You wish to add more Software programs, add more Users or other license usage or extended Your Software Upgrade Assurance service and such items are available from SmiKar Software at the time, You may order those items by completing and agreeing the relevant Contract Details with SmiKar Software and agreeing to pay SmiKar Software’s then current Fees and Taxes for such items.  Any such items will be provided on the terms and conditions of this Agreement.

3.12 If You do not extend Your Software Upgrade Assurance service so that Software Upgrade Assurance service is provide continuously, and subsequently wish to re-instate Software Upgrade Assurance service, then You must pay SmiKar Software’s then current support re-instatement fee in addition to the then current Fees for the Software Upgrade Assurance service prior to the Software Upgrade Assurance service being re-instated.

Variations

3.13 Subject to clauses 3.8 and 3.11, this Agreement, or any part of it, may be varied by the parties agreeing to the Variation in writing (and the Variation will be binding when both parties have signed the Variation).

4 LICENSES

Evaluation License

4.1 From the Effective Date until the license is terminated in accordance with this Agreement, SmiKar Software grants You a non-exclusive, non-transferable, limited use license solely to install and run the Software on one or more computers that are Authorised Platforms for You and your Affiliates to evaluate the Software to determine whether to acquire a Production License. Under this Evaluation License You and Your Affiliates may use the Software for testing and evaluation in a production environment prior to the termination of the Evaluation License.

Production License

4.2 Subject to SmiKar Software’s receipt of the applicable Fees and related Taxes in accordance with the Contract Details, SmiKar Software grants You a non-exclusive, non-transferable, indivisible, limited use license solely to install and run the Software on one or more computers that are the Authorised Platforms, for use by You or Your Affiliates from the Effective Date until the license is terminated in accordance with this Agreement, for:

(a) up to the maximum number of computers or other license metric set out in the Contract Details, for Your internal business data processing/printing requirements in accordance with, and subject to any other limitation of use set out in, the Contract Details; and

(b) for testing, disaster recovery and back up (hot or cold), without additional Fees.

Delivery and installation

4.3 SmiKar Software will make the Software available for download from the Website.  If You specifically request, SmiKar Software will ship to You a physical copy of media with the software loaded on it, at additional cost.  You are responsible for copying and installing the Software on the Authorised Platforms.  You must follow any instructions provided by SmiKar Software when installing the Software.  All Software is deemed to be accepted by You upon successful installation on the first Authorised Platform.

Prohibited Actions

4.4 Nothing in this Agreement permits You to:

(a) use the Software to provide any facility management or service bureau service, or for the benefit of any third party (other than an Affiliate);

(b) disclose the Software or any online or hard copy documentation related to the Software to any third party (other than an Affiliate);

(c) adapt, translate, publish, communicate to the public, or create any derivative work or translation of the Software, unless expressly permitted by law;

(d) sub-license, lease, rent, loan, assign, novate or otherwise transfer the Software to any third party;

(e) reverse engineer, reverse compile, de-compile or disassemble the object code of the Software or any part of the Software (or other underlying data), or otherwise attempt to derive the source code of the Software, except to the extent the permitted by law;

(f) use any part of the software other than as an integrated part of the overall Software program;

(g) remove, alter or obscure any SmiKar Software Marks, or any proprietary or restricted use notice on the Software;

(h) allow the Software to become the subject of any charge, lien, encumbrance or security interest; or

(i) deal in any other manner with any or all of Your rights and obligations under this Agreement.

Compliance

4.5 You acknowledge and agree that the License Key may prevent, hinder or reduce availability of features where You are using the Software in excess of the usage rights that You have agreed to pay for.

4.6 During the period of this Agreement and for 2 years thereafter, You must permit SmiKar Software, or its nominee, to inspect and have access to the Software, the usage logs in the Software and to any records kept in connection with this Agreement, for the purposes of ensuring that You (and Your Affiliates) are complying with the terms of this Agreement.  If SmiKar Software requires access to Your offices (or those of Your Affiliates) in order to access the Software or the relevant records then:

(a) SmiKar Software must provide reasonable advance notice to You;

(b) any access must be during business hours or other times agreed by You;

(c) SmiKar Software must use reasonable endeavors to minimize any disruption to Your business; and

(d) if SmiKar Software uses a nominee to conduct the inspection, such nominee must not be a competitor to You and must sign a non-disclosure agreement with SmiKar Software that protects any information found during the inspection on terms that are no less protective than those terms that are included in clause 10 of this Agreement.

