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Terms and Conditions

END USER LICENCE AND SERVICE AGREEMENT

WARNING: THE ONLINE TRACKING APPLICATION (LICENSED SOFTWARE) AND ASSOCIATED DOCUMENTATION (TOGETHER REFERRED TO AS THE LICENSED MATERIALS) AVAILABLE ON OR THROUGH THIS SITE ARE COPYRIGHT AND SUBJECT TO THIRD PARTY INTELLECTUAL PROPERTY AND OWNERSHIP RIGHTS OF E-JAZ PTY LTD ACN 095 769 734 (THE OWNER). THEY ARE LICENSED (NOT SOLD). PERMISSION TO USE THE LICENSED MATERIALS IS CONDITIONAL UPON THE CUSTOMER, (OR THE CUSTOMER’S AGENT) AGREEING TO THE LICENCE TERMS SET OUT BELOW. DO NOT PROCEED UNTIL YOU HAVE READ AND ACCEPTED ALL THE TERMS AND WISH TO BECOME THE LICENSEE OF THE LICENSED MATERIALS (OR IF ACTING IN THE CAPACITY AS THE CUSTOMER’S AGENT, WISH FOR THE CUSTOMER TO BECOME THE LICENSEE OF THE LICENSED MATERIALS). ACCEPTANCE BY CLICKING THE “YES” BUTTON AFTER THE WORDS "I HAVE READ AND AGREE TO THE TERMS AND CONDITIONS OF USE" WILL BIND THE CUSTOMER (AND ITS OFFICERS, DIRECTORS, EMPLOYEES AND CONTRACTORS) TO THE TERMS OF THIS LICENCE. THE LICENCE WILL BE BETWEEN THE CUSTOMER AND “THE SITE OPERATOR” E-JAZ PTY LTD 095 769 734 (“THE LICENSOR”). IF YOU DO NOT WISH TO ACCEPT THESE TERMS CLICK THE “NO” BUTTON WHEREUPON ANY ONLINE PURCHASE TRANSACTION FOR THE LICENSED MATERIALS WILL CEASE AND YOU WILL NOT BE PERMITTED TO USE THE LICENSED MATERIALS.

1. REGISTRATION
1.1. The Customer agrees that the associated Registration Order Form including details as inserted by the Customer or the Customer’s Agent on the Registration Order Form shall be construed as forming part of this agreement.
1.2. The Customer acknowledges that it has registered for the Licensed Software either under:
1.2.1. A free trial through the Offering Site; or
1.2.2. A subscription through the Offering Site.


2. TRIAL LICENCE
2.1. If the Customer registered for the free trial then:
2.1.1. The Licensor grants to the Customer a non-exclusive non-transferable worldwide royalty free trial licence to use the Licensed Software for the Nominated Site for the Trial Period from the date of acceptance of this agreement and in accordance with the terms of this agreement.
2.1.2. If the Customer wishes to continue to use the Licensed Software after the Trial Expiry Date, then the terms of this agreement apply as if the Customer had originally subscribed for the Licensed Software and the Customer will pay the Subscription Fee to the Licensor before the Trial Expiry Date.
2.1.3. If the Customer notifies the Licensor that it does not wish to subscribe for the Licensed Software after the Trial Expiry Date, then this agreement will be deemed to have been terminated and clause 26 will apply.

3. SUBSCRIPTION LICENCE
3.1. In consideration of the Customer paying the Subscription Fee to the Licensor for each Subscription Period, the Licensor grants to the Customer a non-exclusive non-transferable worldwide subscription licence to use the Licensed Software on the Nominated Site in accordance with the terms of this agreement.
3.2. The licence granted under this clause commences upon the time of payment and receipt of the Subscription Fee by the Licensor and is granted for the Subscription Period and all renewals of that period subject to the terms and conditions of this agreement.

4. RENEWAL OF SUBSCRIPTION
4.1. At the end of the each Subscription Period this agreement shall automatically renew for successive Subscription Periods unless either party terminates the agreement in accordance with clause 25.
4.2. Unless this agreement is terminated in accordance with clause 4.1, the Customer will be deemed to have agreed to continue the subscription for the Licensed Software and Services for a further Subscription Period and must pay the Subscription Fee for each further period to the Licensor in accordance with the requirements and payment terms as notified by the Licensor to the Customer.

