Software Assistant End User Licence Agreement

Software Assistant End User Licence Agreement

IMPORTANT—READ CAREFULLY. This Licence Agreement (“the agreement”) is an agreement between Software Assistant Pty Limited t/a Thomson Reuters (ABN 64 058 914 668) of 19 Harris Street, Pyrmont, NSW 2009, Australia (“TR”) and you as the licensee (“Licensee/You”). Your access to and use of the software (as defined below) is governed by the terms of this Agreement. By using the Software, you accept the terms and conditions of this Agreement. If you do not wish to accept these terms, do not install or attempt to use the Software.

1 Definitions

“Affiliates” means any entity or individual controlling, or any entity controlled by or under common control with a party, as the case may be. For the purposes of this definition, “control”, with respect to an entity, shall mean the right to exercise, directly or indirectly, 50% or more of the voting rights attributable to the operation of the controlled entity, and with respect to any individual, the possession, directly or indirectly, in whole or in part, of the power to direct or cause the direction of the management or policies of a party.

“Confidential Information” means (i) your non-public information, (ii) the TR Materials, Software and Services, (iii) the terms and conditions of this Agreement including pricing, (iv) information relating to either party’s customers or your and their non-public information and (v) all other exchanged software, data, information and materials marked as confidential or that should otherwise be understood to be confidential in the reasonable exercise of the receiving party’s judgment.

“Hosted Application” means the version of the Software to which you are granted certain access and usage rights hereunder, which is installed on and accessed from TR owned and/or controlled computer systems via the Internet.

“Order Form” means any TR order form detailing the Software and/or Services supplied to you in accordance with the terms of this Agreement, the pricing for that Software and/or Service and other related information (e.g. length of Term) that you completed prior to being provided with access to the Software and/or Services.

“Personal Information” means Personal Information as defined in the Privacy Act 1988 (Cth).

“Privacy Law” means:
(a) the Privacy Act 1988 (Cth);
(b) any legislation (to the extent that such legislation applies to either party) from time to time in force in any Australian jurisdiction (which includes the Commonwealth of Australia and any State or Territory of Australia) affecting privacy or the collection, handling, storage, processing, use or disclosure of data; and
(c) any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued pursuant to that legislation, as amended from time to time.

“Services” shall mean those services, if any, provided to you in addition to the Software terms including, without limitation training, bank feeds or SMS services. Where the services are supplied by a third party, they may be the subject of separate terms stipulated by the provider.

“Software” means the TR owned or licensed data processing program(s) licensed to you pursuant to the terms of this Agreement as specified in your Order Form and consist of a series of instructions or statements in machine-readable form and/or any database consisting of a systematised collection of data in machine-readable form, but specifically excluding your data.

“Specifications” means the published specifications for the Software, as may be updated or amended from time to time as necessary due to updates, enhancements or changes to applicable tax code, accounting laws or technical requirements that are published on the TR website.

“TR Materials” means (i) those TR systems hosting the Software, the Hosted Applications, and all source code, applications and processes making up the Software and/or Services, (ii) any information about the same contained in the Specifications, the Software documentation, user, technical and training manuals or otherwise in whatever format, (iii) Software updates, modifications, enhancements, screen shots, layouts, text and user interfaces, and (iv) any and all concepts, ideas, methods, methodologies, procedures, processes, know-how, techniques, models, templates and software contained in (i), (ii) or (iii) and/or which TR creates, acquires, owns or otherwise has or obtain rights to, in connection with its performance of Services under this Agreement.

2 Term

2.1 This Agreement is effective from the date specified on the Order Form for the relevant Software or Service (“Commencement Date”) and remains in effect for the period specified on the Order Form (the “ Initial Term”). Where no Commencement Date or Term is specified in the Order Form, then the Initial Term of the Software licence will be for a minimum of twelve months from the date of the order. Services are either annual to run concurrently with the Software licence or in fixed increments notified at the time of purchase.

