End User Licence Agreement

1. Definitions

1. (a) The "Agreement" means this Software End User Licence Agreement and Proposal entered into between Meshed Group and the Client.
2. (b) The "Software" means the software supplied by Meshed Group to the Client as described in the Proposal and includes any improvement, update, version or adaptation of the Software.
3. (c) The "Documentation" means the documentation supplied by Meshed Group to the Client in connection with the Software, including but not limited to installation and user manuals and guides.
4. (d) The "Services" means any support, training, customisation, data migration, maintenance and/or hosting services supplied by Meshed Group to the Client as described in the Proposal.
5. (e) The "GoLive Date" means the project implementation completed date.
6. (f) The "Anniversary" means 12 months from the "Initial Licence Period" commencement date and every 12 months thereafter.
7. (g) The "Concurrent User Licence" is defined as software licence that is based on the number of simultaneous users accessing the software. For example, in a five user concurrent user licence, after five users are logged in to the software, the sixth user is prohibited.
8. (h) The "Enrolment Licence" is defined as software licence that is based on the number of course the student is enrolled in. For example, if a student is enrolled in 2 courses then it is counted as 2 enrolment licence.
9. (i) The "Higher Education Enrolment Licence" is defined as minimum 1 subject per course per student enrolled in a semester. For example, if a student is enrolled in one or more subjects in a semester, then that will be counted as one enrolment.
10. (j) The "Usage Licence" is defined as a software licence that is based on the number of applications submitted in the software. For example, if there are two applications submitted in the software then it will be counted as 2 Usage licences.
11. (k) The "Initial Licence Period" is defined as a period of 12 months after the Proposal is signed. It commences from the date specified in the Proposal.
12. (l) The "Renewal Licence Period" is defined as subsequent period of 12 months after "Initial Licence Period".
13. (m) The Initial Licence Period and any Renewal Licence Period(s) shall collectively be referred to as the

2. Licence

1. 2.1 Meshed Group grants to the Client a non-transferable, non-exclusive licence, as described in the Proposal (the "Licence"), to use the Software and Documentation.
2. 2.2 The Client acknowledges that the Licence is personal to the Client and must not be sold, sub-licensed or assigned to any third party without the prior written agreement of Meshed Group.
3. 2.3 The Licence Period shall be valid for the terms described in the Proposal (the "Licence Period").
4. 2.4 The Licence Period shall be extended by a "Renewal Licence Period" one or more times by operation of clauses 5.2 and/or 5.3 hereof.
5. 2.5 The client acknowledges and agrees that the licencing structure cannot be changed in the middle of the licence period. However, Meshed Group may in its absolute discretion offer the Client the opportunity to change the licencing structure, subject to an additional administrative charge.

3. Fees

1. 3.1 Meshed Group shall charge fees as described in the Proposal (the "Fees").
2. 3.2 The Client acknowledges and agrees that Meshed Group is entitled to payment of the full amount of the Fees for the Initial Licence Period, and for any Renewal Licence Period(s) subsequently agreed between the parties, annually in advance.
3. 3.3 Notwithstanding clause 3.2 above, Meshed Group may in its absolute discretion offer the Client the opportunity to enter into a monthly payment plan, subject to an additional administrative charge. Any monthly payment plan agreed to by Meshed Group is subject to prompt payment by the Client and may be withdrawn at any time.
4. 3.4 The Client acknowledges and agrees that Fees are not refundable in any circumstances, notwithstanding any decision by the Client not to use the Software, Documentation and/or Services for any reason whatsoever and notwithstanding any termination of this Agreement.
5. 3.5 The Client agrees to pay all amounts due in cleared funds no later than seven (7) days from the date of an invoice being issued.
6. 3.6 The Client acknowledges that the Fees are subject to change from time to time, and that Meshed Group shall be entitled to increase the Fees upon giving the Client fourteen (14) days' notice in writing, provided however that if Fees are increased during any part of the Licence Period with regard to which Fees have been invoiced and paid in advance by the Client, then the increase shall not apply until the expiration of the subject part of the Licence Period.
7. 3.7 Any additional Software, Documentation or Services requested by the Client from time to time shall be charged for by Meshed Group at its then current rate of Fees and shall be payable in advance by the Client.
8. 3.8 The Client acknowledges and agrees that Meshed Group may pay commissions and/or fees to any party who introduces or refers the Client to Meshed Group or the Software, or who supports the Software.
9. 3.9 In the event that the client requests any customisation and/or development considered in Meshed Group's sole discretion to fall outside the scope of this Agreement, then Meshed Group shall be entitled to charge additional fees. Meshed Group shall provide a quotation and development timeframe, which may be accepted or declined by the client.

