End User License Agreement (EULA)

Version               1.0

PLEASE READ THIS END USER LICENSE AGREEMENT (EULA) CAREFULLY BEFORE TRIALING, SUBSCRIBING TO, ACCESSING OR USING THE JOURNEYHUB PRODUCTS OR ANY UPDATES, MODIFICATIONS OR ENHANCEMENTS TO THE JOURNEYHUB PRODUCT.  BY TRIALLING, SUBSCRIBING TO, ACCESSING OR USING THE SOFTWARE, YOU ARE ENTERING INTO A CONTRACT WITH THE COMPANY AND AGREEING TO BE BOUND BY THE TERMS OF THIS EULA.

IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT TRIAL, SUBSCRIBE TO, ACCESS OR USE THE SOFTWARE.

WE RECOMMEND THAT YOU SAVE OR PRINT A COPY OF THIS EULA FOR YOUR FUTURE REFERENCE.

THE COMPANY MAY MODIFY OR AMEND THE TERMS OF THIS EULA BY POSTING A COPY OF THE MODIFIED OR AMENDED EULA ON THE COMPANY’S WEBSITE (www.journeyhub.com.au). YOU WILL BE DEEMED TO HAVE AGREED TO SUCH MODIFICATION OR AMENDMENT BY YOUR DECISION TO CONTINUE USING THE SOFTWARE FOLLOWING THE DATE IN WHICH THE MODIFIED OR AMENDED EULA IS POSTED ON THE COMPANY’S WEBSITE. PLEASE CHECK FREQUENTLY FOR UPDATES TO THESE TERMS. IF YOU DO NOT AGREE WITH ANY UPDATED TERMS, (i) YOU MUST NOTIFY THE REPRESENTATIVE OF THE COMPANY WITH WHOM YOU HAVE BEEN DEALING WITHIN THREE (3) DAYS FROM THE POSTING DATE, (ii) YOU MUST STOP USING THE SOFTWARE PERMANENTLY, AND (iii) YOUR TRIAL OF, OR SUBSCRIPTION TO, THE SOFTWARE WILL TERMINATE IMMEDIATELY.

REFERENCES TO “CUSTOMER’, “YOU”, “YOUR” AND VARIATIONS OF IT REFER TO EACH PERSON USING THE SOFTWARE.  IF YOU ARE TRIALLING OR SUBSCRIBING TO THE SOFTWARE ON BEHALF OF YOUR COMPANY OR BUSINESS ENTITY, “YOU” ALSO REFERS TO SUCH ENTITY OR BUSINESS, AND YOU WARRANT YOU HAVE AUTHORITY TO BIND THE ENTITY OR BUSINESS TO THIS EULA. 

1.               Definitions

The terms used in this EULA have the meanings given below:

Agreement means the agreement comprising this EULA and the relevant Order.

Customer means the customer specified in the relevant Order.

Customer Data means any content, materials, data and information input (whether directly or indirectly) into the Software by the Customer or Customer Users.

Customer User means an individual who the Customer permits or invites to use the Software, or whose data is inputted into the Software, which may include Customer employees and contractors, and tenants of, or visitors to, the Site and their respective employees.

Documentation means the Company’s standard documentation for the Software, as made available to the Customer from time to time.

Due Date means the date by which the Customer must pay the Fees to the Company, as specified in the relevant Order.

Fee means the subscription fees specified in the Order which is payable by the Customer to the Company pursuant to the terms and conditions of this EULA.

Feedback means any comments or other feedback the Customer or Customer Users may provide to the Company during the term of this Agreement about the functionality and performance of the Software, including identification of potential errors, improvements, enhancements and/or additional functionality.

Hardware has the meaning given in clause 2.4.

IP Claim has the meaning given in clause 7.1.

Intellectual Property Rights means patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs (including in relating semiconductor topography), database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Order means an order form for the supply of the Software signed, or accepted through any other electronic means, by the Company and the Customer.

Software means the JourneyHub software and includes any updates, modifications or enhancements to the JourneyHub product and specifically excludes any hardware (including sensors or cameras) or third-party software used in connection with the JourneyHub product.

Subscription Services means the subscription services that the Company will provide to the Customer as specified in an Order.

Subscription Term means the applicable initial and/or renewal subscription term as set out in the Order.