2.2 On expiry of the Initial Term, the Term will automatically renew for one or more additional subsequent twelve month term(s) (each a “Renewal Term”) unless you notify TR in writing within thirty (30) days of the date of the renewal notification sent to you by email that you do not wish to renew the licence for the Renewal Term. The Initial Term or Renewal Term of a particular licence shall continue for the period set out in the Order Form relating to that period unless that licence is terminated in accordance with the terms of this Agreement.

3 Grant of Software Licence.

3.1 You are licensed on a non-exclusive, non-transferable basis to use the Software you have accessed and related TR Materials solely in accordance with the term and conditions of this Agreement.

3.2 Delivery of the Software occurs when TR has either:
(a) delivered possession of the Software to a common carrier;
(b) made the Software available via download to a computer linked to your internal network; or
(c) in the case of the Hosted Application; once an account is established and you are provided with access to that account.

3.3 You may install, use, access, display and run only one copy of the Software on a single computer, workstation or terminal (“Computer”).

3.4 You may store or install a copy of the Software on a storage device such as a network server, where it is used only to run the Software on your other Computers over an internal network. You must, however, acquire a licence for each separate Computer on which the Software is accessed, run, displayed or utilised from the server or similar device. A licence may be transferred from one Computer to another Computer, however a licence may NOT be shared or used concurrently to use or access the Software on more than one Computer.

3.5 In the case of the Hosted Application, each user is provided with a user name and password. They may not share that user name and password with any other user.

3.6 You are not authorised to do any of the following without the prior written approval of an authorised signatory of TR:
(a) export (or use or access the Software in contravention of any applicable export laws), rent, lease, lend, sub-license, give, sell, resell, or otherwise transfer the Software;
(b) remove or obscure TR’s proprietary rights notices which are a part of the Software;
(c) modify, reverse engineer, decompile or disassemble or develop any software derivative of or interfacing with the Software, nor attempt to or permit any of the foregoing;
(d) use, modify or copy the Software other than as authorised by this Agreement;
(e) use or retain possession of the Software or any copies after the expiry or termination of the applicable licence; except as expressly provided for in this Agreement; or
(f) use TR Materials to train third parties in the use and operation of the Software(s) other than those parties expressly authorised by TR.

4 Intellectual Property Rights

4.1 TR retains all ownership and use rights in the TR Materials including the Software. The TR Materials and Software are subject to protection under the copyright and or trade secret laws, where applicable, and other intellectual property laws of Australia and other jurisdictions. The rights granted in clause 3 are the only rights that TR grants with regard to the Software and TR Materials.

4.2 Notwithstanding anything to the contrary express or implied, there are no implied licences to any Software, TR Materials or to any other Thomson Reuters’ proprietary information, documentation, record or Software (or to any part, portion or aspect thereof). TR or its suppliers own all rights in and to the Software and has full power and authority to grant the rights set out in this Agreement, and TR retains all rights not specifically granted to you in this Agreement.

5 Services

5.1 TR will only be obligated to perform or supply the Services and provide those deliverables specified in an Order form. Any changes in the scope of Services or deliverables must be requested by Order Form. Changes in the scope of Services or deliverables may mean that you have to pay additional fees.

5.2 Any Services supplied by TR on behalf of a third party, may be subject to additional terms. You will be notified of those terms when you subscribe to the relevant Service.

6 Authorised Users

6.1 Where you are supplied with access to the Hosted Application, you will be required to supply to TR certain information including name, address, telephone number and other identifying information for each user, prior to being issued with a user name and password to access the Hosted Application.

6.2 It is your responsibility to remember and protect your password and to not give your password to any other person. You are responsible for any liability that may occur as a result of you or an employee giving their password to a third party or to employees within your organisation who have not been issued with their own user name and password.

6.3 The Software shall only be used by your employees and only in the course and scope of their employment by you. They may not use the Software for or on behalf of a person or entity unrelated to your organisation.

6.4 If you are a professional services firm, you and your employees may use the Software to provide services to your clients provided that your clients may not themselves use the Software without entering into a separate licence agreement with TR.

6.5 TR is not required to provide any technical or other support to your client nor is TR in any way liable to your client, unless that client is licensed to use the Software by TR.

