SimpleDiagrams End User License Agreement


SimpleDiagrams END USER LICENSE AGREEMENT: Version 4.1
You must read this End User License Agreement before using SimpleDiagrams.
Effective Date: End User License Agreement was last updated on 01/01/2017


1. Agreement

1.1. By installing or using the McQuillen Interactive Pty. Ltd. (the “Company”) product SimpleDiagrams (the “Software”) you indicate your agreement to the terms of this End User License Agreement (the “Agreement”).

1.2. USE OF THE SOFTWARE IS SUBJECT TO YOUR ACCEPTANCE OF THE TERMS SET FORTH BELOW. IF YOU DO NOT ACCEPT THESE TERMS YOU ARE NOT AUTHORIZED TO USE THE SOFTWARE.

1.3. If you have upgraded from a previous version of the Software, you acknowledge and agree that the terms and conditions of any previous End User Licence Agreement or other license agreement continue to apply to former product feature to the extent such terms are not inconsistent with this version 4.0.

1.4. Except to the extent expressly licensed herein, all rights are reserved to Company and its suppliers.

2. Definitions

2.1. In this Agreement, the following definitions apply:

2.1.1. “Company” means McQuillen Interactive Pty Ltd ACN 600 623 069 or its assigns.

2.1.2. “Corporate entity” means any incorporated or unincorporated entity of legal personhood and, for the absence of doubt, excludes natural persons;

2.1.3. “Extended Online Libraries” means the enhanced version of the Online Libraries feature, which provides a limited amount of premium content for a monthly fee.

2.1.4. “Extended Online Libraries Subscription Fee” means the monthly license fee payable by the User if it elects to subscribe for the Extended Online Libraries Feature;

2.1.5. “Free Shapes” means shapes retrieved via the Online Libraries search function which are designated as ‘free’;

2.1.6. “Individual” means a natural person;

2.1.7. “Software Licence Fee” means the license fee which you have agreed to pay in exchange for use of the basic Software;

2.1.8. “Online Libraries” means the bonus web-based search feature, subject to cancellation at the discretion of the Company, which allows the User to search for additional Shapes for use within the Software;

2.1.9. “Premium Shapes” means shapes retrieved via the Online Libraries search function which are designated as ‘Premium’;

2.1.10. “SimpleDiagrams application” means the SimpleDiagrams software which is a prerequisite to the use of the Shapes and Shape Library.

2.1.11. “SimpleDiagrams Shape License” means the terms and conditions which apply to your use of certain Shapes pursuant to clause 8.

2.1.12. “Shapes” means the individual graphic shapes that come either packaged with the software, individually, or are made available as plugins; and

2.1.13. “Shape Library” means the group of individual Shapes distributed together as one unit for use, either for free or for a fee, with the SimpleDiagrams application and which you request use of in connection with this agreement.

2.1.14. “Shape Library Plugin” means a Shape Library packaged and distributed by the Company, either for free or for payment of a fee, and which are downloaded as a “.sdpl” file type.

2.1.15. “Software” means the software encoding the SimpleDiagrams application;

2.1.16. “Storage Media” shall mean CD-ROM, digital video disc (DVD), floppy disk, or any other storage device or media now known, or hereafter created.

2.1.17. “User” shall mean the individual, legal entity or agent entering into this Agreement or any employee or contractor of such individual, legal entity or agent that edits, manipulates or modifies the Shape(s) or are otherwise directly involved in the creative process. All Users shall only use the Shape Library(s) in accordance with the terms of this Agreement.

2.1.18. “Use” means storing, loading, installing or executing the Software;

2.1.19. “You” shall mean you, a single: (i) individual, (ii) legal entity (corporation, partnership, LLC, sole proprietorship, etc.), or (iii) agent acting on behalf of a single individual or entity.

3. Licence Grant

Grant of Licence

3.1. The Company grants you a nonexclusive, royalty free, worldwide right and license to use the executable version of the Software (License Grant).

