SmiKar Software End User License Agreement END USER LICENSE AGREEMENT 1 AGREEMENT This End User License Agreement is between SmiKar Software Pty Ltd and: (a) if there has been no charge for the license (an Evaluation License), the company or other entity that installed the Software for the purpose of the evaluation; or (b) if there has been a charge for the license (a Production License), the company or other entity that applied for the Production Licence 2 DEFINITIONS Affiliate means an entity owned by, controlling, controlled by, or under common control with, directly or indirectly, an entity. For this purpose, one entity “controls” another entity if it has the power to direct the management and policies of the other entity (for example, through the ownership of voting securities or other equity interest, representation on its board of directors or other governing body, or by contract). Agreement means the terms and conditions in this End User License Agreement and the Support Policies, and, if this is a Production License any details in the Contract Details, as may be amended by a Variation. Authorised Platform means servers and workstations that are owned, leased or controlled by You or Your Affiliates on which the Software is designed to be used. Confidential Information means any non-trivial non-public information however recorded, preserved, disclosed or communicated (whether directly, indirectly, orally or by writing), disclosed by either party or its Representatives to the other party or its Representatives in connection with this Agreement that is or, ought to have been, understood by the Parties, using reasonable business judgment, to be confidential. The Software and related documentation, License Keys and this Agreement, including the terms, pricing and Fees payable, are agreed to be the Confidential Information of SmiKar Software. Contract Details means the details of any transaction for a Production License that relate to the Software license, including the maximum number of Users (or other license metric that is applicable to the particular Software program), the Software Upgrade Assurance service and applicable Fees and Taxes, that are advised to You and/or are selected, or entered, by You on the Website prior to You placing Your order for the Production Licence, or to which You have otherwise agreed in writing with SmiKar Software. Discloser means the party that makes a disclosure of Confidential Information. Effective Date means: (a) for an Evaluation License, the first date of installation of the Software on any of Your Authorised Platforms; or (b) for a Production License, the date that the person clicked “I Agree” during the installation process. Evaluation License means the right to use the Software in accordance with clause 4.1. Fees means the amount payable for the relevant Software license, the Software Upgrade Assurance service or other items acquired under the Agreement, as applicable, exclusive of Taxes. Intellectual Property Rights means copyright, moral rights, trade mark, design rights, service marks, patent, semiconductor or circuit layout right, trade secrets, know-how, database rights or other rights in the nature of intellectual property rights (whether registered or unregistered), or any right to registration of such rights, existing anywhere in the world, or protected by statute from time to time, whether created before, on or after the Effective Date. License Key means any form of license file, lock, password or other mechanism that may be used to control access to, or manage use of, the Software. SmiKar Software Marks means all trademarks, service marks, logos or other words or symbols identifying the Software, Software Upgrade Assurance service, SmiKar Software Customer Care service or SmiKar Software’s business (whether owned by SmiKar Software or any SmiKar Software Affiliate), and all trademarks, service marks, logos or other words or symbols identifying any third party software that is licensed by the third party to SmiKar Software and integrated in the Software. Software Upgrade Assurance means the services described in clause 5. Production License means the right to use the Software in accordance with clause 4.2. Recipient means the party that receives a disclosure of Confidential Information. Representatives means the employees, agents, contractors of a party, or those of any Affiliate, and the professional representatives of a party providing advice in relation to this Agreement, including the lawyers, bankers, auditors, accountants and insurers of a party. Software means the object code version of SmiKar Software’s software program made available to You, and any Updates and Upgrades that may be made available to You by SmiKar Software in its discretion, under this Agreement. The term Software does not include any beta, pre-release or other special release programs. Support Polices means SmiKar Software’s document that describes the policies, processes and scope of support services for the Software. The Support Policies may be updated by SmiKar Software in its discretion from time to time. Taxes includes goods and services taxes or other sales taxes, duties, withholding taxes, levies, imposts or other charges or duties levied by any federal, state or local government which arise out of or in connection with the Software, Software Upgrade Assurance service or this Agreement, and any interest, penalties or liabilities incurred on such amounts, but excludes taxes based on the net income of SmiKar Software. Update means any bug fixes, patches or workarounds for the Software that have been produced primarily to overcome defects in the Software without significantly altering the functionality of the Software. Upgrade means a version of the Software that has been produced primarily to extend, alter or improve the Software by providing additional functionality or performance enhancements (whether or not defects are also corrected). Upgrades do not include any software that is marketed by SmiKar Software as a different product. SmiKar Software shall determine in its discretion whether any software is an Upgrade or a different product. User means an identifier (individual’s name or generic term such as “purchasing officer”) that is listed as a user in the Software’s database. Any User that is defined by a generic term may only be used by a single individual. All Users from You and/or Your Affiliates who have identifiers listed as users in the Software’s database are included in aggregate in the total number of Users. Variation means any addition, deletion or substitution to any part of this Agreement that is made in accordance with this Agreement. You (and Your) refer to the other party to this Agreement, being the entity that is the licensee of the Software. Website means SmiKar Software’s website from which You can acquire the Software, Software Upgrade Assurance service, additional Software programs, add more Users or other license usage or extended Your Software Upgrade Assurance service. 