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CALUMO END-USER LICENCE AGREEMENT


NOTICE TO USER:

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING THE LICENSED PROGRAM. BY INSTALLING THE LICENSED PROGRAM YOU ARE ACCEPTING THE FOLLOWING LICENCE AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT DO NOT INSTALL OR USE THE LICENSED PROGRAM.

1. Definitions

In this Licence Agreement, unless otherwise stated:

Agreement means this end-user licence agreement.

Concurrent User means each user or person who accesses the CALUMO Server concurrently. For the purposes of calculating the number of Concurrent Users, a user is a concurrent user for a minimum of 30 minutes after last access of the CALUMO Server.

Installation means the installation of the Licensed Program, which is then made available for use by placing the licence file (“.lic”) in the Licensed Program directory as directed by the Licensor.

Licensor means CALUMO Labs Pty Limited of Level 2, Suite 2.02 6 Talavera Road NSW 2113 ACN 096 325 521

Licensee means you, the end user of the Licensed Program

Named User means each user or person who accesses the CALUMO Server.

Order means the original order form connected with the licence of this Licensed Program, which may include a tax invoice.

Licensed Program means the CALUMO Program as supplied and updated by Licensor under this Agreement, including any components, elements, supplements or add-ons derived from third party vendors.

2. Grant of Licence

2.1 Subject to the terms of this Agreement, Licensor grants Licensee (as an individual or entity) a non-exclusive, non-transferable licence to use the Licensed Program in machine-readable form.

2.2 The Licensee is granted a licence EITHER:
2.2.1 on a Concurrent User Licence basis, OR
2.2.2 on a Named User Licence basis.

2.3 The Licensed Program is licensed, not sold. This Agreement does not provide Licensee with any title or ownership in the Licensed Program or in any intellectual property rights in it.

2.4 The Licensed Program is licensed on a single instance, per server basis only, for the applicable number of Concurrent User licences or Named User licences for which the licence has been purchased. A unique licence is required for each instance of the Licensed Program.

2.5 Except for the Order associated with this Licence, this Agreement is the complete and exclusive statement of Licensor's obligations and responsibilities to Licensee and supersedes any other proposal, representation, or other communication by or on behalf of Licensor relating to the subject matter hereof.

2.6 Where Licensees develop network scenarios that use various forms of hardware and/or software that reduce the number of devices or users that directly access or use the software on a particular server (often called "multiplexing" or "pooling" hardware or software), use of such multiplexing or pooling hardware and/or software does not, and shall not be taken to, reduce the number of Concurrent User or Named User licenses required to access or use CALUMO software. A Concurrent User or Named User licence is required for each user or person with access to the multiplexing or pooling software or hardware front end.

3. Scope of Rights

3.1 Licensee may:

a) Install one instance of the Licensed Program per Licence on the Licensee's Server;

b) Use the Licensed Program for only the number of Concurrent User licences or Named User licences and server instances (as applicable) specified in the applicable Order and only for Licensee’s internal business purposes;

c) Make an archival copy of the Licensed Program for use only as a backup copy; and

d) Copy the documentation that accompanies the Licensed Program for Licensee’s internal business purposes.

3.2 Licensee will have no right to any source code for the Licensed Program. Except as permitted by statute or other law, Licensee will not cause or allow the disassembly, decompilation or reverse engineering of the Licensed Program or otherwise attempt to gain access to the Licensed Program source code.

3.3 Licensee will not (i) enhance, modify or prepare derivative works of the Licensed Program; (ii) use the Licensed Program for any third-party training, commercial time-sharing or service bureau use; (iii) disclose the Licensed Program to any third party or license, distribute, or otherwise permit the use of the Licensed Program by any third parties (including any related entities). Licensee will use its best efforts to protect Licensor's own proprietary information, to ensure that all Licensee's personnel and all other persons afforded access by Licensee to the Licensed Program will protect it against improper use, dissemination, or disclosure.

3.4 Except as provided in clause 3.1 or as permitted by statute or other law, including without limitation Licensee will not copy the Licensed Program, in whole or in part, without the prior written consent of Licensor. Licensee will not remove or obscure any copyright, patent, trademark, trade secret or similar notice incorporated in the Licensed Program or any copy of the Licensed Program.

4. Limited Warranty

4.1 Licensor warrants to Licensee that for a period of ninety (90) days (“Warranty Period”) from Installation of the Licensed Program, the Licensed Program will perform substantially in accordance with the applicable user documentation (if any). Licensor does not warrant that the Licensed Program is error-free or that its use will be uninterrupted.

4.2 The warranty set out in this clause 4.1 will not apply if the Licensed Program has been:

(a) altered or modified; or

(b) subjected to negligence or computer or electrical malfunction; or

(c) used, adjusted, installed, or operated other than in accordance with instructions provided by Licensor or with an application or in an environment other than that intended or recommended by Licensor.

4.3 As Licensor’s sole liability and Licensee’s exclusive remedy for a breach of the warranty set forth in clause 4.1, Licensor will attempt through reasonable efforts to correct such nonconformity. This remedy is available only if Licensor is promptly notified in writing, within the period specified in clause 4.1, upon discovery of the non-conformity by Licensee and Licensor’s examination of the Licensed Program discloses that such non-conformity exists.

4.4 Except as provided by statute or other law and the express, limited warranty provided in this clause 4, Licensor makes no warranties whatsoever, either express or implied, with respect to the Licensed Program.