Trial Services means the trial subscription services for the Software that the Company will provide to the Customer as specified in an Order.

Trial Term means the period set out in an Order during which the Customer will trial the Software pursuant to the terms and conditions of the EULA.

Site means the building(s) or properties identified on an Order (or later agreed by the parties in writing).

the Company means the uSpark Pty Ltd (ABN 63 642 219 958) and includes its related bodies corporate, affiliates, assigns and licensors.

2.             License

2.1         Trial:  Subject to the other terms and conditions of this EULA, the Company hereby grants the Customer a limited, non-exclusive, non-transferable, non-sub-licensable license to trial the Software at the Site during the Trial Term solely for the Customer’s internal business purposes. 

2.2         Software. Subject to and conditional upon the Company and the Customer entering into an Order, the Customer paying the Fees by the Due Date and complying with the terms and conditions of this EULA, the Company hereby grants the Customer a limited, non-exclusive, non-transferable, non-sub-licensable license to use the Software as a smart workplace solution during the Subscription Term.

2.3         Hardware and devices. Except where clause 2.4 applies, the Customer acknowledges and agrees that the use or license of any hardware or devices in connection with the Software is directly between the Customer and owner or licensors of those hardware or devices. 

2.4         Kontakt.io Anchor Beacons. If an Order specifies that the Company will sell Kontakt.io anchor beacons (Hardware) to the Customer for use in connection with the Software then the additional terms below apply in relation to the sale

2.4.1 The Hardware is sold subject to Kontaki.io standard Terms of Service and Sale available at: https://kontakt.io/terms-of-sale-and-service/ (other than in respect of pricing, payment terms, privacy, which are governed by this EULA and the applicable Order), with references to ‘Kontakt.io’, ‘we’, ‘us’ and ‘our’ being read as references to ‘the Company’ and references to ‘you’ and ‘your’ being read as references to ‘the Customer’, other than the clauses headed ‘payment’, ‘pricing and price reductions/corrections’, ‘privacy’, ‘arbitration clause and forum selection’ and the governing law clause, which do not apply.  Clauses 2.4.2 and 2.4.3 prevail over any provision in the Terms of Service and Sale.

2.4.2 Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

2.4.3 Notwithstanding clause 2.4.2, as permitted under the Australian Consumer Law, our liability to you for any defect in the Hardware is limited to replacement of the goods or the supply of equivalent goods.

2.5         Third Party Software.  The Software may utilise or include third party software, code and files that are subject to open source or third-party license terms and conditions (Third Party Software).

2.5.1       The Customer acknowledges and agrees that its right to access and use such Third Party Software as part of the Software is subject to and governed by the terms and conditions of the open source or third party license applicable to such Third Party Software, including, without limitation, any applicable acknowledgements, license terms, restrictions and disclaimers contained therein. In the event of a conflict between the terms of this EULA and the terms of such open source or third-party licenses, the terms of the open source or third party licenses shall control with regard to the Customer’s use of the relevant Third Party Software. In no event shall the Software or components thereof not provided to the public under third-party open source licenses be deemed to be “open source” or “publicly available” software.

2.5.2    The Company does not make any warranty whatsoever regarding any Third Party Software, or whether there are sufficient Intellectual Property Rights for the Customer to use any of it in connection with the Software. Any claims regarding Third Party Software are solely between the Customer and any applicable third party licensor or owner of Intellectual Property Rights, and the Company disclaims all liability for it.

2.5.3     The applicable open source licenses may give the Customer rights to modify and distribute the original open source code as may be expressly stated in the applicable open source license. Nothing herein limits the rights available to the Customer under applicable open source licenses.

2.5.4    The third-party licensors reserve all right and title in and to their licensed works, including all Intellectual Property Rights, subject only to the limited licensed rights granted to the Customer in this EULA or the applicable third-party end user license agreement. The Customer agrees to comply with the applicable terms, only use third-party property accessible through the Software in connection with the Customer’s use of the Software under this EULA, and agrees not to claim ownership of any such third-party property.

3.             Trial

3.1          Trial Services. Subject to the Customer complying with the terms and conditions of this EULA, the Company will provide the Trial Services to the Customer during the Trial Term at no charge to the Customer or as otherwise specified in the Order (if any).