6.6 You will indemnify and hold TR harmless from and against liabilities, losses, costs, and expenses (including reasonable attorney’s fees) incurred by TR in connection with any misuse of the Software by your employee in breach of this Agreement.

7 Payment and Pricing

7.1 You agree to pay licence fees and additional charges in accordance with pricing set out in the Order Form on order or renewal (as applicable). Payment of all fees and charges must be made prior to being provided with access to the Software and/or Services.

7.2 If TR does not receive payment for invoiced charges not otherwise subject to a good faith dispute (including without limitation, licence fees, service fees and taxes) within thirty (30) days of the invoice date, your account shall be considered past due and TR shall have the absolute right, upon ten (10) days notice, to stop service or terminate this Agreement.

8 Support Services

8.1 The following ongoing support services for Software shall be provided during the Term: (1) any updates and solutions as such solutions and updates are published by TR, (2) corrections to material problems that TR is able to reproduce and/or diagnose, (3) enhancements to the Software that TR elects to incorporate into and make a part of the Software that are not separately marketed and (4) telephone support reasonably required for the use and maintenance of the Software.

8.2 Support services to be provided by TR shall not include support of or for: (1) Software installed on equipment not identified by TR in its system requirements published on the TR website, (2) Software not properly used or used in an operating environment not designated in the system requirements, (3) use by you of an out of date version of the Software or (4) support required because of a failure to undertake training provided by TR.

9 Confidentiality

9.1 The Confidential Information will be kept confidential and each party shall (i) use the Confidential Information only for the purpose of performing its duties under this Agreement and (ii) exercise diligence to maintain all Confidential Information in confidence, meaning at least the same precautions and standard of care which a reasonable person in such a business would use to safeguard their own proprietary Confidential Information.

9.2 Disclosure of the Confidential Information shall be limited to only (i) the party receiving the Confidential Information (“the Recipient’s”) employees who need to know the Confidential Information in connection with their normal duties and who shall agree to be bound by the obligations at least as protective as set out in this clause and (ii) any sub-contractors of TR (where they are required to have access to such Confidential Information for the purposes of providing the Services contemplated in this Agreement), and shall not be distributed or disclosed in whole or in part to any other employees and/or third parties within or without the Recipient’s organisation, without prior written consent of the Party disclosing the information (“the Disclosing Party”).

9.3 The term “Confidential Information” does not include Confidential Information that (i) is or becomes generally available to the public other than as a result of disclosure by the Recipient or anyone to whom the Recipient discloses the Confidential Information, (ii) becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party who is not bound by a confidentiality agreement with the Disclosing Party, (iii) was known to the Recipient or in its possession prior to the date of disclosure by the Disclosing Party, (iv) is disclosed with the Disclosing Party’s written permission, or (v) is independently developed by the Recipient without reference to the Confidential Information.

9.4 Upon the termination or expiration of this Agreement, upon Disclosing Party’s request, Recipient shall promptly either (i) return the Confidential Information to the Disclosing Party, including any copies or extracts thereof, or (ii) destroy the Confidential Information (to the extent permitted by applicable law or regulation) and, at the Disclosing Party’s request, certify in writing that such Confidential Information has been returned or destroyed and that no copies thereof, except such copies specifically provided for in this Agreement or other agreement(s) between the parties, have been made or retained.

9.5 Notwithstanding the foregoing, TR may retain any Confidential Information that it is required to keep for archival or compliance purposes or that it would normally retain as part of its system back-up procedures, subject to TR’s continued performance of its confidentiality obligations with respect to such Confidential Information.

9.6 In the event that the Recipient becomes legally compelled to disclose any of the Confidential Information, it will provide the Disclosing Party with prompt notice, to the extent Recipient is permitted to do so, so that the Disclosing Party may seek a protective order or other appropriate remedy, and/or authorise the Recipient to release the Confidential Information. In the event that such protective order or other remedy is not obtained, or that the Disclosing Party authorises Recipient to release the Confidential Information, the Recipient will furnish only that portion of the Confidential Information which it is legally required to disclose, and will exercise all reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Confidential Information.