5. CUSTOMER OBLIGATIONS
5.1. The Customer agrees to:
5.1.1. use the Licensed Materials strictly in accordance with these terms;
5.1.2. not copy or permit any act which infringes the copyright or other intellectual property rights in the Licensed Materials;
5.1.3. not remove alter or modify any copyright and other notices of the Licensor or Owner on the Licensed Materials and at all times to ensure that such copyright and other notices are maintained without modification, erasure and degradation on the Licensed Materials;
5.1.4. be responsible for performing all virus or other data corruption checks on the delivered and installed Licensed Software application;
5.1.5. ensure the Customer’s officers, directors, employees and contractors who have authorised access to the Licensed Materials are made aware of and agree to these terms;
5.1.6. be liable for the acts and omissions of the Customer’s officers, directors, employees, contractors (including Installers) and users under this agreement as if they were parties to this agreement; and
5.1.7. comply with the Licensor and Owner Requirements in accordance with the reasonable time frames as notified by the Licensor or Owner.
5.2. The Licensed Software may only be used pursuant to this agreement:
5.2.1. by the Customer; and
5.2.2. in accordance with the normal operating procedures as notified in the Documentation.
5.3. The Licensed Software may not be used on equipment other than Designated Equipment save that at the sole risk of the Customer it may be used on alternative equipment if:
5.3.1. the Designated Equipment is temporarily inoperable due to malfunction, maintenance or change of installation site; or
5.3.2. the Licensor has otherwise given its consent in writing to such alternate use.

6. DOCUMENTATION
6.1. The Licensor shall provide the Customer with the Documentation.
6.2. The Customer acknowledges that the Documentation contains sufficient information for the adequate use of the Licensed Software, except to the extent the Licensor has notified the Customer of any omission or deficiency or any variation which it considers necessary for the proper use of the Licensed Software.
6.3. The Customer shall not copy or reproduce the Documentation.

7. SECURITY
7.1. The Customer shall be solely responsible for the use, supervision, management and control of the Licensed Materials.
7.2. The Customer shall ensure that the Licensed Materials are protected at all times from unauthorised access, misuse, damage, destruction or any form of unauthorised use.
7.3. The Customer shall keep such records as requested by the Licensor in relation to the use of and subscription to the Licensed Materials. The Customer shall permit the Licensor to inspect such records at any time during the Customer’s normal business hours. If the Licensor requests, the Customer shall furnish to the Licensor a copy of all or any part of such records and the Licensor shall be permitted to provide copies of those records to the Owner.

8. UPDATES AND NEW RELEASES
8.1. The Licensor is under no obligation under this Agreement to provide updates or new releases for the Licensed Software however where a new release or update (“New Release”) is provided to the Customer:
8.1.1. the Licensor will deliver the New Release at no additional charge to the Customer;
8.1.2. the Customer must:
(a) accept and install the New Release at its own cost;
(b) unless otherwise advised by the Licensor, immediately discontinue the use, supply and delivery of the former version of the Licensed Software.
8.2. Without limiting the Customer’s obligations under this clause, and notwithstanding any other provision of this agreement, the Licensor and Owner shall be under no liability to the Customer in the event of loss or damage suffered by the Customer as a result of its failure to comply with this clause, and the Customer shall indemnify the Licensor and Owner in respect of any loss or damage suffered by the Licensor or Owner as a result of the Customer’s failure to comply with the obligations under this clause.
8.3. This agreement will continue to apply in all respects to the New Release.