3.2         Feedback.  The Customer agrees to give the Company regular Feedback during the Trial Term.  By submitting any Feedback, the Customer assigns all right, title, and interest in and to the Feedback to the Company and nothing in this Agreement limits the Company’s right to independently use, develop, evaluate, or market products or services, whether incorporating the Feedback or otherwise.

3.3         Beta Version. The Customer acknowledges and agrees that the Trial Services are a beta version and still under development, may be inoperable or incomplete and are likely to contain errors or bugs.  The Company makes no representation that the Trial Services will ever be made generally available for purchase.

4.             Subscription

4.1          Subscription Services. Subject to the Customer paying the Fees by the Due Date and complying with the terms and conditions of this EULA, the Company will provide the Subscription Services to the Customer during the Subscription Term. At the end of the Subscription Term, Subscription Services will automatically renew for a further 12 months unless terminated by either party providing written notice to the other no less than 30 days prior to termination of the then current term.

4.2         Invoices. Payment of the Fees and any other charges for Hardware will be made by the Customer as specified in the applicable Order. All Fees and charges paid are non-refundable, except as expressly provided in this EULA. Any Fees or charges paid pursuant to an Order will not offset any fees or charges due under any other Order. If no payment terms are specified in the applicable Order, payment terms are net 30 days from date of invoice. the Company has a right to charge penalty interest on invoices that are outstanding for more than 45 days at the rate of 3% above the then current penalty interest rate specified in the Penalty Interest Rates Act 1983 (Vic).

5.             Use of the Software

5.1          Consents. The Customer is responsible for obtaining at its sole expense any rights and consents from Customer Users and other third parties necessary for the Customer to use the Software and other vendors’ products used by the Customer in the Trial Services environment and Subscription Services environment (as applicable), including: (a) consents from the owner/s and tenants at the Site and their respective employees; (b) consents necessary for Customer and the Company to collect, use and license the Customer Data as contemplated by this Agreement.

5.2         Restrictions. Customer must not and must ensure that each Customer User does not: (a) modify, correct, adapt, alter, translate, or create derivative works or improvements of the Software; (b) reverse-engineer, decompile, disassemble, copy or attempt to derive the source code or other trade secrets for the Software, in whole or in part, except to the extent that such activities are expressly permitted under applicable law; (c) distribute, license, sublicense, lease, rent, loan, or otherwise transfer the Software to any third party; (d) remove, alter, or obscure in any way the proprietary rights notices (including copyright, patent, and trademark notices and symbols) of the Company or its suppliers contained on or within any copies of the Software; (e) bypass or breach any security device or protection used for or contained in the Software; (f) use the Software in or in connection with the design, construction, maintenance, operation, or use of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Software could lead to personal injury or severe physical or property damage; (g) use the Software for the purpose of creating a product or service competitive with the Software; (h) use the Software with any unsupported software or hardware (as described in the Documentation); (i) use the Software for any time-sharing, outsourcing, service bureau, hosting, application service provider or like purposes; (j) disclose the Feedback or results of any benchmark tests on the Software without the Company’s prior written consent; or (k) use the Software other than as described in the Documentation or for any unlawful purpose.

5.3         Unauthorised Use. The Customer further agrees to use reasonable efforts to prevent any unauthorised access to, or use of, the Software and, in the event of any suspected unauthorised access or use, the Customer agrees to promptly notify the Company and provide reasonable cooperation in the mitigation and resolution of the matter.  During the Subscription Term, the Company may audit or monitor the use of the Software under this EULA to determine compliance with this EULA.

5.4         Suspension – Trial Services. Without limiting any other right of the Company under this Agreement, the Company may immediately suspend the Customer's account and access to the Trial Services if the Customer is in breach of any provision of this Agreement.

5.5         Suspension – Subscription Services. the Company may immediately suspend Customer's account and access to the Subscription Services if (i) Customer fails to make payment due within 10 business days after the Company has provided Customer with written notice of such failure; or (ii) Customer breaches clause 5.2 (Restrictions) or clause 9 (Confidentiality). Any suspension by the Company of the Subscription Services under this clause 5.5 will not relieve the Customer of its payment obligations under this EULA. The Company will promptly lift the suspension upon the Customer’s payment or remedy of the triggering violation, as applicable.