Copying

3.2. You may make copies or adaptations of the Software and any downloaded Shapes:

3.2.1. for archival purposes; or

3.2.2. when copying or adaptation is an essential step in the authorized use of the Software,

provided that:

3.2.3. the copy is unmodified from the original distribution; and

3.2.4. the copy retains all of the original Software’s proprietary notices including all copyright notices.

Prohibited activities

3.3. You must not:

3.3.1. modify the Software or disable any licensing or control features of the Software;

3.3.2. copy any written materials accompanying the Software; or

3.3.3. rent or lease your rights to the Software or documentation’ or otherwise sublicense or transfer the Software or any portion thereof in any way.

Individual licensee

3.4. If you are an individual and this Agreement is for a single license, you may install the Software on up to three computers provided:

3.4.1. not more than one of those computers is in use simultaneously; and

3.4.2. those computers are solely for your own use.

Multi-user (site) licenses

3.5. If this Agreement is for a multi-user (site) license:

3.5.1. each license you purchase is for one user;

3.5.2. each user can install the Software on three of their own machines; and

3.5.3. you may use this software in a networked environment on computers other than the computer on which the software is installed provided that you have purchased licenses for each user that will use the software.

Exploitation of library shapes

3.6. The License does not give you the right to sell, distribute, or commercially exploit any Shape or Shape Library as a product in itself.

3.7. For the absence of doubt, you may use the library shapes as a tool in the day to day activities of your organization, including demonstration, marketing and sales activities.

Trial version

3.8. The Company may make a trial version of the Software available from time to time for which a Software License Fee is not payable.

3.9. All of the functionality of the Software may not be available to you in the “Trial” version.

3.10. You must not at any time attempt to activate by any means any feature in the “Trial” version which has been intentionally disabled by the Company.

4. Software License Fee

Payment of Software License Fee

4.1. You must pay a one-time Software License Fee to the Company in order to use the “Full” version of the current SimpleDiagrams Software, whether by new installation, upgrade of a “Trial” version of the Software, or otherwise. The amount of the Software License Fee from time to time will be subject to the number of seats which you license, and will appear in the terms and conditions of the SimpleDiagrams web site.

4.2. The Company may charge an additional fee to upgrade from a previous version of the Software to a new version of the Software.

No refunds

4.3. The Software License Fee is non-refundable.

Tax excluded

4.4. The Software License Fee does not include any sales or other tax that your jurisdiction may impose on the Software License Fee (excluding GST), for which you (and not the Company) will be responsible.

No warranties as to continued development

4.5. Notwithstanding payment of the one-time fee for the base Software, you acknowledge that the Company gives no warranties as to the continued availability of Software updates, Shape Library Plugins or the Online Libraries function of the Software.

5. SimpleDiagrams Shape Library Plugins

5.1. You may have an opportunity to download either free or paid Shape Library Plugins from the Company website.

5.2. You agree to use any such constituent Shapes of each Shape Library according to the terms indicated under the “License” tab in the “Library Shape Properties” window for the relevant Shape, or by default according to the SimpleDiagrams Shape License.

6. Online Libraries Feature

General

6.1. The Software may include an ‘Online Libraries’ feature. Online Libraries, is a bonus feature and may be suspended or cancelled by the Company from time to time any for any reason in its absolute discretion.

6.2. Online Libraries is a web-based search feature that allows the User to search for additional Shapes for download and use within the Software. The Shapes may be sourced from the Company’s own bonus libraries or from third parties.