9.7 If any action by Recipient shall require the consent or approval by the Disclosing Party, such consent to or approval by the Disclosing Party to such action on any one occasion shall not be deemed a consent or approval of any other action on the same or any subsequent occasion.

9.8 In the event of any breach of the obligations set forth in this clause by the Recipient or its representatives, the Disclosing Party could be irreparably and immediately harmed and may not be made whole by monetary damages. Without prejudice to any rights and remedies otherwise available, the Disclosing Party shall be entitled to seek equitable relief by way of injunction in the event of a breach of any provision of this clause.

9.9 The obligations of confidentiality set forth herein shall govern all communications and disclosure/receiving of Confidential Information between us and shall continue for a period of three (3) years following expiration or termination of this Agreement.

10 Warranties

10.1 TR warrants that when used in accordance with the Specifications, the Software provided hereunder will conform to applicable Specifications in effect as of the date of delivery and as updated from time to time. In the event of the Software’s failure to so conform, and subject to any statutory obligations that cannot be excluded, TR, at its sole option, may repair or replace the Software to the extent TR shall deem reasonably necessary to restore the item to perform in accordance with the applicable Specifications. In the event that TR is unable to provide the remedy set forth above within a commercially reasonable period of time, TR shall credit your account for a pro-rated portion of the fee paid by you under this Agreement with respect to the time of period that you were not able to use the defective Software and your licence to the Software will then cease.

10.2 The foregoing warranty does not apply to Software to the extent such Software (i) has been modified by any party other than TR, or without TR’s prior written consent, (ii) has been improperly installed by you or installed by anyone other than TR, (iii) is an out of date version of the Software or (iv) is used in a manner other than as authorised under this Agreement.

10.3 Except to the extent required by any applicable law or regulation, including, but not limited to the Competition and Consumer Act 2010 (Cth) (or any legislation which amends or repeals that law), the remedies set forth in this paragraph are your sole and exclusive remedies, and TR’s sole and exclusive liability, for the failure of the Software to conform to the Specifications.

11 Disclaimers

11.1 OTHER THAN THE WARRANTIES SPECIFICALLY SET OUT IN THIS AGREEMENT AND OTHER THAN AS REQUIRED BY LAW, TR MAKES NO WARRANTIES AND YOU SHALL BE DEEMED TO HAVE ACCEPTED THE SOFTWARE AND ANY SERVICES PROVIDED “AS IS” AND “WHERE IS”, AND WITHOUT ANY ADDITIONAL WARRANTY OF ANY KIND. TR MAKES NO WARRANTY OF SUITABILITY, MERCHANTABILITY OR FITNESS FOR PURPOSE OR WARRANTY THAT THE SERVICES OR SOFTWARE OFFERED OR PROVIDED WILL MEET YOUR REQUIREMENTS, NOR DOES TR WARRANT THAT THE SERVICES OR SOFTWARE ARE ERROR FREE OR THAT THEIR USE WILL BE UNINTERRUPTED.

11.2 YOU WAIVE ALL OTHER RELATED WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR AN INTENDED OR PARTICULAR PURPOSE, TIME OF PERFORMANCE OR OTHERWISE.

11.3 YOU ASSUME SOLE RESPONSIBILITY AND ENTIRE RISK AS TO THE SUITABILITY AND RESULTS OBTAINED FROM USE OF THE SOFTWARE AND SERVICES, AND ANY DECISIONS MADE OR ACTIONS TAKEN BASED ON THE INFORMATION CONTAINED IN OR GENERATED BY THE SOFTWARE AND SERVICES.