9. SERVICES
9.1. The Owner and Licensor will provide the respective Services to the Customer in such manner as they deem appropriate.
9.2. The Customer acknowledges that the Owner and Licensor have no obligation to provide to the Customer that part of the Services comprising user support, technical support, maintenance services, modifications, training, installation or removal services associated with the Licensed Software.
9.3. The Parties acknowledge and agree that the Services provided by the Owner and/or the Licensor:
9.3.1. may be suspended, interrupted or discontinued for a period in the event of scheduled or unscheduled system downtime for maintenance and upgrades or otherwise in the event of any failures where those failures have occurred as a result of third party dependencies and are beyond the control of the Owner and/or Licensor;
9.3.2. may be suspended or terminated at the discretion of the Owner and/or Licensor in the event of the provision of:
(a) any false or misleading information to the Owner or Licensor by the Customer or the Customer’s officers, directors, employees, contractors and users;
(b) any unauthorised access, activity, tampering or modification of the Owner’s or Licensor’s databases and websites by the Customer or the Customer’s officers, directors, employees, contractors and users; and
(c) any failure of the Customer or the Customer’s officers, directors, employees, contractors and users to comply with any of the Owner’s website or the Offering Site’ terms of use and policies;
9.4. Where the Customer requests the provision of certain services which are not within the scope of the Services provided by the Owner or Licensor, the Owner or Licensor may provide those services and charge an Additional Charge to the Customer. The Customer must pay to the Owner or Licensor, the Additional Charges at the times and in such manner as directed by the Owner or Licensor.

10. SUBSCRIPTION FEES
10.1. The Customer must pay to the Licensor the Subscription Fee for the relevant Subscription Period at the times and in such manner as directed by the Licensor.
10.2. The amount of the Subscription Fee is determined according to the Licensor’s schedule of fees and charges from time to time. The Licensor may vary its schedule of fees and charges at any time without prior notice to the Customer.
10.3. Unless otherwise agreed by the parties, the Subscription Fee will be non-refundable, regardless of whether the Customer ceases to use the Licensed Software; terminates or purports to terminate this agreement; is unable to install or have the Licensed Software installed on the Nominated Site; is dissatisfied with the Licensed Software; has/uses computer systems, software, operating systems and/or browsers that are incompatible with the Licensed Software; and/or ceases the operation, transfers, licences or in some other way disposes of the part or full ownership and/or management of the Nominated Site.

11. INSTALLATION
11.1. The Subscription Fee does not include fees for the installation of the Licensed Software on the Nominated Site.
11.2. The Customer is responsible for the installation of the Licensed Software on the Nominated Site and all matters relating thereto including the payment of any costs for such installation.
11.3. The Customer may engage the Installer to install the Licensed Software on the Nominated Site and in those circumstances, the Customer is solely responsible for any payment required by the Installer for the installation of the Licensed Software.

12. MODIFICATIONS
12.1. The parties acknowledge that the Licensed Software may be modified by the Customer and/or Installer to the reasonable extent required to make the Licensed Software compatible with the Nominated Site and/or operate in the Customer’s reasonable Nominated Site preferred layout, format and/or appearance (and within the limits of the Licensed Software specifications) provided always that the Owner or Licensor may at any time, for any reason and at the Customer’s expense, require the removal, change, or further modification of such modifications made by the Customer and/or Installer.
12.2. If the Licensed Software is so modified by the Customer:
12.2.1. any costs associated with the modifications, adaptations or alterations or the costs arising out of the investigation by the Licensor or Owner of the effects of such modifications, adaptations or alterations will be borne solely by the Customer; and
12.2.2. the Customer will fully indemnify the Owner and Licensor against all liability which may be incurred by the Owner and/or Licensor if such modifications infringe any intellectual property rights of a third person or otherwise cause the Licensor and/or Owner to suffer loss, damages or expense.
12.3. The intellectual property rights in any modifications made by the Customer or Installer to the Licensed Software shall be assigned to the Owner upon their creation without the need for further assurance provided such modifications do not infringe the intellectual property rights of any other person. The Customer agrees to procure the execution of all necessary documentation from any of its officers, directors, employees and contractors to effect the assignment under this clause.
12.4. Subject to clause 12.3, this agreement will continue to apply to the Licensed Software as modified, adapted or altered.

13. THIRD PARTY USE
13.1. The Customer must not provide the Licenced Materials or Services or any information generated from the use of or associated with the Licensed Materials to any third party, whether through a sub-domain web page, sub-licence, sale, through the Customer’s acquiescence or any other means without the express written consent of the Licensor.
13.2. Unless otherwise agreed by the Parties, an additional Subscription Fee will be payable for each sub-domain located on the Nominated Site which uses the Licensed Software. The Customer will be solely responsible for the payment of any such additional Subscription Fee.