Shape License Terms

6.3. Shapes downloaded through the Online Libraries feature may be used for limited commercial purposes and do not require attribution of the artist or copyright owner but are subject to any further specific terms and conditions which may be accessed via the “License” tab in the “Library Shape Properties” window for the relevant Shape. It is a precondition to your use of the Online Libraries feature that you agree to be bound by the license terms for the relevant Shape. Permissions

6.4. Unless you have subscribed to Extended Online Libraries, the basic Software Subscription will provide you with the following permissions:

6.4.1. One hundred (100) Online Libraries searches per month

6.4.2. Ten (10) ‘Free Shape’ downloads each month;

6.4.3. No ‘Premium Shape’ downloads each month;

6.4.4. Search and download counts will reset each month, starting with the date the first instance of the software was registered with your license key.

Subject to Cancellation at any time

6.5. Because Online Libraries is a bonus feature of the Software, the permissions above may be subject to change or cancellation at any time and there is no guarantee of continuity of the service.

Export for Backup purposes

6.6. You are permitted to export Shapes downloaded via Online Libraries in accordance with the Rules in clause 3.3 only. Unless exported for backup purposes, access to any shapes downloaded via Online Libraries will be permanently lost upon cancellation of the Online Libraries feature for any reason.

7. Extended Online Libraries Feature

General

7.1. You may elect to subscribe for ‘Extended Online Libraries’ feature in exchange for payment of a monthly Extended Online Libraries Subscription Fee. The Extended Online Libraries Subscription Fee will be advertised at point of subscription via the Company’s website and may be subject to change. Extended Online Libraries, like Online Libraries, is a bonus feature and may be suspended or cancelled by the Company in the future. Increased Permissions

7.2. The terms and conditions applicable to the Online Libraries feature (clause 5. ) also apply to an Extended Online Libraries subscription, except that the following enhanced permissions will apply:

7.2.1. One thousand (1000) Online Library searches each month;

7.2.2. One hundred (100) Free Shape downloads each month;

7.2.3. Ten (10) premium Shape downloads each month; and

7.2.4. Search and download counts are reset every billing month.

Subject to Cancellation at end of Billing Month

7.3. Because Extended Online Libraries is a bonus feature of the Software, the permissions above may be subject to change or cancellation and there is no guarantee of continuity of the service past the end of the then current billing month for which the Extended Online Libraries Subscription Fee has been paid. Export for Backup purposes

7.4. You are permitted to export Shapes downloaded via Online Libraries in accordance with the Rules in clause 3.3 only. Unless exported for backup purposes, access to any Premium Shapes downloaded via Online Libraries will be permanently lost upon cancellation of the Online Libraries or Extended Online Libraries feature for any reason.

8. SimpleDiagrams Shape Licence

Licence Coverage

8.1. This clause sets out the terms and conditions on which certain Shapes are provided for use to you within the SimpleDiagrams application. This License covers Shapes published and supplied by the Company. Such shapes will include the designation “SimpleDiagrams Shape Licence” under the “License” tab in the “Library Shape Properties” window for the relevant Shape. Shapes not covered

8.2. Shapes published and supplied by third parties will be available via the Online Libraries feature and, potentially, other future features. Those Shapes are not covered by this SimpleDiagrams Shape Licence and will instead be covered by a third party licence, details of which may be found under the “License” tab in the “Library Shape Properties” window for the relevant Shape. You agree to comply absolutely with such third party licence terms. Permitted Shape Uses

8.3. The Company grants you the following limited rights to (subject clause 8.4 below):

8.3.1. Backup, and store, the Shape as necessary on a single server for archival, tracking or asset management purposes only;

8.3.2. Use the Shape in any print or electronic media including advertising, marketing, educational, promotional, sales, entertainment and editorial use, provided such use is not intended to allow the re-distribution, re-use of the Shape or access to the Shape as a product in itself.

8.3.3. Use the Shape on product packaging or in any items for personal use or resale, including book covers, calendars, consumer merchandise (T-shirts, posters, art, etc.), provided such use is not intended to allow the re-distribution, re-use of the Shape or access to the Shape as a product in itself.