11.4 YOU UNDERSTAND AND AGREE THAT RESULTS OBTAINED FROM USE OF AND TR SUPPORT RECEIVED FOR THE SOFTWARE (I) WILL NOT, UNDER ANY CIRCUMSTANCES, BE CONSIDERED TAX, LEGAL OR ACCOUNTING ADVICE AND IT WOULD BE ADVISABLE FOR YOU TO OBTAIN SUCH ADVICE FROM YOUR LAWYER, ACCOUNTANT, OR TAX OR OTHER BUSINESS ADVISOR, (II) DOES NOT RELIEVE YOU OF RESPONSIBILITY, INCLUDING YOUR RESPONSIBILITY TO ANY THIRD PARTY, FOR THE PREPARATION, CONTENT, ACCURACY AND REVIEW OF, OR THE APPROPRIATE TAX TREATMENT OF ITEMS REFLECTED ON TAX RETURNS OR FINANCIAL STATEMENTS, AND (III) ARE INTENDED SOLELY TO SUPPLEMENT THE KNOWLEDGE OF ACCOUNTING, TAX AND OTHER BUSINESS PROFESSIONALS REGARDING TAX PLANNING, COMPLIANCE, AND RELATED BUSINESS MATTERS, AND ARE NOT MEANT TO REPLACE SOUND PROFESSIONAL JUDGMENT OR INDIVIDUALISED ATTENTION OF SUCH PROFESSIONALS OR YOUR CIRCUMSTANCES.

12 Limitation of Liability

12.1 For all claims of damages during any twelve (12) month period relating to TR’s performance under this Agreement, including penalties and interest, and regardless of the form of claim or action, whether in contract, tort, strict liability or otherwise, including without limitation, claims regarding the Software or Services or work product, any other undertakings promised herein or for any TR error or other breach of its obligations hereunder, TR’s total liability shall not exceed an amount equal to the fees paid by you to TR under this Agreement for the applicable Software(s) or Services which forms the basis of such claim(s), during such twelve (12) month period. In the event that this Agreement has been in effect for less than twelve months, then such liability shall be reduced proportionately to correspond to the expired period of the Term.

12.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL TR BE LIABLE FOR: (A) INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR COSTS, INCLUDING LOST OR DAMAGED DATA; LOSS OF PROFIT OR GOODWILL, WHETHER FORESEEABLE OR NOT, EVEN IF TR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (B) PENALTIES, INTEREST OR TAXES ASSESSED BY A TAXING AUTHORITY; (C) THIRD PARTY CLAIMS AGAINST TR OR YOU; OR (D) DAMAGES TO THE EXTENT THEY ARISE BECAUSE YOU HAS FAILED TO PERFORM YOUR RESPONSIBILITIES UNDER THIS AGREEMENT, OR YOU CONTRIBUTED OR ACTED AS AN INTERVENING CAUSE INCLUDING BUT NOT LIMITED TO YOUR FAILURE TO INSTALL UPDATES TO THE SOFTWARE.

12.3 The Competition and Consumer Act 2010 (Cth) (including the Australian Consumer Law) (“the CCA”) provide certain guarantees to particular types of consumers and in particular circumstances. These guarantees and rights may provide you with rights that cannot be excluded. For the avoidance of doubt, nothing in this Agreement excludes, restricts or modifies such non-excludable rights and all preceding provisions are to be read subject to the provisions of the CCA.

13 Professional Responsibility and Indemnity.

13.1 Although the Software provided hereunder is a tool to assist you in the preparation of, as applicable, tax returns, financial statements, company documents and/or other related documents (“Tax Documents”), you are solely responsible for the content, elections, accuracy and timely submission of all such Tax Documents. You agree to defend, at your own expense, indemnify and hold TR harmless against liability (including without limitation, reasonable attorneys’ fees, penalties and interest) arising directly or indirectly from any suit, claim or proceeding brought against TR by any party based upon preparation, submission or filing of Tax Documents through use of TR Software by or on your behalf.

14 Data Security Review, Notification and Privacy.

14.1 TR has taken reasonable measures to provide a secure environment for receipt and transmission of information. However, since use of the hosted version of the Software (“the Hosted Application”) depends, in part, on third parties (e.g. telecommunications carriers) whose performance is outside of TR’s control, TR disclaims all liability for damages arising from the failure of the Hosted Application due to such third parties’ performance. TR also disclaims all liability for damages arising from the disclosure or dissemination of information during transmission to or from the Hosted Application, although such information shall be encrypted while in transmission. Notwithstanding anything to the contrary express or implied, TR shall have no responsibility for delays or errors related to the Hosted Application caused by systems or components outside of the TR network, including but not limited to your hardware, software and/or networking systems, telecommunications systems, Internet access, telephone access lines and telephone and communications equipment.