6.             Intellectual Property Rights

6.1          Software.  The Company owns and retains all right, title, and interest, including all Intellectual Property Rights, in and to the Software, including any improvements, modifications, enhancements, design-contributions, and derivative works, and any knowledge or processes related to it. Except for the rights expressly granted in this EULA, the Customer will acquire no other rights, express or implied, in or to the Software, and all rights not expressly provided to the Customer in this EULA are reserved by the Company.

6.2         Customer Data.  Customer Data used in connection with the Trial Services or Subscription Services (as applicable) is and will remain, as between the Customer and the Company, owned by the Customer. The Customer hereby grants the Company a royalty-free, fully paid, sub-licensable, transferable, non-exclusive, irrevocable, perpetual, worldwide right and licence to use, copy, modify and exploit the Customer Data: (a) to provide the Software, Trial Services and Subscription Services (as applicable); and (b) for the Company’s internal business purposes including the further development of the Software or other products.  The Customer acknowledges agrees that the Company may delete all Customer Data stored on the Software 90 days after termination of the Trial Services or Subscription Services under this EULA.  The Customer may request the Company to extract or archive the Customer Data (Data Retention Services) provided that (a) the Customer provides written notice to the Company within 60 days of termination of the Trial or Subscription Services that it will require Data Retention Services; and (b) the parties agree in writing the commercial terms, including payment of fees to the Company for the Data Retention Services.

7.              Intellectual Property Rights Indemnification

7.1          Indemnity for third party Claim. The Company will defend the Customer against any claim brought against the Customer by a third party alleging that the Software, when used as authorized under this Agreement, infringes any third-party patent, copyright or trademark, or misappropriates any third-party trade secret (IP Claim), and the Company will indemnify the Customer and hold the Customer harmless against any damages and costs finally awarded on the IP Claim by a court of competent jurisdiction or agreed to via settlement executed by the Company (including reasonable legal fees), provided that the Company has received from the Customer: (a) prompt written notice of the IP Claim (but in any event notice in sufficient time for the Company to respond without prejudice); (b) reasonable assistance in the defence and investigation of the IP Claim, including providing the Company a copy of the IP Claim, all relevant evidence in the Customer’s possession, custody, or control, and cooperation with evidentiary discovery, litigation, and trial, including making witnesses within the Customer’s employ or control available for evidence; and (c) the exclusive right to control and direct the investigation, defence, and settlement (if applicable) of the IP Claim.

7.2          Actions to mitigate IP Claims. If the Customer’s use of the Software is (or in the Customer’s opinion is likely to be) prevented, whether by court order or by settlement, or if the Company determines such actions are reasonably necessary to avoid material liability, the Company may, at its option and in its discretion: (i) procure the right for the Customer’s continued use of the Software in accordance with this Agreement; (ii) modify the Software to be non-infringing, or substitute a substantially functionally similar product; or (iii) terminate the Customer’s right to continue using the Software and refund any prepaid amounts for the terminated portion of the Subscription Term.

7.3          Limitations. The Company’s indemnification obligations above do not apply: (a) if the alleged infringement is caused by a modification to the Software by any party other than the Company; (b) if the alleged infringement is caused by the use of the Software in combination with any product, software, service or equipment which is not supplied by the Company, or approved for use by the Company in connection with the JourneyHub solution; (c) to unauthorized use of the Software; (d) to any IP Claim arising as a result of (i) the Customer Data or circumstances covered by the Customer’s indemnification obligations in clause 11.5 or (ii) any Third Party Software; (iii) if the Customer settles or make any admission with respect to an IP Claim without the Company’s prior written consent; or (iiii) to any claim made by the Customer or its related bodies corporate, affiliates, assigns and licensors.

7.4          Sole Remedy. This clause 7 states the Company’s sole liability and the Customer’s exclusive remedy for any infringement of Intellectual Property Rights in connection with the Software or other items or services the Company provides under this Agreement.

8.             Term and Termination

8.1          Term. Unless otherwise terminated in accordance with this clause, this EULA will remain in effect until the earlier of: (i) expiry of the Trial Term; or (ii) expiry of the Subscription Term.