8.3.4. Modify or alter the Shape as necessary for your use, subject to the terms of clause 7.5, and provided that if such modification or alteration constitutes a derivative work you do not acquire any copyright ownership or equivalent rights in or to any of the Shapes or any other property of the Company or its partners or third party suppliers and you shall only use such derivative work in accordance with this SimpleDiagrams Shape License. If requested by the Company, you agree to execute a written assignment of any such rights, including copyrights, at no cost to the Company.

8.3.5. Use the Shape as decor in an office, lobby, public area, restaurant, or retail store.

8.3.6. Use the Shape as design elements in video, film, or television broadcasts.

8.3.7. Use the Shape in connection with your business or entity, e.g. corporate identity documents and letterhead, except as prohibited below.

8.3.8. Use the Shape for any other uses approved in writing by the Company.

Prohibited Shape Uses

8.4. You must NOT:

8.4.1. Sublicense, distribute, transfer or assign rights to the Shape;

8.4.2. Copy or reproduce the Shape, except as specifically provided for in clause 8.3 (“Permitted Shape Uses”).

8.4.3. Use the Shape, or any part of the Shape, as part of a trademark, service mark, or logo. The Company or its third party suppliers retain the full rights to the Shape, and therefore you cannot establish, or purport to establish, your own proprietary rights in the Shape.

8.4.4. Use the Shape to compete with the Company. The company is in the business of licensing images to its customers. It is the specific intent of this provision to prohibit you from using the Shape to enter, either directly or indirectly, a similar or competing business.

8.4.5. Use the Shape in any way that could be considered defamatory, pornographic, libelous, immoral, obscene or fraudulent, or illegal, either by making physical changes to it, in the juxtaposition to accompanying text or images, or otherwise.

8.4.6. Use the Shape beyond any limitations or restrictions noted on the Company’s Website.

8.4.7. Use the Shape other than in conjunction with SimpleDiagrams application.

8.4.8. Use the Shape in a manner which is otherwise not a Permitted Shape Use in clause 8.3

Attribution

8.5. This Section 8.5 applies if:

8.5.1. You distribute or publicly use the Shape or a derivative work which makes use of the Shape (“the Works”); and

8.5.2. the Shape is accompanied by a copyright notice or a statement to that effect (“Copyright Notices”).

8.5.3. You must keep intact all Copyright Notices for the Shape.

8.5.4. When you distribute or publicly use of the Works, you must provide in a reasonable manner:

  1. the name of the original author and any other party which the original author has requested be attributed;
  2. any other information specified in the Copyright Notice;
  3. if the Work is a derivative work, you must indicate the extent the manner in which the Work has been varied.

8.5.5. Notwithstanding the above, you must not assert or imply that the Company, original author, or any other party referred to in the Copyright Notice endorses or sponsors your use the Works without their separate express and prior written consent.

8.5.6. Generally, Shapes supplied with the base Software or through the Online Libraries Feature will not require attribution, but it is your responsibility to verify this in the “Library Shape Properties” for the relevant Shape.

9. GST

Definitions

9.1. In this clause 9:

9.1.1. The expressions Consideration, GST, Input Tax Credit, Recipient, Supply, Tax Invoice and Taxable Supply have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 199 (GST Act); and

9.1.2. Supplier means any party treated by the GST Act as making a supply under this agreement.

Payments inclusive of GST

9.2. All fees or other sums payable or consideration to be provided under or in accordance with this agreement are inclusive of GST unless expressly stated otherwise.

Payment of GST

9.3. If GST is imposed on any Supply made under or in accordance with this agreement, the Recipient of the Taxable Supply must pay to the Supplier an additional amount equal to the GST payable on or for the Taxable Supply, subject to the Recipient receiving a valid Tax Invoice in respect of the Supply at or before the time of payment.

Method of payment

9.4. Payment of an additional amount payable under clause 9.3 must be made at the same time and in the same way as payment for the Taxable Supply is required to be made in accordance with this agreement.