14. OWNERSHIP
14.1. The parties acknowledge that at all times, that the Owner retains all rights, title, ownership, interest and intellectual property rights in the Licensed Materials including the processes, script, code, technology associated with the Licensed Software and subject to this agreement, any modifications of Licensed Software howsoever developed or devised.
14.2. Subject to the terms of this agreement, the Customer shall not modify, adapt, decompile, disassemble, reserve-engineer, copy, transmit, communicate, create derivative works, sub-licence, transfer, download, install or commercialize the Licensed Materials or authorize or permit any other person (either directly or indirectly) to do so.
14.3. For the avoidance of any doubt, the licence granted under this agreement authorizes the Customer to install the Licensed Software in the form provided on one website only being the Nominated Site for use only on that Nominated Site. The Customer shall not cause, allow or permit (either directly or indirectly):
14.3.1. any link to or from any part of the Nominated Site containing the Licensed Software application or functionality;
14.3.2. framing of any part of the user interface of the Nominated Site on which Licensed Software is displayed or through which Licensed Software functionality is available;
14.3.3. any bureau or application service facilities to be provided on or through the Nominated Site or any other site in relation to the Licensed Software.

15. THIRD PARTY INTELLECTUAL PROPERTY CLAIMS
15.1. In the event that proceedings are brought or threatened by a third party against the Customer alleging that the Customer’s use of the Licensed Materials constitutes an infringement of a third party’s intellectual property rights, the Licensor may at its option and at its own expense conduct the defence of such proceedings. The Customer shall provide all necessary co-operation, information and assistance to the Licensor in the conduct of the defence of such proceedings.

16. REPRESENTATIONS AND WARRANTIES
16.1. Each Party represents and warrants to each other Party as at the date of this agreement and at all times after the date of this agreement, that:
16.1.1. it has full power and authority to enter into, perform and observe its obligations under this agreement;
16.1.2. it has taken all necessary action to authorise the execution, delivery and performance of this agreement in accordance with its terms;
16.1.3. the execution, delivery and performance by it of this agreement does not and will not violate:
(a) any law, regulation, authorisation, ruling, consent, judgment, order or decree of any governmental agency;
(b) its constitution or other constituent documents; or
(c) any encumbrance, undertaking or document which is binding upon it or on any of its assets; and
16.1.4. this agreement constitutes its legal, valid and binding obligations and is enforceable in accordance with its terms subject to any necessary stamping and registration requirements and to equitable principles and laws generally affecting creditors’ rights.
16.2. In addition to the representations and warranties set out in clause 16.1, the Customer represents and warrants to the Licensor as at the date of this agreement and at all times during the term that:
16.2.1. there are no actions, claims, proceedings or investigations pending or threatened against it or by it which may materially adversely affect the performance of its obligations under this agreement;
16.2.2. the Customer’s Agent has authority to contract and bind the Customer to these terms;
16.2.3. all details provided in the Registration Order Form are true and correct.
16.3. In addition to the representations and warranties set out in clause 16.1, the Licensor warrants that to the best of its knowledge and belief:
16.3.1. it has the right to grant the licences referred to in this agreement; and
16.3.2. knows of no third party rights to the Licensed Materials except as otherwise provided in this agreement.

17. IMPLIED WARRANTIES AND EXCLUSIONS
17.1. The provisions of the Trade Practices Act 1974 (as amended) and other laws from time to time in force in Australia may imply warranties or conditions or impose obligations upon the Licensed Materials which cannot be excluded, restricted or modified. Nothing in this agreement shall be deemed to exclude or seek to exclude any such conditions warranties or obligations and this agreement must be read and construed subject to any such provisions.
17.2. Liability for breach of a warranty by the Licensor in relation to the Licensed Materials shall be limited at the election of the Licensor to:
17.2.1. the replacement of the Licensed Materials; or
17.2.2. the repair of defects associated with the Licensed Materials.
17.3. Liability for breach of a warranty by the Licensor in relation to the Services shall be limited at the election of the Licensor to:
17.3.1. the re-supply of those Services by the Licensor; or
17.3.2. the payment of the cost of having those Services supplied again.
17.4. Other than the express and implied statutory warranties by the Licensor as referred to in this agreement, all other warranties express or implied in relation to the Licensed Materials and Services are excluded.