8.2         Trial Services automatically convert to full Subscription Services.  The Customer acknowledges and agrees that the Subscription Services set out in the Order will AUTOMATICALLY commence immediately following expiry of the Trial Term unless: (i) the Customer has terminated the Trial Services in accordance with clause 8.5; or (ii) the Customer has given the Company written notice at least 7 days before expiry of the Trial Term that it does not wish to take up the Subscription Services.

8.3         Termination for cause. Each party may terminate this EULA if the other party (a) commits a material breach of this EULA and does not remedy the breach within 14 days’ of written notice; (b) breaches any term of this EULA which cannot be remedied (including a material breach of clause 5.2 (Restrictions), clause 7 (Intellectual Property Rights) or clause 9 (Confidentiality); or (c) becomes subject to an event of insolvency (including having an administrator, receiver or liquidator appointed or making an assignment for the benefit of creditors, or being unable to pay its debts as they fall due).

8.4         Termination for convenience.  Either party may terminate this EULA at any time during the Trial Term by giving 14 days’ notice. The Customer may terminate this EULA at any time for any reason during the Subscription Term by giving 60 days’ notice but, upon any such termination, (a) the Customer will not be entitled to a refund of any pre-paid Fees and (b) if the Customer has not already paid all applicable Fees for the then current Subscription Term, any such Fees that are outstanding will become immediately due and payable.

8.5         Effect of termination. Upon the expiration or termination of this EULA or any associated Order (a) all Trial Services and Subscription Services (as applicable) and rights granted will automatically terminate and the Customer will discontinue all use of the Software and will return to the Company any materials provided by the Company to the Customer; (b) the Company may delete all Customer Data 90 days’ after termination; (c) any liabilities of either party that have accrued before the termination date will survive; and (d) clauses 1, 2.4, 2.5, 5.2, 6, 7, this clause 8.5 and clauses 9 to 12 (inclusive) will survive any termination or expiration of this EULA or any Order. If the Company terminates an Order due to the Customer's uncured material breach, all Fees specified in the terminated Order will become immediately due and payable. If the Customer terminates an Order due to the Company’s uncured material breach, the Customer will be entitled to a pro-rata refund for prepaid Fees for the Subscription Services not performed as of the date of termination.

9.             Confidentiality

9.1          Definition. Confidential Information means any information disclosed by one party (Discloser) to the other (Recipient), directly or indirectly, orally or in writing, which is designated as “confidential” or could reasonably be inferred by Recipient to be confidential from the circumstances in which the information is disclosed and includes, without limitation, personal information as defined in the Privacy Act 1988. For the purposes of this EULA, the Software, and the results of any performance, functional or other evaluation of the Software, including the Feedback, will be deemed to be the Confidential Information of the Company; and Customer Data will be Confidential Information of the Customer.

9.2         Exceptions. The confidentiality obligations in this clause 9 will not apply with respect to any of the Discloser's Confidential information which Recipient can demonstrate: (a) was in the public domain at the time it was disclosed to Recipient or has entered the public domain through no act or omission of Recipient; (b) was known to Recipient, without restriction, at the time of disclosure as shown by the files of Recipient in existence at the time of disclosure; (c) was disclosed by Recipient with the prior written approval of Discloser; (d) was independently developed by Recipient without any access to, use of or reliance on Discloser's Confidential Information; or (e) became known to Recipient, without restriction, from a source other than Discloser without breach of this EULA by Recipient and otherwise not in violation of Discloser's rights.

9.3         Restrictions on Use and Disclosure. Recipient agrees not to use Discloser's Confidential Information or disclose, distribute or disseminate Discloser's Confidential Information except in furtherance of the performance of its obligations or enforcement of its rights under this EULA (including the licences in clause 2.1 and 2.2) or as otherwise expressly agreed by Discloser in writing. Recipient agrees to restrict access of Confidential Information to its employees or contractors who need to know such Confidential Information for performing their duties as contemplated under this EULA and have agreed in writing to be bound by confidentiality obligations no less protective than that contained in this EULA. Recipient will exercise the same degree of care to prevent unauthorized use or disclosure of Discloser's Confidential Information to others as it takes to preserve and safeguard its own information of like importance, but in no event less than reasonable care.