5. Warranty

5.1 Except as provided below, Licensor warrants that the Licensed Program (as used within the scope of this Agreement) does not and will not infringe or violate any intellectual property right of any third party.

5.2 Licensor will have no liability or obligation to Licensee with respect to any patent, copyright, trade mark, trade secret infringement or claim based upon:

(a) compliance with designs, plans or specifications of the Licensee;

(b) use of the Licensed Program by the Licensee in combination with devices or products not provided by Licensor where the Licensed Program would not itself be infringing;

(c) use of the Licensed Program by Licensee in an application or environment for which such Licensed Program was not designed or contemplated;

(d) modifications of the Licensed Program by Licensee;

(e) any claims based on intellectual property rights owned by Licensee or any of its affiliates;

(f) use of other than the most current version of the Licensed Program available from Licensor.


6. Term

6.1 This Agreement will become effective upon Installation of the Licensed Program and will continue unless and until terminated earlier for breach.

6.2 This Agreement may be terminated by either party if the other party has materially breached its obligations under the Agreement and has not cured such breach within thirty (30) days of being notified in writing thereof by the non-breaching party.

6.3 Subject to clause 6.5, upon termination of this Agreement, all rights granted and obligations of the parties will cease.

6.4 As soon as practicable upon termination of this Agreement for any reason Licensed Program Licensee will either return or certify the destruction of all copies of the Licensed Program in Licensee's possession (whether modified or unmodified), and all other materials relating to the Licensed Program (including all copies thereof).

6.5 Clauses 3.2, 3.3, 3.4, 4, 5, 6, 9, 10 and 11 will survive termination of this Agreement.

7. Maintenance and Support

7.1 Licensee will obtain technical support from Licensor’s technical support department. Provided the Licensee has elected to and paid for the maintenance coverage, Licensor will support the Licensed Program in the manner specified in Licensor's maintenance and support policy, as may be further described on Licensor’s website (if applicable). Licensor reserves the right to change its support and maintenance policy upon reasonable written notice to Licensee.

7.2 When purchased, maintenance coverage begins the date of delivery of the Licensed Program, and is renewable on an annual basis at the option of Licensee. Maintenance renewal pricing is calculated at 25% of the then current recommended retail price of the Software at the time of maintenance renewal, and is a non-refundable service once purchased. The maintenance service includes new product releases and upgrades as they become available, as well as technical support.

7.3 If Licensee decides not to purchase or fails to renew existing maintenance coverage, and at a later stage elects to obtain maintenance coverage, Licensor reserves the right to charge Licensee for all associated costs including, but not limited to, the normal maintenance fee, and any other costs associated with bringing the Licensed Program to a then-current standard.

8. Proprietary Protection of Licensed Program

8.1 Licensor will have sole and exclusive ownership of all rights and title to, and interest in the Licensed Program and all modifications and enhancements thereof (including ownership of all related intellectual property rights).

8.2 Licensee will not take any action inconsistent with such title and ownership. Licensee will keep the Licensed Program free and clear of all claims, liens, and encumbrances.

8.3 With 30 days advance written notice, Licensee hereby authorises Licensor to enter Licensee's premises during business hours or at times otherwise agreed in order to inspect the Licensed Program and carry out any reasonable procedures with the sole purpose of ascertaining and ensuring compliance with this Agreement.

9. Liability

9.1 Subject to clause 9.3, in no event will Licensor be liable for any damages (including without limitation damages for loss of business profits, business interruption, loss of business information or data or any other pecuniary loss), arising out of the sale, supply, installation, use or failure or delay in supplying of the Licensed Program, on whatever legal or other basis, even if Licensor has been advised of the possibility of such damages or losses.

9.2 Subject to clause 9.3 and without limiting clause 9.1, Licensor’s liability arising out of the manufacture, sale, supply installation, use or failure or delay in supplying of the Licensed Program or their use or disposition, on whatever legal or other basis, will be limited to the lesser of the payment of the cost of i) replacing the Licensed Program; (ii) repairing the Licensed Program; or (iii) acquiring an equivalent Licensed Program.

9.3 Nothing in this clause 9 is intended to exclude, limit or modify liability of the Licensor or the rights or remedies of the Licensee if or to the extent that these may not by statute or other law be so excluded, limited or modified.

10. General.

10.1 This Agreement is governed by the laws in force in New South Wales. The parties agree that all disputes arising out of this Agreement will be subject to the non-exclusive jurisdiction of courts in New South Wales.

10.2 Any pre-printed terms and conditions of any order issued by or signed on behalf of the Licensor in connection with this Agreement which are in addition to, inconsistent with, or different from the terms and conditions of this Agreement will prevail to the extent of the addition, inconsistency or difference.

10.3 No modification of this Agreement will be binding unless it is in writing and signed by an authorized representative of both Licensor and Licensee.

10.4 Any notices required or permitted under this Agreement will be effective upon receipt and will be in writing and delivered in person or sent by registered or certified mail, return receipt requested, with proper postage affixed.

10.5 If any provision of this Agreement is or becomes prohibited, invalid or unenforceable in any jurisdiction, that provision will, as to that jurisdiction, be ineffective to the extent of the prohibition, invalidity or unenforceability without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of that provision in any other jurisdiction.

10.6 This Agreement will be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns. Licensee may not assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, without Licensor’s prior written consent. Any purported transfer, assignment or delegation without such prior written consent will be void and of no effect.

10.7 Waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.

10.8 Neither party is the agent or representative of the other party, nor are the parties joint venturers or partners for any purpose.

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