Reimbursable expenses

9.5. If this agreement requires a party (the First Party) to pay for, reimburse, set off or contribute to any expense, loss or outgoing (Reimbursable Expense) suffered or incurred by the other party (the Other Party), the amount required to be paid, reimbursed, set off or contributed by the First Party will be the sum of:

9.5.1. The amount of the Reimbursable Expense net of Input Tax Credits (if any) to which the Other Party is entitled in respect of the Reimbursable Expense (Net Amount); and

9.5.2. If the Other Party’s recovery from the First Party is a Taxable Supply, any GST payable in respect of that Supply,

such that after the Other Party meets the GST liability, it retains the Net Amount.

10. Ownership of Intellectual Property Rights

Ownership

10.1. Except as provided otherwise in this Agreement, the Company, and its third party suppliers, retain all present and future right, title and interest (including copyright in accordance with the Copyright Act 1968 (Cth)) in and to:

10.1.1. the Software (whether in binary or source form);

10.1.2. any documentation to the Software;

10.1.3. the “SimpleDiagrams” trade mark and any other trade marks in relation to the Software;

10.1.4. the Shapes;

10.1.5. the Shape Library; and

10.1.6. any other related materials in which copyright, trade mark, patent, design, trade secret, or other intellectual property rights exist anywhere in the world, whether such rights are registered, unregistered or registrable,

and your license confers neither title to nor ownership in the Software or the Shapes and is not a sale of any rights in the Software.

Free and open source components

10.2. Some parts of the Software may be licensed under a free and open source license, the terms of which are provided as an annexure to this agreement. Nothing in this agreement restricts your rights under those licenses with respect to those components to which such a license applies.

Enforcement

10.3. The Company’s third party suppliers may protect their rights in the event of any violation of this License Agreement as if such suppliers were parties to this License Agreement.

Patent

10.4. No license is given to you under any patent or patent application of Company.

11. No Disassembly, Decompilation or Decryption

No disassembly or decryption

11.1. To the extent permitted by law, you must not disassemble or decompile the Software without the Company’s prior written consent.

Company to be informed of disassembly or decompilation

11.2. Where you are permitted by law to disassemble, decompile, or otherwise revert the binary form of the Software to source code by any means, you must provide the Company with reasonably detailed information regarding any disassembly or decompilation.

Decryption prohibited

11.3. You must not decrypt the Software unless decryption is an essential step in the authorized use of the Software.

Use of source code

11.4. If you have obtained a source code version of this program, you acknowledge and agree that:

11.4.1. source code is provided exclusively as an educational service;

11.4.2. the Company provides no guarantee as to the integrity of the source code after the source code has left the Company’s control; and

11.4.3. all responsibility for all use of source code is yours alone and that Company expressly excludes any responsibility or liability for any use of source code by you.

12. No Warranties

WARRANTIES EXCLUDED

12.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY EXPRESSLY:

12.1.1. DISCLAIMS ANY WARRANTY FOR THE SOFTWARE;

12.1.2. PROVIDES THE SOFTWARE AND ANY RELATED DOCUMENTATION “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF:

12.1.3. MERCHANTABILITY;

12.1.4. FITNESS FOR A PARTICULAR PURPOSE;

12.1.5. THE WARRANTY OF NONINFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS; AND

12.1.6. DOES NOT WARRANT THAT THE SOFTWARE WILL BE ERROR FREE, COMPLETE OR CORRECT.

RISK

12.2. FOR THE ABSENCE OF DOUBT, THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE REMAINS WITH YOU.

WARRANTIES AT LAW

12.3. WHERE A WARRANTY OR GUARANTEE IS IMPLIED INTO THIS AGREEMENT BY LAW, SUCH WARRANTY OR GUARANTEE IS IMPLIED TO THE MINIMUM EXTENT NECESSARY TO GIVE EFFECT TO THAT LAW.