9.4         Compelled Disclosure. If Recipient is compelled by a court or other competent authority or applicable law to disclose Confidential Information of Discloser, it will, to the extent permitted by law, give Discloser prompt written notice and will provide Discloser with reasonable cooperation at Discloser's expense so that Discloser may take steps to oppose such disclosure or obtain a restraining order. Recipient will not be in breach of its obligations if it makes any legally compelled disclosure provided that Recipient meets the foregoing notice and cooperation requirements.

9.5         Injunctive Relief. The Recipient acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by Discloser, Recipient will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.

9.6         Return of Confidential Information. As between the parties, Confidential Information will remain the property of Discloser.  If this EULA terminates and the parties have not entered another agreement for ongoing usage of the Software, then within 30 days after termination, Recipient must promptly return all materials containing Confidential Information to Discloser (noting that the Company may retain aggregated and anonymised data sets based on Customer Data, under clause 6.2).   

10.           Warranties

10.1        Performance Warranty for Subscription Services.   The Company warrants, for the Customer’s benefit only, that: (a) the Company will use commercially reasonable efforts to prevent introduction of viruses, Trojan horses or similar harmful materials into the Software in connection with the Subscription Services (but the Company is not responsible for harmful materials submitted by the Customer or Customer Users); and (b) the Software, when used according to this EULA and the Documentation, will perform materially according to the Documentation (collectively, the Performance Warranty).

10.2        Warranty Remedy. During the Subscription Term, the Company will use commercially reasonable efforts, at no charge to you, to correct reported non-conformities with the Performance Warranty within a reasonable time (based on the severity of the non-conformity). If the Company determines corrections to be impracticable, either party may terminate the applicable Subscription Term. In this case, the Customer will receive a refund of any pre-paid Fees for use of the Software for the terminated portion of the applicable Subscription Term. The Performance Warranty will not apply: (a) during the Trial Term; (b) unless the Customer makes a claim within thirty (30) days of the date on which the Customer first noticed the non-conformity, or (c) if the non-conformity was caused by misuse, unauthorized modifications or third-party products, software, services or equipment. The Company’s sole liability, and the Customer’s sole and exclusive remedy, for any breach of the Performance Warranty is as set out in this clause 10.2.

10.3       Customer’s warranties:  The customer warrants that it will comply with all Laws regarding the collection and use of Customer Data including, without limitation, complying with any data collection notifications, consents and security measures required under Privacy Laws.

10.4       No other warranties.  Except as expressly provided in clauses 7 and 10.1, or an Order, the Customer expressly understands and agrees that all use of the Software is at Customer's sole risk and that the Software, Trial Services and Subscription Services are provided “as is” and “as available.”  To the maximum extent permitted by law, the Company makes no express warranties and disclaims implied warranties regarding the Software, Trial Services or the Subscription Services (or the devices used in the operation of the Software).  The Company does not represent or warrant to the Customer that: (a) the Customer’s use of the Software, Trial Services or Subscription Services will meet Customer’s requirements, or (b) the Customer’s use of the Software, Trial Services or Subscription Services will be uninterrupted, timely, secure or free from error.  Nothing in this EULA will exclude or limit the Company's warranty or liability for losses which may not be lawfully excluded or limited.

11.            Liability

11.1           Exclusion of Indirect Damages.  To the fullest extent allowed by law, each party excludes all liability for any loss of product, loss of data, loss of revenue, loss of profit, loss of or damage to reputation, loss of anticipated savings or benefits, or any indirect, special or punitive loss, damage, cost or expense or other claims for consequential compensation, incurred by or awarded against the other party arising directly or indirectly under or in connection with this Agreement or the performance or non-performance of this Agreement and whether arising under any indemnity, statute, in tort (for negligence or otherwise), or on any other basis in law or equity, except for: (a) interest due by any party for late payments; (b) personal injury or tangible property damage caused by negligence; or (c) losses caused by fraud or fraudulent misrepresentation. 

11.2          Liability Cap. Subject to clause 11.3, the maximum aggregate liability of the Company arising directly or indirectly under or in connection with this Agreement or the performance or non-performance of this Agreement and whether arising under any indemnity, statute, in tort (for negligence or otherwise), or on any other basis in law or equity, will not exceed: (a) where the liability arises out of or relates to the Trial Services, $100; and (b) where the liability arises out of or relates to the Subscription Services, the Fees paid by the Customer under the applicable Order in the twelve (12) month period immediately preceding the event giving rise to the liability.