5      SOFTWARE UPGRADE ASSURANCE

5.1 This clause 5 applies during the period when You have acquired Software Upgrade Assurance services for a Production License.

5.2 If and when SmiKar Software makes an Update or Upgrade generally available to customers with Software Upgrade Assurance services for the Software, the Update or Upgrade will be made available to You at no additional charge.  You must, at your own cost, download and install the Update or Upgrade within a reasonable period.

5.3 If You (or any of Your employees or employees of any of Your Affiliates) believe that there is a defect in the Software those employees should report it to Your internal support desk personnel, and Your internal support desk personnel should report it to SmiKar Software’s support email address 24/7. You must ensure that Your internal support desk personnel are technical, competent and trained in the use of Software.  They must use reasonable efforts to resolve the issue prior to contacting SmiKar Software for assistance.

5.4 SmiKar Software will use its best efforts to provide a remedy or a workaround for any defect in the Software that is reported to its support address in a timeframe that is reasonable given the nature of the issue and the impact on Your business operations.

5.5 SmiKar Software shall have no obligation to provide Software Upgrade Assurance services:

(a) in respect of any Software which has not had any Update or Upgrade installed prior to the date that SmiKar Software has notified its customers generally that is the “end of life” date for that version.  SmiKar Software shall provide its customers with at least 90 days notice, including by posting notice on the Website, of an “end of life” date for that particular version;

(b) to any adaptations, translations or derivative works made to the Software; or

(c) for any Evaluation License.

5.6 SmiKar Software shall have no obligation to provide Software Upgrade Assurance services where faults arise from:

(a) misuse, incorrect use of or damage to the Software from whatever cause (other than any act or omission by SmiKar Software), including failure or fluctuation of electrical power;

(b) failure to maintain the necessary environmental conditions for use of the Software;

(c) use of the Software in combination with any equipment or software other than Authorised Platforms;

(d) any breach of Your obligations under this Agreement;

(e) having the Software maintained by a third party; or

(f) user error.

5.7 If it is necessary for SmiKar Software to attend Your (or Your Affiliates’) premises to provide Software Upgrade Assurance services, or SmiKar Software determines that the work it performed in relation to a logged issue was caused by any of the items in clause 5.6, then You must pay for such work at SmiKar Software’s then current Fees and charges as well as any expenses (and travel time) incurred by SmiKar Software in performing such work.

6      FEES AND TAXES

6.1 SmiKar Software will provide You with the ability to download the Software from our Website as an Evaluation License for use in accordance with this Agreement without charge.

6.2 Where You agree on the Contract Details to pay the Fees, charges and Taxes for any Production License, Software Upgrade Assurance, additional Software, or extended usage rights, further period of Software Upgrade Assurance or other thing acquired under this Agreement by credit card (or other online payment mechanism supported by SmiKar Software) then you must complete the relevant details and authorizations stated on the Website.  SmiKar Software will provide you with a tax invoice/receipt promptly following receipt of Your payment.

6.3 Where You agree on the Contract Details to pay the Fees, charges and Taxes for any Production License, Software Upgrade Assurance, additional Software, or extended usage rights, further period of Software Upgrade Assurance or other thing acquired under this Agreement following receipt of a tax invoice, SmiKar Software will provide You with a tax invoice for the Fees and Taxes at the start of the license or the supply of the service and You must pay this tax invoice within 14 days of receipt.

6.4 You are solely responsible for ensuring that SmiKar Software receives the net amount of the Fees for any transaction under this Agreement, including:

(a) You must pay any fee for receiving the Software on physical media;

(b) You must pay any fee associated with the use of a credit card (or other payment mechanism accepted by SmiKar Software);

(c) You must pay any fee associated with a bank charge or transfer fee;

(d) You must pay any fee incurred by SmiKar Software for any charge back or other payment failure, plus SmiKar Software’s administration fee for dealing with a failed payment (other than where a refund of the Fees is required to be provided by law);

(e) You are responsible to pay all Taxes.  All payments under the Agreement must be made free and clear and without deduction for any and all present and future Taxes.  Payments due to SmiKar Software under the Agreement must be increased so that the amounts received by SmiKar Software, after provision for Taxes and all Taxes on such increase, will be equal to the amounts required under the Agreement as if no Taxes were due on such payments.