14.2 TR shall, as soon as is reasonably possible, notify you of any breaches in security or unauthorised or suspicious access to the Hosted Application indicating that an individual has damaged the Hosted Application or gained unauthorised access to the Hosted Application in a way that has adversely affected your information, including any corruption, loss or mis-transmission of data, or any breach of data security during transmission and storage. In the event of any such security breach, TR shall perform a root cause analysis to identify the cause of such security breach and shall, on an expedited basis, provide to you a report detailing the cause of such a security breach.

14.3 Each party undertakes to comply with the Privacy Laws applicable to such party’s performance of its obligations under this Agreement.

14.4 You expressly acknowledge and consent to (i) TR sharing, transferring and disclosing Personal Information provided by you with Affiliates and third party service providers who may in some instances be located outside of Australia (including, but not limited to, the United States, India, Singapore or the United Kingdom) to the extent required in providing access to, maintaining and servicing the Software or Services as part of TR’s information technology arrangements and (ii) such Affiliates or third party service providers storing and processing such Personal Information provided by you on servers that may be located outside of Australia (including, but not limited to, servers located in the United States, Singapore, United Kingdom or India).

14.5 In particular, but without limitation, you warrant that: (i) you will only disclose Personal Information about an individual to TR if necessary for the purposes of this Agreement; (ii) in so doing you will comply with the Privacy Act 1988 (Cth) (“the Privacy Act”); (iii) use and disclosure of such Personal Information by TR in accordance with the terms of this Agreement will not result in a breach of the Privacy Act by you or TR; (iv) you have obtained all necessary consents or authorisation required under the Privacy Act in respect of any Personal Information provided to TR such that TR is able to provide the Services and Software to the you in accordance with the terms of this Agreement; and (v) you and all those accessing the Software pursuant to the terms of this Agreement will comply with Thomson Reuters’ Privacy Policy, which can be viewed online at http://www.thomsonreuters.com.au/terms/privacy-policy.aspx.

14.6 You are responsible for ensuring that if a third party is required to disclose to TR, Personal Information for the purposes of this Agreement on your behalf or at your request, such disclosure by the third party complies with the Privacy Act.

14.7 If TR is required to retain any Personal Information by Law (i) you have taken all steps to ensure that it is permitted to do so, and (ii) on reasonable notice, and payment of a reasonable charge, TR will make such information available for inspection by you or your auditors.

15 Termination

15.1 Termination for Cause: In the event of a failure by either party to conform or comply with any material term, covenant or obligation hereunder, the non-defaulting party shall notify the defaulting party in writing specifying with reasonable certainty the defaults claimed. The defaulting party shall have thirty (30) days thereafter within which to cure all of said defaults. If and in the event that the defaulting party shall not cure said defaults within the thirty (30) day period, the non-defaulting party shall have the absolute right without further notice to terminate this Agreement. Where you seek to cancel this Agreement or any supply of any Software or Service provided hereunder prior to expiry of the Initial Term or any relevant Renewal Term without due cause; you will not be entitled to any refund or credit of any fees already paid by you relating to the unexpired Term.

15.2 Insolvency: If either party becomes or is declared insolvent or bankrupt or ceases to operate in the ordinary course of business, the other party may, by giving written notice thereof, immediately suspend all performance hereunder and/or terminate this Agreement with respect to the applicable Order Form as of the date specified in the notice. In the event of termination due to your insolvency, TR shall be entitled to make a claim in respect of the balance of any unpaid Fees for the relevant Initial Term or Renewal Term in which the insolvency event occurred.

15.3 Software Discontinuance: In the event that TR discontinues the sale or licensing of any Software, TR will give you reasonable advance notice of such discontinuation, and upon such date of discontinuation, TR shall have the right to terminate your licence to the applicable Software. As of the date of termination, TR shall credit you, on a pro-rated basis, for any pre-paid fees relating to the discontinued Software and TR shall have no further obligation to provide support in relation to that Software.

