These terms and conditions, including the above Schedule (hereafter together referred to as the “Agreement”) set out the terms and conditions on which Staunch Technology ABN 47 653 864 852 grant a licence to the “Licensee” for the use of the Staunch Technology products and services (individually and collectively referred to as the “Service” or “Services”.
1. GRANT OF LICENCE
1.1 In consideration of the payment by Licensee of the Licence fees, Staunch Technology hereby grants Licensee a non-exclusive, non-transferable licence (the “Licence”) to use the Service solely for the internal use of the Licensee in accordance with the terms of this Agreement.
1.2 Licensee must not use the Service for third party training, commercial time-sharing, rental, service bureau use, or any other use that violates the terms of this Agreement.

2. FEES
   2.1 The licence fees payable in respect of the Service
   • Notify Staunch Technologyof any change in such factors; and

• pay any such additional fees which become due by reason of any variance in such factors, at Staunch Technology’s then current prices, regardless of whether notified by Staunch Technologythat such payment is due.

2.2 Where the Schedule states that a licence fee (a “Fee”) is payable periodically, Licensee must pay such Fee on or before each due date.
2.3 Where the Schedule specifies any pre-payment of a Fee, Licensee agrees to make such prepayments and agrees that it is not entitled to any return for any unused portion of the Fee regardless of why or how the licence is terminated.
2.4 Where the Schedule specified that Licensee is required to pay a Fee for a minimum period, Licensee agrees that it will pay the Fee for that minimum period irrespective of whether it continues to use the Service.
2.5 Where a Fee payable in respect of the Service is dependent on the number of users, number of workers, the amount or type of use made of the Service, performance or other characteristics of the device on which the Service is installed or any other factor, Licensee must promptly:
2.6 Licensee is not entitled to any refund where the application of the factors referred to in clause 2.5 would result in a lower fee than that currently being paid by the Licensee.
2.7 Staunch Technology may increase the Fee at any time by not less than 30 days’ notice to Licensee. Any such increase will apply from the next due payment of the relevant Fee after expiry of the 30-day notice period.

3 COMPLIANCE AUDITING & CONFIDENTIALITY
3.1 Staunch Technology may without notice but acting reasonably and subject to the Licensee’s security requirements, but during normal business hours, audit Licensee’s compliance with the terms and conditions of this Licence (including without limitation, the payment of all applicable fees).

3.2 Licensee agrees to provide Staunch Technology such access and assistance as is reasonable necessary to conduct such audit and to pay all Staunch Technology’s reasonable expenses and all other amounts due to Staunch Technology should Licensee be found to be in breach of these terms and conditions.

3.3 Staunch Technology undertakes that it will not, (except as set out in clause 5.4) disclose to any person any information of or relating to the Licensee that Staunch Technology has accessed during the conduct of an audit pursuant to clause 5.1.

3.4 Nothing in clause 5.3 prohibits disclosure of information which:
i. is in the public domain;
ii. after disclosure to Staunch Technology during the audit pursuant to clause 5.1, becomes part of the public domain otherwise than as a result of a wrongful act of Staunch Technology;

iii. is received from a third party provided that it was not acquired directly or indirectly by that third party from Staunch Technology; or

6. is required to be disclosed by law or by government. 6.1 Staunch Technologyretains all title to, and full ownership of, the Service.

4 OWNERSHIP OF THE SERVICE
4.1 Licensee agrees not to permit the use of the Service by any unauthorised persons.
4.2 Licensee must not disassemble, reverse compile or reverse engineer the Service or take any action in order to derive any source code equivalent of the Service.
4.3 Licensee must not copy any parts of the Service, except for the purpose of making a reasonable number of internal back-up or archival copies only.
4.4 Licensee must not modify the Service without the prior express written approval of Staunch Technology.

4.5 Licensee must not allow or assist any person to do or attempt to do any act prohibited under this clause or any other clause of this Agreement.
4.6 In the event of uncertainty, in relation to the obligations and conditions imposed on the Licensee under this clause, the Licensee shall in all such cases seek the clarification of STAUNCH TECHNOLOGY.

5 LIMITED WARRANTY
5.1 STAUNCH TECHNOLOGY warrants that the Service will perform in substantial accordance with its published specifications.
5.2 STAUNCH TECHNOLOGY does not warrant that the Service:
5.3 To the maximum extent permitted by all applicable laws STAUNCH TECHNOLOGY disclaims any other warranties express or implied in relation to the Service or the Support Services, including but not limited to any implied warranties of merchantability or fitness for a particular purpose.
i. will be uninterrupted or error free in operation;
ii. will contain no defects;
iii. will meet the Licensee’s requirements; or
iv. will be compatible, or operate in any combination with, Licensee’s equipment and other Service programs which may be selected for use by the Licensee.