18. WARRANTY EXCLUSIONS AND ACKNOWLEDGEMENTS
18.1. The Customer acknowledges that the Licensor and Owner makes no warranty or representation whatsoever as to:
18.1.1. the compliance of the Licensed Materials and Services with any particular industry standards or statutory, regulatory or other requirements either in Australia or overseas;
18.1.2. the profits or revenues that may result from the use of the Licensed Software;
18.1.3. the availability, operability and performance of the Licensed Software with any other software, system, browser or equipment of the Customer;
18.1.4. the accuracy, currency and completeness of the Licensed Materials;
18.1.5. the uninterrupted availability of the Services where those Services are dependant on third party services and third party service providers or are otherwise beyond the control of the Licensor and Owner;
18.1.6. that the Licensed Materials, Services and media on which they may be contained will be provided free of errors, defects or viruses.
18.2. The Customer agrees to post appropriate disclaimers and notices on the Nominated Site incorporating the information in this clause 18 or as otherwise directed by the Licensor.

19. INDEMNITIES
19.1. The Customer acknowledges that it shall be solely responsible for all loss or damage directly or indirectly incurred including loss or damage arising out of the acts or omissions of the Customer and its respective officers, directors, employees, agents and contractors and indemnifies the Licensor and Owner, their respective officers, directors and employees from all loss and damage (including consequential loss and damage) arising as a result of or in connection with:
19.1.1. any breach of this agreement by the Customer;
19.1.2. any wilful, unlawful or negligent act or omission of the Customer, its officers, directors, employees, agents, contractors and users associated with this agreement;
19.1.3. access to, installation or the use of the Licensed Materials by the Customer, its officers, directors, employees, agents, contractors and users;
19.1.4. access to, installation or the use of the Licensed Materials by any third party in relation to the supply or use of Licensed Materials through the Customer;
19.1.5. infringement of the intellectual property rights of any third party as a result of the use of the Licensed Materials by the Customer, its officers, directors, employees, agents, contractors and users;
19.1.6. the use or intended use of the Licensed Materials for any particular purpose other than as referred to in this agreement;
19.1.7. use of the Licensed Software in combination by any means and in any form with any other software, systems, browsers and equipment;
19.1.8. modification or alteration of the Licensed Materials by the Customer;
19.1.9. any transaction entered into by the Customer and its users relating to or associated with the use of the Licensed Software; and
19.1.10. any other event or circumstance referred to in clause 18.

20. CONFIDENTIALITY
20.1. Each Party (the Disclosing Party) agrees to provide their Confidential Information to the other Party (the Receiving Party) as is necessary for the performance of the obligations and duties under this agreement.
20.2. The Receiving Party shall hold in strict confidence all Confidential Information of the Disclosing Party and shall not directly or indirectly disclose all or any part of that Confidential Information in any manner whatsoever, in whole or in part to a third party except in accordance with the provisions of this agreement or in any other case with the prior written consent of the Disclosing Party.
20.3. The Receiving Party will keep any Confidential Information disclosed to it secure, in safe custody and confidential in accordance with the terms of this agreement and without limitation shall:
20.3.1. establish and maintain effective security measures to safeguard such Confidential Information from unauthorised access or use;
20.3.2. keep such Confidential Information under its control;
20.3.3. immediately notify the Disclosing Party of any suspected or actual unauthorised use, copying or disclosure of the Confidential Information of which it is aware; and
20.3.4. provide such assistance as is reasonably requested by the Disclosing Party in relation to any proceedings that the Disclosing Party may take against any person for unauthorised use, copying or disclosure of the Confidential Information.