6.5 You irrevocably authorize SmiKar Software to deduct from your credit card (or any debit card accepted by SmiKar Software) any amount due and payable under this Agreement without further reference to You.

6.6 You must pay a late charge for any failure to make any payment by the date required under the Agreement, calculated daily using a rate that is 4% over the Reserve Bank of Australia’s Cash Rate, from the date that the payment first becomes overdue, to the date that the payment is received by SmiKar Software, both dates inclusive.

6.7 If any Fee, charge or Tax is not received by the required date, SmiKar Software may suspend Your access to the Software or suspend or cease providing services to You until the outstanding amounts (including applicable late charges, damages, costs and expenses) are paid.  You do not have any claim for breach of contract or otherwise for any action taken by SmiKar Software under this clause.

7 TRADEMARKS

7.1 You acknowledge and agree that SmiKar Software is the owner and/or licensee of the SmiKar Software Marks.  You do not acquire any right to use, or interest in, any of the SmiKar Software Marks.  You must not at any time or in any way assert any ownership of, or any right in, the SmiKar Software Marks and You must not contest the right of SmiKar Software or any SmiKar Software Affiliate or any of their licensors to the use of any of the SmiKar Software Marks.

7.2 SmiKar Software will not use Your (or those of Your Affiliates) trademarks, logos or branding without your prior written consent.  SmiKar Software may disclose the fact that You (and Your Affiliates) are customers and the nature of Your (and Your Affiliates’) use of the Software to third parties in private conversations and documentation, but SmiKar Software will not use Your name (or the names of Your Affiliates) in SmiKar Software’s general marketing materials or websites etc without Your prior written consent.

8 PROPRIETARY RIGHTS

8.1 All Intellectual Property Rights that are created by any person that are adaptations, translations and derivative works in the Software or related documentation, are and shall remain the exclusive property of SmiKar Software (and its licensors, if any) or shall vest in or be transferred to SmiKar Software immediately upon creation, as the case may be.

8.2 Except for the rights expressly granted by SmiKar Software to You under this Agreement:

(a) SmiKar Software and its licensors, if any, reserve all right, title and interest in and to the Software or related documentation and all Intellectual Property Rights in them;

(b) no right, title or ownership interest in or to the Software or related documentation whether by implication, estoppel or otherwise, is granted, assigned or transferred to You under or in connection with this Agreement.

8.3 You must not make any unauthorized copies of the whole or part of the Software or related documentation.  You acknowledge and agree that the unauthorized disclosure, use or copying of the Software or related documentation may cause SmiKar Software serious financial loss that may not be adequately compensated by monetary damages.  Accordingly, in the event of any unauthorized disclosure, use or copying of the Software or related documentation, You agree that SmiKar Software shall have the right to seek injunctive relief to stop such unauthorized disclosure, use or copying.

9      CONFIDENTIAL INFORMATION

9.1 The Recipient must not use any of the Discloser’s Confidential Information except in connection with the performance of its obligations specified in this Agreement.

9.2 The Recipient must not disclose the Discloser’s Confidential Information to any third party without obtaining the Discloser’s prior written consent, provided that the Recipient may disclose the Discloser’s Confidential Information to:

(a) its employees, agents and contractors, and those of any of its Affiliates, who have entered into a written agreement with the Recipient that is no less protective of the Discloser’s Confidential Information than this Agreement provided those persons have a need to know such information for the purposes of this Agreement;

(b) to its lawyers, bankers, auditors, accountants and insurers, who have a need to know the information in order to provide professional advice to the Discloser relating to this Agreement.

9.3 You must ensure that the License Key is not disclosed to any other person or company.

9.4 The Recipient must use, and must ensure that any person to whom it is permitted by this Agreement to disclose the Discloser’s Confidential Information to uses, the same measures to protect the Discloser’s Confidential Information as it uses to protect its own confidential information, but in no event less than reasonable measures.