6 INDEMNIFICATION FOR INFRINGEMENT
6.1 STAUNCH TECHNOLOGY represents that, to the best of its knowledge and belief, the Service will not infringe any intellectual property right of any third party. STAUNCH TECHNOLOGY will defend or settle, at its own expense, any claim made by a third party against Licensee that the use of the Service by Licensee infringes that party’s intellectual property rights (an “IP Claim”) provided:
i. the Service is used within the scope of this Agreement;
ii. Licensee has promptly notified STAUNCH TECHNOLOGY in writing after receiving notice of any such claim of infringement;
iii. Licensee grants to STAUNCH TECHNOLOGY sole control of the defence of any action and all negotiations for its settlement; and
iv. Licensee provides reasonable assistance to STAUNCH TECHNOLOGY in “STAUNCH TECHNOLOGY’s” efforts to defend or settle any such claims.
6.2 STAUNCH TECHNOLOGY hereby indemnifies Licensee against any loss, expense or liability from any damages finally awarded against the Licensee in relation to any IP claim. STAUNCH TECHNOLOGY will not however be liable for any legal costs or other expenditure incurred by Licensee without “STAUNCH TECHNOLOGY’s” prior written consent.
6.3 If any injunction or order is obtained against Licensee in relation to any IP claim, STAUNCH TECHNOLOGY will, at its option:
i. procure for Licensee a right to continue using the allegedly infringing Service ; or
ii. modify or replace the Service with a compatible, functionally equivalent, non-infringing product; or
iii. remove the Service and issue to Licensee a pro rata credit based on the unused portion of the current annual Licence Fee.
7 LIMITATION OF LIABILITY
7.1 STAUNCH TECHNOLOGY will not be liable to Licensee for any loss of profits or any other indirect or consequential loss arising from Licensee’s use of the Service or from any breach of this Agreement. Subject to clauses 7.2 and 7.3, to the extent allowed by law, “STAUNCH TECHNOLOGY’s” total cumulative liability under this Agreement is limited in all circumstances to the lesser of:
• $1,000,000; and
• the Licence Fees actually paid by Licensee to STAUNCH TECHNOLOGY.
7.2 The limitations on STAUNCH TECHNOLOGY liability set out in clause 7.1 do not apply in relation to any liability, loss, claim or proceeding relating to a breach of any obligation of STAUNCH TECHNOLOGY in relation to any of Licensees Confidential Information or to the extent that such liability cannot be limited by law, the injury or death of any persons.
7.3 Notwithstanding clause 7.1, if this Agreement constitutes a supply of services to a consumer, as defined in any applicable consumer protection legislation, then to the full extent permitted by law, nothing in this Agreement will be construed as excluding, restricting or modifying any express or implied condition, warranty, right or remedy conferred by such legislation on Licensee and the liability of STAUNCH TECHNOLOGY in respect of a breach of a condition or warranty implied by such legislation (other than any non-excludable implied conditions or warranties), including liability for any consequential loss which Licensee or any other entity or person may sustain or incur, will be limited, at “STAUNCH TECHNOLOGY’s” option, to:
(a) in the case of goods:
i. the replacement of the goods or the supply of equivalent goods; or
ii. the repair of the goods; or
iii. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
iv. the payment of the cost of having the goods repaired;
(b) in the case of services:
i. the supplying of the services again; or
ii. the payment of the cost of having the services supplied again. 9.4 The Licensee acknowledges and agrees that it hereby indemnifies and holds harmless STAUNCH TECHNOLOGY from any and all liability, loss or damage suffered or incurred by STAUNCH TECHNOLOGY (including without limitation legal costs on a solicitor-client basis) arising whether in whole or in part from any information in whatever form, supplied and used by Licensee in conjunction with this Service

8 TERMINATION
8.1 STAUNCH TECHNOLOGY may terminate this Agreement immediately by notice in writing to the Licensee if the Licensee commits any material breach of this Agreement and fails to rectify such breach within seven (7) days of written notice from STAUNCH TECHNOLOGY to do so.
8.2 On termination of this Agreement howsoever occurring:
i. the Licensee must immediately cease to use and destroy all copies of the Service and all associated documentation in its possession or control;
ii. STAUNCH TECHNOLOGY’s obligation to provide Support services shall cease, but Licensee will not be entitled to any refund of any Licence Fees paid; and
iii. this Agreement will immediately terminate.
8.3 All provisions of this Agreement that are capable of surviving termination will so survive.

9 COMPLIANCE WITH LAWS
Licensee agrees to comply with all applicable laws, rules and regulations, including without limitation all export and import laws, rules and regulations. Without limitation, Licensee agrees to comply with any applicable export restrictions that may apply to the Service.

10 ASSIGNMENTS AND TRANSFERS
This Licence may not be assigned, sublicensed, remarkaeted or otherwise transferred, voluntarily or otherwise, without the prior written approval of STAUNCH TECHNOLOGY. The rights granted herein are for use solely by Licensee.

11 GOODS AND SERVICES TAX
11.1 All amounts payable in relation to this Agreement are exclusive of any tax applying to the supply of goods or services, or any similar sales tax (“GST”). Licensee must pay all GST payable under this Agreement at the time of making the payments to which the GST relates.
11.2 On receipt of a GST payment, STAUNCH TECHNOLOGY will issue Licensee with a tax invoice sufficient for Licensee to claim any input credits or tax rebates to which it is entitled. If STAUNCH TECHNOLOGY notifies Licensee that it has determined that Licensee has not paid sufficient GST in respect of any payment, Licensee must immediately pay STAUNCH TECHNOLOGY any such shortfall.

12 MISCELLANEOUS
12.1 In this Agreement, unless the contrary intention appears:
12.2 This Agreement is not intended to create a relationship of partnership, joint-venture or agency between the parties and neither party may hold itself out as being so related.
12.3 The obligations of the parties which are capable of enduring termination will survive termination of this Agreement.
12.4 A single or partial exercise or waiver of a right relating to this Agreement will not prevent any other exercise of that right or the exercise of any other right. A party will not be liable for any loss, cost or expense of any other party caused or contributed to by the waiver, exercise, attempted exercise, failure to exercise or delay in the exercise of a right.
12.5 Each
i. the singular includes the plural and vice versa;
ii. all monetary amounts are in Australian dollars;
iii. a reference to time is to local time in Mackay, Queensland,; Australia and
iv. a reference to any thing or amount is a reference to the whole and each part of it.
v. Headings are for convenience only and do not affect the interpretation of this Agreement.