13. No Liability for Damages

LIMITATION OF LIABILITY

13.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER THE COMPANY NOR ITS OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS OR SUPPLIERS SHALL BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF OR RELATING TO THE USE OR INABILITY TO USE THIS SOFTWARE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

MAXIMUM LIABILITY OF COMPANY

13.2. THE COMPANY’S LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED LICENSE FEES, IF ANY, PAID BY YOU DIRECTLY TO THE COMPANY FOR USE OF THE SOFTWARE OR ANY LICENSE FEE RECEIVED BY THE COMPANY FOR THE USE OF THE SOFTWARE IF PURCHASED THROUGH AN AUTHORIZED THIRD PARTY.

14. Customer Remedies

14.1. YOUR EXCLUSIVE REMEDY (INCLUDING FOR WARRANTIES IMPLIED UNDER THE COMPETITION AND CONSUMER ACT 2010 (CTH)) SHALL BE, AT COMPANY OPTION, REPLACEMENT OF THE SOFTWARE OR REFUND OF PART OR ALL OF THE LICENSE FEE, IF ANY, PAID BY YOU TO THE COMPANY OR THE COMPANY’S AUTHORISED AGENT OR RESELLER FOR THE SOFTWARE.

15. Maintenance

15.1. THE COMPANY UNDERTAKES NO OBLIGATION TO MAINTAIN ANY PORTION OF THE SOFTWARE.

16. Indemnification

16.1. You agree to hold harmless, indemnify and defend the Company, its officers, employees, contractors, agents and suppliers against any loss (including consequential loss), damage, fine, or expense (including legal fees on an indemnity basis) arising out of or related to any act or omission of you, your officers, employees, contractors, or agents including, but not limited to:

16.1.1. breach of this agreement or any other use or misuse of the Software contrary to the Company’s proprietary rights;

16.1.2. breach of any applicable law in any relevant jurisdiction; or

16.1.3. infringement of third party intellectual property rights.

17. Term and Termination

Term

17.1. This Agreement shall continue until terminated as provided herein.

Termination for breach

17.2. The Company may terminate your license immediately without notice to you for your failure to comply with any of the terms set forth in this Agreement.

Events on termination

17.3. Upon termination, you must immediately:

17.3.1. destroy the Software, together with all copies, adaptations and merged portions thereof in any form; and

17.3.2. pay all accrued charges or fees.

18. Upgrades

Eligibility

18.1. If the Software is labelled as an upgrade, you must be properly licensed to use a product identified by the Company as being eligible for the upgrade. A Software labelled as an upgrade replaces and/or supplements the product that formed the basis for your eligibility for the upgrade.

Agreement applies to upgrades

18.2. For the absence of doubt, all upgrades to the Software from time to time are subject to the then-current terms of this Agreement and you may use the resulting upgraded product only in accordance with the terms of this Agreement.

Single product packages

18.3. If the Software is an upgrade of a component of a package of software programs that you licensed as a single product, the Software may be used and transferred only as part of that single product package and may not be separated for use on more than one computer.

19. Assignment and non-assignment

Single Licence

19.1. If you are an individual and this Agreement is for a single license, then this license is personal to you but you may assign your rights under this Agreement to a third party who agrees in writing to be bound to this Agreement prior to the assignment and provided that you transfer all copies of the Software, registration keys and/or codes, and related documentation to the third party and destroy any copies not transferred.

Multi-User Licence

19.2. If:

19.2.1. you are an individual and this Agreement is for a multiuser license; or

19.2.2. you are a corporate entity,

you may not assign your rights under this Agreement without the prior written permission of the Company.

Merger

19.3. If you are a corporate entity that merges with or is acquired by another corporate entity, then your rights under this Agreement shall be deemed to be temporarily assigned to the resulting entity of that merge or acquisition provided that you supply the Company with written notice not later than the date on which any public announcement of that merger or acquisition is made.

19.4. Upon receipt of written notice, the Company shall have thirty (30) days to either accept or reject the assignment of rights.