9.5 The restrictions in this clause 9 shall not apply to information that:

(a) is independently developed by the Recipient without any access to the Confidential Information of the Discloser;

(b) becomes known to the Recipient without restriction, from a third party who, to the Recipient’s knowledge, was not bound by a confidentiality agreement with the Discloser, or otherwise prohibited from disclosing the information to the Recipient, or had the right to disclose it;

(c) was available to the Recipient on a non-confidential basis prior to disclosure by the Discloser;

(d) was lawfully in the possession of the Recipient before the information was disclosed to it by the Discloser, and that was not subject to a confidentiality obligation;

(e) is or becomes in the public domain through no act or omission of the Recipient;

(f) the parties agree in writing is not confidential or may be disclosed; or

(g) is required to be disclosed under an order or requirement of a court, administrative agency, or other governmental body (but only to the minimum extent required to comply), provided however, that Recipient shall provide prompt notice to Discloser of any potential disclosure and shall use its reasonable efforts to prevent disclosure of such information.

Privacy

9.6 The parties must:

(a) comply with the requirements of any privacy law in the country in which the party is located and in any country to which the personal information is to be sent; and

(b) only use, manipulate, store and handle personal information for the purposes of meeting its obligations under this Agreement.

9.7 You warrant that:

(a) You have obtained the informed consent from each individual about whom SmiKar Software will obtain personal information from You as a result of this Agreement; and

(b) SmiKar Software, its Representatives and their permitted successors, assignees and sublicensees may use that individual’s personal information in any manner that may be reasonably contemplated by this Agreement, including a transfer overseas for the purpose of providing support and error correction services.

10      LIMITATION OF LIABILITY

10.1 To the extent permitted by law, SmiKar Software will not be liable for any loss, damage or expense which is indirect, consequential, special or exemplary damages, nor for any lost profits, lost revenue, lost data or business interruption, even if SmiKar Software has been advised of, knows of, or should have known of the possibility of such loss, damage or expense.

10.2 You acknowledge and agree that owing to the nature of the Software, SmiKar Software does not represent or warrant that:

(a) access to the Software will be continuously available; or

(b) the Software will be error free.

10.3 You act as agent for Your Affiliates in respect of this Agreement and are responsible to SmiKar Software for their acts and omissions.

11      TERMINATION

11.1 SmiKar Software may immediately terminate this Agreement for cause by giving You written notice if You:

(a) breach any of the provisions of clauses 4, 6, 7.2, 8.3, 9 or 12.6;

(b) breach any other provision of the Agreement and You do not remedy it within 14 days of SmiKar Software providing You written notice of the breach;

(c) cease to carry on business, are unable to pay Your debts as they fall due, You enter into liquidation or have a controller, managing controller, liquidator or administrator appointed or suffer any similar event in any jurisdiction; or

(d) merge with, sell substantially all of Your assets, or You are subject to a change of control.  A “change of control” shall be deemed to occur when an entity acquires fifty percent (50%) or more of Your voting shares or equity interest or fifty percent (50%) or more of Your assets, in the event of a change of a majority of Your Board of Directors (or majority of the partners if a partnership) or if there is any other effective change of control.

11.2 You may immediately terminate this Agreement for cause by giving SmiKar Software written notice if SmiKar Software:

(a) breaches any of the provisions of this Agreement and SmiKar Software does not remedy it within 30 days of You providing SmiKar Software written notice of the breach; or

(b) ceases to carry on business, is unable to pay its debts as they fall due, enters into liquidation or has a controller, managing controller, liquidator or administrator appointed or suffer any similar event in any jurisdiction.

11.3 If this Agreement terminates:

(a) any license for Software and its related Software Upgrade Assurance terminates immediately;

(b) each party shall immediately return to the other (or at the other party’s request destroy) any of the other’s Confidential Information;

(c) You must ensure that all copies of the Software installed pursuant to this Agreement are uninstalled and deleted from all hardware in your possession or control within 14 days of the date this Agreement is terminated.

12.4 Any termination of this Agreement shall not prejudice, limit or restrict any other rights or remedies either party may have arising prior to such termination.  To the extent permitted by law, SmiKar Software shall be under no obligation to refund any amounts paid by You for any of the Software or Software Upgrade Assurance services that have been provided prior to any termination of this Agreement.