21. CONFIDENTIALITY EXEMPTIONS
21.1. Clause 20 does not apply to Confidential Information:
21.1.1. in the public domain at the time it is provided to or obtained by the Receiving Party;
21.1.2. which after it is provided to or obtained by the Receiving Party becomes a part of the public domain other than through a breach by the Receiving Party of this agreement;
21.1.3. becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party who has represented to the Receiving Party that it is entitled to disclose such information;
21.1.4. which, subject to clause 23, the Receiving Party is required to disclose at law; or
21.1.5. which the Licensor as Receiving Party is contractually bound to disclose to the Owner.
21.2. The Receiving Party may disclose Confidential Information only to such of its directors, officers and employees and professional advisers who, having regard to the performance of specific duties associated with the performance of this agreement:
21.2.1. have a need to know (and only to the extent that each has a need to know) in order to perform their duties on behalf of the Receiving Party; and
21.2.2. have executed an agreement with the Receiving Party substantially in accordance with the confidentiality terms and conditions specified in this agreement prior to the disclosure.

22. USE OF CONFIDENTIAL INFORMATION
22.1. The Receiving Party agrees it shall use the Confidential Information solely for the purposes of and in connection with the performance of the obligations and duties under this agreement and any agreement between the Licensor and Owner.
22.2. Without limiting clause 22.1 and subject to the terms of this agreement, the Receiving Party agrees that it shall not:
22.2.1. exploit the Confidential Information of the Disclosing Party;
22.2.2. use the Confidential Information for the Receiving Party’s own business purposes without authorisation from the Disclosing Party;
22.2.3. use the Confidential Information or any part of it to the competitive disadvantage of the Disclosing Party;
22.2.4. subject to the terms of this agreement, make copies in any format of the Confidential Information without the express authorisation of the Disclosing Party;
22.2.5. allow a third party (other than the Owner where the Licensor is the Receiving Party) to utilise or have access to the Confidential Information; and
22.2.6. without limiting 22.2.1 to 22.2.5 above, make any use, directly or indirectly, of the Confidential Information in a manner inconsistent with this agreement or without the express written instructions of the Disclosing Party.

23. DISCLOSURE AT LAW
23.1. Where the Receiving Party becomes legally compelled (by oral questions, request for information or documents, subpoena, civil investigative demand or similar process) to disclose any of the Confidential Information of the Disclosing Party, the Receiving Party will provide the Disclosing Party with prompt written notice so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this agreement.
23.2. Where a protective order or other remedy is not obtained, or where the Disclosing Party waives compliance with the provisions of this Agreement, the Receiving Party will furnish only that portion of the Confidential Information which it is legally required to provide and will exercise its reasonable best efforts to obtain reliable assurance that confidential treatment will be accorded to that Confidential Information which it is legally compelled to disclose.

24. ACKNOWLEDGEMENTS
24.1. The Receiving Party acknowledges that:
24.1.1. the value of the Confidential Information is such that any award of damages or account of profits may inadequately compensate the Disclosing Party in the event of a breach of this agreement by the Receiving Party;
24.1.2. without in any way compromising the Disclosing Party’s right to seek damages or any other form of relief in the event of a breach of this agreement, the Disclosing Party may seek and obtain an ex parte interlocutory or final injunction to prohibit or restrain Receiving Party from any breach or threatened breach of this agreement.
24.2. The Receiving Party acknowledges and agrees that if any Confidential Information is used or disclosed by any director, officer, employee or professional adviser of the Receiving Party not in accordance with the terms of this agreement or pursuant to and in accordance with an agreement on similar terms required to be executed by such persons, then such use or disclosure shall be deemed to be disclosure by the Receiving Party and shall be a breach of this agreement.

25. TERMINATION
25.1. This agreement may be terminated on 30 days written notice from one Party to the other Party.
25.2. The Licensor may during the term and at its sole discretion terminate this agreement immediately if at any time:
25.2.1. The Customer breaches any clause of this agreement which is capable of remedy and where such breach is not remedied within seven (14) days of receipt by the Customer of written notice by the Licensor specifying the details of the breach and requiring it to be remedied;
25.2.2. the Customer becomes, threatens or resolves to become subject to any form of insolvency administration; or
25.2.3. the Customer ceases or threatens to cease conducting its business in the normal manner.
25.3. The expiry or termination of this agreement does not affect:
25.3.1. either Party’s rights in respect of any breach of this agreement occurring before expiry or termination; or
25.3.2. the obligations of the Parties to make a payment under this agreement which was due before expiry or termination.