3 AGREEMENT AND LICENSE 3.1 In the case of an Evaluation License, the person that installs the Software and clicks “I Agree” during the installation process warrants to SmiKar Software that he/she has authority to enter into this Agreement on behalf the entity that is his/her employer. 3.2 In the case of a Production License, the person that clicked “I Agree” during the installation process warrants to SmiKar Software that he/she has authority to enter into this Agreement on behalf the entity that was entered into the Company Details section during the purchase process. 3.3 By using the Software You accept this Agreement as from the Effective Date, and acknowledge that You are bound by the terms and conditions of the Agreement. 3.4 SmiKar Software may send a “proof of purchase” confirmation email or other document (Order Confirmation) after You acquire a Production License, summarising the Contract Details. If You do not notify SmiKar Software in writing of any discrepancy in the Contract Details as set out in the Order Confirmation within 48 hours of receiving it, then you accept the Contract Details as set out in the Order Confirmation. Evaluation 3.5 If You requested a free of charge Evaluation License for the Software (via the Website or other means) then SmiKar Software will make the Software available for You to download from the Website, subject to Your acceptance of this Agreement. If You accept this Agreement then You acquire an Evaluation License, from the Effective Date until the license is terminated in accordance with clause 3.7. There is no Fee payable for an Evaluation License. 3.6 SmiKar Software does not provide Software Upgrade Assurance services for Evaluation Licenses, but may, in its discretion, provide assistance, advice and error correction services to support Your evaluation of the Software. 3.7 An Evaluation License: (a) terminates automatically after 60 days from the Effective Date, unless extended by agreement with SmiKar Software; (b) will be terminated if the Agreement terminates in accordance with clause 12. Upgrading to a Production License 3.8 You may upgrade an Evaluation License to a Production License by agreeing to and paying the relevant Fees and Taxes. You may also order Software Upgrade Assurance services at the same time. The Production License and any Software Upgrade Assurance service will be provided on the terms and conditions of this Agreement. In the case of a Production License, SmiKar Software will provide You with a License Key to enable You to use the Software. Production License 3.9 Where you acquire a Production License by completing the purchase process, then You acquire a license for the Software in accordance with clause 4.2 and the right to receive and install any Updates for that Software that may be issued by SmiKar Software from time to time. You must install Updates promptly, especially Updates that have been made available for security issues. There are no additional Fees for this right to receive Updates. Software Upgrade Assurance 3.10 Where You ordered Software Upgrade Assurance services in the Contract Details, upon acceptance of your order SmiKar Software will provide the Software Upgrade Assurance services for 12 months from the Effective Date in accordance with clause 5. Additional Licenses, Usage or Software Upgrade Assurance. 3.11 If You wish to add more Software programs, add more Users or other license usage or extended Your Software Upgrade Assurance service and such items are available from SmiKar Software at the time, You may order those items by completing and agreeing the relevant Contract Details with SmiKar Software and agreeing to pay SmiKar Software’s then current Fees and Taxes for such items. Any such items will be provided on the terms and conditions of this Agreement. 3.12 If You do not extend Your Software Upgrade Assurance service so that Software Upgrade Assurance service is provide continuously, and subsequently wish to re-instate Software Upgrade Assurance service, then You must pay SmiKar Software’s then current support re-instatement fee in addition to the then current Fees for the Software Upgrade Assurance service prior to the Software Upgrade Assurance service being re-instated. Variations 3.13 Subject to clauses 3.8 and 3.11, this Agreement, or any part of it, may be varied by the parties agreeing to the Variation in writing (and the Variation will be binding when both parties have signed the Variation). 4 LICENSES Evaluation License 4.1 From the Effective Date until the license is terminated in accordance with this Agreement, SmiKar Software grants You a non-exclusive, non-transferable, limited use license solely to install and run the Software on one or more computers that are Authorised Platforms for You and your Affiliates to evaluate the Software to determine whether to acquire a Production License. Under this Evaluation License You and Your Affiliates may use the Software for testing and evaluation in a production environment prior to the termination of the Evaluation License. Production License 4.2 Subject to SmiKar Software’s receipt of the applicable Fees and related Taxes in accordance with the Contract Details, SmiKar Software grants You a non-exclusive, non-transferable, indivisible, limited use license solely to install and run the Software on one or more computers that are the Authorised Platforms, for use by You or Your Affiliates from the Effective Date until the license is terminated in accordance with this Agreement, for: (a) up to the maximum number of computers or other license metric set out in the Contract Details, for Your internal business data processing/printing requirements in accordance with, and subject to any other limitation of use set out in, the Contract Details; and (b) for testing, disaster recovery and back up (hot or cold), without additional Fees. Delivery and installation 4.3 SmiKar Software will make the Software available for download from the Website. If You specifically request, SmiKar Software will ship to You a physical copy of media with the software loaded on it, at additional cost. You are responsible for copying and installing the Software on the Authorised Platforms. You