20. Export Requirements

20.1. You may not export or re-export the Software or any copy or adaptation in violation of any applicable laws or regulations.

21. U.S. Government Restricted Rights

21.1. The Software and any accompanying documentation have been developed entirely at private expense. They are delivered and licensed as “commercial computer software.” If this Software is acquired under the terms of a DOD or civilian agency contract, use, reproduction or disclosure of the Software by the Government is subject to the restrictions set forth in this License Agreement in accordance with 48 C.F.R. 227.7202 or 48 C.F.R. 12.212, respectively.

22. No Partnership

22.1. The Company shall not become or be deemed a partner or a joint venturer with you by reason of the provisions of this license. You are not authorized to take any action on behalf of the Company or to commit the Company in any way.

23. Governing Law and Forum

Action by you

23.1. You acknowledge and agree that in the event that you bring any legal action or claim against the Company under this Agreement or otherwise in relation to the Software:

23.1.1. you must enter into mediation with the Company prior to commencing any legal action against the Company, with such mediation to be:

23.1.2. in Melbourne, Victoria;

23.1.3. conducted by a mediator appointed by the Chairman of LEADR or the Chairman’s nominee; and

23.1.4. conducted within thirty (30) days of you giving the Company notice of the dispute,

and the costs of the mediation must be born equally by the parties; and

23.1.5. this License Agreement shall be governed and construed in accordance with the laws of the State of Victoria, Australia, and you submit to the exclusive jurisdiction and forum of the courts of in Melbourne, Victoria, and courts competent to hear appeals from those courts.

Action by Company

23.2. In the event that you breach this Agreement or indicate your intention to breach this Agreement in any manner that violates or may violate the Company’s intellectual property rights or may cause continuing or irreparable harm to the Company, the Company may seek relief in any court of competent jurisdiction and you submit to the non-exclusive jurisdiction and venue of such court as the Company may determine from time to time.

24. Entire Agreement

24.1. Unless otherwise expressly agreed in writing, this License Agreement constitutes the sole and exclusive agreement between you and Company with regard to the Software, and supersedes all prior agreements, whether oral or written, and other communications between the parties relating to the subject matter set forth herein.

25. No Waiver

25.1. The failure of either party hereto to enforce its rights with respect to a breach hereunder will not constitute a waiver of the right to enforce its rights with respect to the same or any other breach.

26. Severability

26.1. If any part of this Agreement is found to be invalid or unenforceable, that part of the Agreement is severed and the remainder of the Agreement continues in force.

27. Notices

Notices from the Company

27.1. The Company may give notice by means of:

27.1.1. a general notice on the Company website;

27.1.2. electronic mail to your email address on record with the Company; or

27.1.3. by written communication sent by first class mail or prepaid post to your address on record,

and such notice will be deemed to have been given upon the expiration of:

27.1.4. 48 hours after mailing or posting (if sent by first class mail or prepaid post);

27.1.5. 12 hours after sending (if sent by email).

Notices from you

27.2. You may give notice to Company at any time by means of letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Company’s addresses on its website, and such notice will be deemed to have been given on the day it is received by the Company or, if that day is a Saturday, Sunday or public holiday in Melbourne, Victoria, at 9.00am on the next eligible day.

Language

27.3. All notices must be in English.

28. Amendments

28.1. The Company may amend this License Agreement at any time or from time to time by notifying you as aforesaid.

28.2. Your continued use of the Software after any such notification shall constitute acceptance of any such amendment.

28.3. You acknowledge and agree that it is your responsibility to review the Agreement from time to time and accept any such changes or, if you do not accept the Agreement as amended, to immediately cease using the Software in accordance with this Agreement.

29. Contacts

29.1. If you have any questions regarding this License Agreement or if you wish to request any information from Company, please contact the firm at the email address below. All correspondence must be in English.

Email: daniel@mcquilleninteractive.com Copyright © 2009-2017McQuillen Interactive Pty. Ltd. All rights reserved.