26. TERMINATION CONSEQUENCES
26.1. Upon termination of this agreement the Customer must on and from the termination date:
26.1.1. immediately cease to use the Licensed Materials;
26.1.2. immediately cease to use the Confidential Information;
26.1.3. within three business days of termination, return to the Licensor all copies of the Licensed Materials and Confidential Information at the Customer’s expense and in the manner directed by the Licensor;
26.1.4. within three business days of termination, delete, remove and destroy all electronic copies of the Licensed Materials and Confidential Information (including all media on which it is contained) at the Customer’s expense in the manner directed by and to the satisfaction of the Licensor. The Customer will, where requested by the Licensor provide evidence of all action taken to comply with this provision; and
26.1.5. do all other things necessary and reasonably required by the Licensor under this agreement.
26.2. Where this agreement is terminated pursuant to clause 25.2, the Licensor may:
26.2.1. retain any moneys paid;
26.2.2. charge a reasonable sum for Services performed in respect of which Services no sum has been previously charged; and
26.2.3. be regarded as discharged from any further obligations under this Agreement.

27. DUTIES AND OTHER TAXES
27.1. The Customer shall be responsible for the payment of all taxes, duties and charges in respect of:
27.1.1. this agreement; and
27.1.2. the distribution, sale or use of the Licensed Materials either in Australia or overseas.

28. COMPLIANCE AND COSTS
28.1. The Customer shall at its own cost, comply with all applicable laws, orders, regulations and directions of any governmental authority or other regulatory body having jurisdiction over this agreement and the Licensed Materials.

29. SURVIVAL
29.1. Clauses 5.1, 8.2, 12.2, 20, 22, 25, 26 and 29 shall survive termination of this agreement.

30. ASSIGNMENT, NOVATION AND SUB-LICENSING
30.1. The Customer shall not transfer, assign or novate this agreement or any interest in this agreement and shall not grant or authorise any licenses under this agreement (other than the grant of sub-licences permitted) without the prior consent in writing of the Licensor.

31. RELATIONSHIP OF PARTIES
31.1. This Agreement does not constitute the Customer an employee, agent or partner of the Licensor for any purpose whatsoever. The Customer is not granted any right or authority to assume or to create any obligation or responsibility (express or implied) on behalf or in the name of the Licensor or to bind the Licensor in any manner or thing whatsoever.

32. AUTHORISED AGENT
32.1. If the Registration Order Form was completed by the Customer’s Agent, the Installer or a third party on behalf of the Customer, then:
32.1.1. The party who registered by completing the Registration Order Form will be deemed to be the authorized agent of the Customer and the Customer will be deemed to have provided that third party with authorisation (whether express or implied authorisation) to register on the Customer’s behalf; and
32.1.2. The Customer will be deemed to be bound by the terms of this agreement as if the Customer had registered itself and deemed to have agreed to these terms and responsible for fulfilling all of its duties under this agreement.

33. ENTIRE AGREEMENT
33.1. This agreement constitutes the entire agreement between the parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.
33.2. The Customer warrants that it has not relied on any representation made by the Licensor which has not been stated expressly in this agreement.

34. WAIVER
34.1. Any failure by the Licensor to enforce any clause of this agreement, or any forbearance, delay or indulgence granted by the Licensor to the Customer, will not be construed as a waiver of the Licensor’s rights under this agreement and will not prejudice its rights in respect of any subsequent breach of the agreement by the Customer.

35. JURISDICTION
35.1. This agreement shall be governed by and interpreted in accordance with the laws of the State of Queensland, Australia.

36. SEVERANCE
36.1. If any provision of this agreement is for any reason invalid, illegal or unenforceable, that provision must be severed from the remainder of this agreement. The remainder of this agreement remains in full force and effect unless the basic purposes of this agreement would be defeated.