must follow any instructions provided by SmiKar Software when installing the Software. All Software is deemed to be accepted by You upon successful installation on the first Authorised Platform. Prohibited Actions 4.4 Nothing in this Agreement permits You to: (a) use the Software to provide any facility management or service bureau service, or for the benefit of any third party (other than an Affiliate); (b) disclose the Software or any online or hard copy documentation related to the Software to any third party (other than an Affiliate); (c) adapt, translate, publish, communicate to the public, or create any derivative work or translation of the Software, unless expressly permitted by law; (d) sub-license, lease, rent, loan, assign, novate or otherwise transfer the Software to any third party; (e) reverse engineer, reverse compile, de-compile or disassemble the object code of the Software or any part of the Software (or other underlying data), or otherwise attempt to derive the source code of the Software, except to the extent the permitted by law; (f) use any part of the software other than as an integrated part of the overall Software program; (g) remove, alter or obscure any SmiKar Software Marks, or any proprietary or restricted use notice on the Software; (h) allow the Software to become the subject of any charge, lien, encumbrance or security interest; or (i) deal in any other manner with any or all of Your rights and obligations under this Agreement. Compliance 4.5 You acknowledge and agree that the License Key may prevent, hinder or reduce availability of features where You are using the Software in excess of the usage rights that You have agreed to pay for. 4.6 During the period of this Agreement and for 2 years thereafter, You must permit SmiKar Software, or its nominee, to inspect and have access to the Software, the usage logs in the Software and to any records kept in connection with this Agreement, for the purposes of ensuring that You (and Your Affiliates) are complying with the terms of this Agreement. If SmiKar Software requires access to Your offices (or those of Your Affiliates) in order to access the Software or the relevant records then: (a) SmiKar Software must provide reasonable advance notice to You; (b) any access must be during business hours or other times agreed by You; (c) SmiKar Software must use reasonable endeavors to minimize any disruption to Your business; and (d) if SmiKar Software uses a nominee to conduct the inspection, such nominee must not be a competitor to You and must sign a non-disclosure agreement with SmiKar Software that protects any information found during the inspection on terms that are no less protective than those terms that are included in clause 10 of this Agreement. 5 SOFTWARE UPGRADE ASSURANCE 5.1 This clause 5 applies during the period when You have acquired Software Upgrade Assurance services for a Production License. 5.2 If and when SmiKar Software makes an Update or Upgrade generally available to customers with Software Upgrade Assurance services for the Software, the Update or Upgrade will be made available to You at no additional charge. You must, at your own cost, download and install the Update or Upgrade within a reasonable period. 5.3 If You (or any of Your employees or employees of any of Your Affiliates) believe that there is a defect in the Software those employees should report it to Your internal support desk personnel, and Your internal support desk personnel should report it to SmiKar Software’s support email address 24/7. You must ensure that Your internal support desk personnel are technical, competent and trained in the use of Software. They must use reasonable efforts to resolve the issue prior to contacting SmiKar Software for assistance. 5.4 SmiKar Software will use its best efforts to provide a remedy or a workaround for any defect in the Software that is reported to its support address in a timeframe that is reasonable given the nature of the issue and the impact on Your business operations. 5.5 SmiKar Software shall have no obligation to provide Software Upgrade Assurance services: (a) in respect of any Software which has not had any Update or Upgrade installed prior to the date that SmiKar Software has notified its customers generally that is the “end of life” date for that version. SmiKar Software shall provide its customers with at least 90 days notice, including by posting notice on the Website, of an “end of life” date for that particular version; (b) to any adaptations, translations or derivative works made to the Software; or (c) for any Evaluation License. 5.6 SmiKar Software shall have no obligation to provide Software Upgrade Assurance services where faults arise from: (a) misuse, incorrect use of or damage to the Software from whatever cause (other than any act or omission by SmiKar Software), including failure or fluctuation of electrical power; (b) failure to maintain the necessary environmental conditions for use of the Software; (c) use of the Software in combination with any equipment or software other than Authorised Platforms; (d) any breach of Your obligations under this Agreement; (e) having the Software maintained by a third party; or (f) user error. 5.7 If it is necessary for SmiKar Software to attend Your (or Your Affiliates’) premises to provide Software Upgrade Assurance services, or SmiKar Software determines that the work it performed in relation to a logged issue was caused by any of the items in clause 5.6, then You must pay for such work at SmiKar Software’s then current Fees and charges as well as any expenses (and travel time) incurred by SmiKar Software in performing such work. 6 FEES AND TAXES 6.1 SmiKar Software will provide You with the ability to download the Software from our Website as an Evaluation License for use in accordance with this Agreement without charge. 6.2 Where You agree on the Contract Details to pay the Fees, charges and Taxes for any Production License, Software Upgrade Assurance, additional Software, or extended usage rights, further period of Software Upgrade Assurance or other thing acquired under this Agreement by credit card (or other online payment mechanism supported by SmiKar Software) then you must complete the relevant details and authorizations stated on the Website. SmiKar Software will provide you with a tax invoice/receipt promptly following receipt of Your payment. 6.3 Where You agree on the Contract Details to pay the Fees, charges and Taxes for any Production License, Software Upgrade Assurance, additional Software, or extended usage rights, further period of Software Upgr