12      GENERAL

Notices

12.1 Any notice that is given under this Agreement:

(a) by SmiKar Software may be:

(i) posted to You;

(ii) emailed to You at any email address provided by You;

(iii) included on any invoice (which may be emailed or posted to You); or

(iv) posted on the Website.  You must review the Website regularly for notices.

(b) by You must be posted to SmiKar Software at the address stated on the latest invoice.

12.2 A notice is deemed to be received:

(a) when posted from Australia to an address in Australia; within 3 business days of the date when it was posted;

(b) when posted from an address outside of Australia, within 7 days of the date when it was posted; or

(c) when emailed; within 1 business day of the date that the email was sent, provided no notice of failure has been received by the sender;

(d) when posted on the Website, within 3 business days of the date it was posted.

Relationship of Parties

12.3 The parties to this Agreement are independent contractors.  Nothing in this Agreement shall be deemed to create an agency, employment, partnership, fiduciary or joint venture relationship between the parties, constitute any party the agent of another party, nor authorize any party to make or enter into any commitments for or on behalf of any other party.

Compliance with Laws

12.4 You must comply with all laws which are relevant to You performing Your obligations under this Agreement.

Assignment

12.5 You must not assign or transfer this Agreement or any rights or obligations under this Agreement, in whole or part, without the prior written consent of SmiKar Software.

12.6 SmiKar Software may assign or transfer this Agreement, in whole or part, without Your consent to any SmiKar Software Affiliate or in connection with a merger, acquisition, or purchase of fifty percent (50%) or more of its assets.  SmiKar Software may assign or transfer all or part of any of its rights to receive any Fees and Taxes or other monies due under this Agreement, to any person without Your consent.  Notwithstanding clause 9, SmiKar Software may disclose any of Your Confidential Information which is reasonably necessary to affect any assignment or transfer.

Waiver

12.7 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy.  No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

Remedies

12.8 Except as specifically provided otherwise in this Agreement, the rights and remedies provided under this Agreement are cumulative and in addition to, and not exclusive of, any rights or remedies provided by law.

Severability

12.9   If any part of this Agreement is determined to be invalid, illegal or unenforceable by any court or competent authority, such part will be severed from the remainder of the Agreement and the remaining provisions will continue in force.

Force Majeure

12.10  Except for Your obligations to pay SmiKar Software under this Agreement, neither party shall be in breach of this Agreement nor liable to the other party for any failure or delay in performance caused by events beyond the party’s reasonable control.

Agreement

12.11  All clauses which naturally survive termination of the Agreement, including clauses 4.6, 7.1, 8, 9, 10, 12.3(b), 12.4 and 13, will survive termination of this Agreement.

12.12  The parties are entitled to rely on any notice or communication in electronic format, including any facsimile or email, that on its face appears authentic, and that has the purported author’s name on it to the same extent as if it were a document written by the author.  The parties consent to this Agreement being signed or varied through electronic communication.

12.13 To the extent permitted by law:

(a) SmiKar Software excludes any warranty or guarantee not expressly stated in this Agreement, whether express, implied or statutory, including any guarantees or warranties of acceptability and fitness for a particular purpose;

(b) this Agreement constitutes the entire agreement between the parties regarding the subject matter and supersedes all prior or contemporaneous agreements, arrangements, understandings and communications, whether written or oral.

Export

12.14 You acknowledge and agree that the Software may be subject to applicable export and import laws.  You agree not to export the Software or any direct product thereof, directly or indirectly in violation of these laws, nor will they be used for any purpose prohibited by these laws, including nuclear, chemical or biological weapons proliferation.

Governing Law

12.15 If You are resident, domiciled or incorporated in the USA, this Agreement will be governed by the laws of the State of Oregon, USA, without regard to its conflict of law principles.  The parties submit to the exclusive jurisdiction of the courts in the State of Oregon. You hereby agree any claims will be brought exclusively in the federal or state courts located in Oregon and the parties hereby irrevocably consent to the personal jurisdiction and venue of the courts located in Oregon for the purpose of litigating any and all such claims.

12.16 In all other cases, this Agreement will be governed by the laws of the State of Victoria, Australia, without regard to its conflict of law principles.  The parties submit to the exclusive jurisdiction of the courts in the State of Victoria, Australia.

All questions, comments or concerns with respect to this Agreement shall be directed to:

SMIKAR Software

admin@smikar.com

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