37. DEFINITIONS
37.1. The terms listed below shall have the following meanings in this agreement:
“Additional Charge” means a charge in accordance with the Licensor or Owner’s respective standard rates in effect from time to time;
“Business Day” means a day other than a Saturday, Sunday or public holiday in Brisbane
“Confidential Information” means the confidential information of a Party which relates to the subject matter of this Agreement and shall include:
(a) the discussions of the parties pursuant to this agreement;
(b) the code, design, specification and content of the Licensed Software;
(c) the policies or business strategies of either Party;
(d) the financial information and records of either Party;
(e) Registration Order Form details as received by the Licensor;
(f) sales, activity and transaction reports of either Party;
(g) User data and any other website data of the either Party associated with this agreement;
(h) User identification and passwords for persons associated with the use of the Licensed Software;
(i) information which is by its nature confidential;
(j) information designated in writing as confidential by either Party from time to time during the term of this agreement;
(k) information acquired by either Party in the course of negotiations between the Parties;
(l) trade secrets of a Party;
(m) information imparted in confidence to the one Party to the other Party;
(n) any other information classifiable in equity as confidential information; and
(o) includes all forms of representation or disclosure of the information whether reduced to material form or not and all forms of storage or representation of the information referred to in sub-clauses (a) to (p) including, but not limited to, loose notes, diaries, memoranda, drawings, photographs, electronic storage and computer printouts;
“Customer” means the person named in the Registration Order Form as such;
“Customer’s Agent” means any party that is authorised (express or implied authorisation), do to any act(s) or omission(s) on behalf of the Customer;
“Designated Action” means any one or more action or transaction occurring on or through the Nominated Site that may be tracked, measured or recorded including, though not limited to, sales, transactions, registrations, subscriptions, enquiries and/or online form completion.
“Designated Equipment” means a single web-site server on which the Nominated Site is hosted;
“Documentation” means operating manuals and other materials whether in electronic or printed form or other media, including users’ manuals which are designed to assist or supplement the understanding or application of the Licensed Software;
“Installer” means the person or entity nominated by the Customer that will/has installed the Licensed Software on the Nominated Site at any time before, during or after the Subscription Period and if applicable as nominated in the Registration Order Form.
“Licensed Materials” means the Licensed Software and Documentation.
“Licensed Software” means the script and any enhancement, modification, update or new release of that code or part thereof capable of performing the tracking of Designated Actions and related activities on the Nominated Site together with any associated reports and/or information stored or presented in any format including by e-mail, online, CSV format or any other media;
“Licensor and Owner Requirements” means the respective requirements of the Licensor and Owner in relation to the undertaking and completion of online registration procedures, the application for and grant of user identifications and passwords and the compliance with administrative and other procedures and requirements notified to the Customer and associated with the use of the Licensed Software. In the event of any conflict between the respective requirements of the Licensor and Owner, the requirements of the Owner shall prevail and shall be deemed to be the only requirements notified in this respect to the Customer;
“Nominated Site” means the Customer’s website as nominated in the Registration Order Form submitted to the Licensor or as otherwise notified to the Licensor.
“Offering Site” means the website of the Licensor on which the Registration Order Form is located and the Licensed Materials are available for subscription.
“Party” means either the Licensor or the Customer or both as the context dictates;
“Registration Order Form” means the online registration form for the placing of an order to obtain a licence for the Licensed Materials and the provision of the Services.
“Services” means the respective services that may be provided by either the Licensor or Owner in relation to the Licensed Software. In respect of the services provided by the Owner, these shall include any back-end services conducted by the Owner and associated with the use of the Licensed Software by the Customer.
“Subscription Fee” means the fee payable for the use of the Licensed Materials for any relevant Subscription Period.
“Subscription Period” means a period of a certain duration as either nominated in the Registration Order Form or as otherwise applies as a standard period determined by the Licensor.
“Trial Period” means the period from commencement of the free trial to use the Licenced Software to the Trial Expiry Date.
“Trial Expiry Date” means that date that is 3 months (or such other relevant period as notified by the Licensor) after the Customer has accepted these terms to use the Licensed Software by trial.


BY COMPLETING THE REGISTRATION ORDER FORM THE CUSTOMER ACKNOWLEDGES THAT THEY HAVE READ THESE TERMS AND CONDITIONS, UNDERSTAND THEM AND AGREE TO BE BOUND BY THEM.