16 Consequences of Termination

16.1 Hosted Application: if you are using a Hosted Application, your access will discontinue on expiry or termination of the Term.

16.2 Installed Software: if you are using Software that has been installed on your desktop, you will be able to access the Software in read only mode. You will then be able to export your data, print reports and view transactions. You will not be able to modify or delete any data.

16.3 Clauses 4, 9, 10, 11, 12, 13, 16 and 19 shall survive termination or expiration of this Agreement.

17 Force Majeure

17.1 TR will not be liable for any damages or injury caused by any delay in or failure or defect of performance under this Agreement, or be liable for any other consequences, damage, injury or loss, caused by or resulting from any act, event, occurrence, or cause beyond its reasonable control, including without limitation, failure of telecommunications or Internet services, war, vandalism, sabotage, terrorism, accidents, epidemics, quarantines, fires, explosions, earthquakes, floods, strikes, labour disputes, shortages or delays in obtaining suitable material, labour or transportation, interruption of utility services, acts of any government unit or agency thereof, or acts of the other party, or any similar cause.

18 Assignment

18.1 Neither party may assign its rights and remedies nor transfer its obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld. However, upon written notice to the other party, either party may assign this Agreement to any present or future parent, subsidiary, or Affiliate, or as part of the sale of its business using the Software and Services provided hereunder, or pursuant to any merger, consolidation, or other reorganisation, without the other party’s consent PROVIDED THAT the assignee is solvent and capable of performing the assignors obligations contemplated in this Agreement. An assignee of either party, as authorised hereunder, shall assume all of the rights and obligations of the assigning party set forth in this Agreement.

19 Limitation of Actions

19.1 You may not assert any cause of action against TR more than one (1) year after the date the cause of action accrues.

20 Governing Law

20.1 This Agreement shall be governed by and construed in accordance with the law of New South Wales (without regard to principles of conflicts of law). Each of the parties expressly and irrevocably consents to the exclusive jurisdiction of the courts of New South Wales for the purpose of any action relating to this Agreement and expressly and irrevocably waives, any objection which it may have to the laying of venue of any action brought in any court and any claim that any action has been brought in an inconvenient forum.

21 Miscellaneous

21.1 Any notice given hereunder shall be written, delivered personally, by certified mail or nationally recognised overnight carrier, addressed in the manner below and deemed to have been given when received.

21.2 Should any part of this Agreement be held by a court of competent jurisdiction to be invalid, illegal or unenforceable, that portion shall be deemed null and void and severed from this Agreement for all purposes and the remainder of this Agreement shall remain in full force and effect.

21.3 Any delay or failure to exercise any right or remedy or to complain of any act or omission under this Agreement shall not be construed to be a waiver of any such right or remedy or any other right or remedy hereunder, nor shall any express waiver constitute a continuing waiver. The waiver by either party at any time, expressed or implied, of any breach or attempted breach of the obligations set forth in this Agreement shall not be deemed a waiver of or a consent to any subsequent breach or attempted breach of the same or any other type.

21.4 Except as expressly limited in this Agreement, all of the rights of either party under this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law or in equity, and may be exercised separately or concurrently.

22 Entire Agreement

22.1 This Agreement constitutes the entire understanding between us concerning the licensing of the Software and provision of related services and supersedes all other agreements between us with respect to the subject matter herein, including without limitation any terms and conditions appearing on a purchase order or other form(s) used by you. You acknowledge and agree that no representations have been made by TR other than as expressly set forth in this Agreement, and that you have not relied on any representations not expressly set forth herein.

22.2 TR may make changes to the terms and conditions of this Agreement from time to time to accommodate changes in law or business practice. If TR makes such changes, it will notify you in writing before such changes take effect. Your acceptance of further goods and services and/or payment of further instalments due after the date you are notified of a change is deemed acceptance of those changes. If you do not want to accept the changes, you are entitled to terminate any ongoing licence affected by the change by written notice to TR within 30 days after receiving notice of the relevant changes. Any other changes to the Agreement shall not be binding unless in writing and signed by both parties.