11.3         Unlimited liability.  The liability cap in clause 11.2(b) does not apply to: (a) the Company’s indemnification obligations under clause 7 (Intellectual Property Rights Indemnification); (b) any liability for personal injury or tangible property damage caused by the Company’s negligence; or (c) any liability caused by the Company’s fraud or fraudulent misrepresentation.

11.4         Contribution.  Each party’s liability under this EULA shall be reduced proportionately to the extent that an act or omission of the other party, its related bodies corporate and affiliates and their employees, officers, agents or representatives causes or contributes to, directly or indirectly, the loss or damage for which the first party is liable.

11.5         Customer Indemnity.  The Customer must indemnify and pay to the Company on demand an amount equal to all damages, losses, costs, expenses and charges suffered or incurred by the Company, its related bodies corporate and affiliates and their employees, officers, agents and representatives arising out of or in connection with any claim by a Customer User or third party relating to: (a) use of the Software, Trial Services or Subscription Services by the Customer or a Customer User; or (b) the nature or content of Customer Data, or the use by the Company of Customer Data as authorised by the Customer under this Agreement.

12.               General

12.1           Governing Law.  This EULA and any dispute or claim (including non-contractual disputes of claims) arising out of or in connection with it or its subject matter or formation will be governed by and construed in accordance with the laws of Victoria. Each party irrevocably submits to the exclusive jurisdiction of the courts located within Victoria to resolve any dispute or claim that arises out of or in connection with this EULA (including non-contractual disputes of claims).

12.2        GST and other Taxes. Fees under this Agreement exclude any goods and services taxes (GST) or other taxes or duties payable in respect of the Subscription Services. To the extent that any such taxes or duties are payable by the Company, the Customer must pay to the Company the amount of such taxes or duties in addition to any Fees.  The Company will give the Customer a tax invoice that complies with the Australian GST law.

12.3        Assignment. The Customer may only assign any of its rights or obligations under this EULA with the Company’s prior written consent (not to be unreasonably withheld). The Company may assign any or all of its rights and obligations under this EULA by giving the Customer notice, but not requiring the Customer’s consent, including to a related body corporate, or in connection with the sale of its business relating to the Software.

12.4       Force Majeure. Except for the obligation to make payments, non-performance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, pandemic, earthquakes, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than one month, either party may terminate this EULA by giving 14 days’ notice but, upon any such termination, the Customer will not be entitled to a refund of anypre-paid Fees.

12.5       Entire Agreement. This Agreement and, in respect of the Hardware the terms referred to in clause 2.4, constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.  Each party acknowledges that in entering into this Agreement it does not rely on any statement, representation or warranty that is not set out in this Agreement or, in respect of the Hardware the terms referred to in clause 2.4. This EULA (and applicable Orders) will prevail over any additional or different terms of any correspondence, order, confirmation, invoice or similar document, even if accepted in writing by both parties.  If there is any conflict between the terms of this EULA and any Order, the Order terms shall prevail. 

12.6       Construction. In interpreting this Agreement, no presumption shall be made against the party that drafted the term.  The singular includes the plural and vice versa.  Words like including, for example, such as or similar expressions are to be interpreted as meaning including, without limitation.  Headings are for convenience only and do not affect the interpretation of this Agreement.  If a clause or part of a clause of this Agreement can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way.  If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from this document, but the rest of this document is not affected.

12.7       Waiver. The failure of a party to enforce any right or provision in this EULA will not constitute a waiver of such right or provision unless acknowledged and agreed to by the party in writing.

12.8      Independent Contractors.  The parties are independent contractors, not employees, agents, partners or representatives of each other. Each party may not create or assume an obligation or liability on behalf of the other party. 

12.9       Notices. The Company may give general notices for Trial Services applicable to all customers by means of a notice on the Company’s web portal, or via the Software.  Specific notices applicable to users of the Trial Services, technical support, system security and other account notices will be given by electronic mail to Customer's e-mail address specified in an Order.  All legal or dispute-related notices will be sent by mail or express delivery: if to the Company, attention the Managing Director, at Level 5, 5 Queens Rd, Melbourne, Victoria, 3004, Australia; and if to Customer, to Customer's authorised representative and address specified in an Order or such other addresses as either party may designate in writing from time to time.

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