4. Default

1. 4.1 The Client shall be taken to have committed an act of "Default" if any one or more of the following occurs;
   1. (a) The Client fails to make payment of Fees due to Meshed Group in accordance with the terms of this Agreement; or
   2. (b) The Client commits an act of bankruptcy where an individual, or is subject to any form of external administration where a company; or
   3. (c) The Client commits any other breach of this Agreement and fails to rectify this within seven (7) days of being given notice in writing by Meshed Group to do so.
2. 4.2 If the Client commits an act of Default then, without limitation to any of Meshed Group's other rights, Meshed Group may;
   1. (a) Terminate the Agreement with immediate effect; and/or
   2. (b) Require immediate payment of all Fees owing by the Client to Meshed Group; and/or
   3. (c) Immediately suspend access to the Software, the Documentation and the Services; and/or
   4. (d) Charge interest on all amounts outstanding at the rate of 10% per annum; and/or
   5. (e) Recover all costs and expenses incurred by Meshed Group in trying to obtain payment of amounts outstanding including legal costs on an indemnity basis.

5. Term and Termination

1. 5.1 This Agreement shall commence upon the earlier of the date of execution by the Client or the date referred to in the proposal.
2. 5.2 The Initial Licence Period shall be automatically extended for a further period of 12 months on the same terms and conditions of this Agreement, subject to an increase in the Fees by 5% per annum (NB: this only applies to the concurrent licence fees), unless either party serves the other with written notice that they do not wish to extend the Initial Licence Period which notice must be received no more than 60 days and no less than 30 days prior to the end of the Licence Period.
3. 5.3 Any further Renewal Licence Period shall also be automatically extended for a further period of 12 months on the same terms and conditions of this Agreement, subject to a further increase in the Fees by 5% per annum (NB: This only applies to the concurrent licence fees), unless either party serves the other with written notice that they do not wish to extend the Licence Period which notice must be received no more than 60 days and no less than 30 days prior to the end of the Licence Period.
4. 5.4 The Agreement shall continue;
   1. (a) Until the end of the Licence Period and the completion of the supply of any further Services, Software and/or Documentation by Meshed Group; or
   2. (b) Until terminated by Meshed Group in accordance with clause 4.2(a) of this Agreement.
5. 5.5 For the avoidance of doubt, it is agreed that Meshed Group is entitled to payment of all Fees in accordance with clause 3 of this Agreement, notwithstanding termination of this Agreement.

6. Intellectual Property

1. 6.1 For the purpose of this Agreement "Intellectual Property Rights" means intellectual property rights at any time protected by statute or common law, including copyright, trademarks, patents and registered designs.
2. 6.2 Meshed Group retains ownership of all Intellectual Property Rights in the Software and the Documentation including, without limitation, in any improvement, update, version or adaptation of the Software and/or Documentation made in providing the Services or otherwise and whether made by Meshed Group, the Client or any other person.
3. 6.3 The Client shall not remove any notices regarding the ownership of Intellectual Property Rights from the Software or the Documentation.

7 Client Responsibilities

1. 7.1 Subject to the Client's rights under copyright legislation;
   1. (a) The Client shall not copy or publish, or permit any other party to copy or publish, the Software, the Documentation, or any part thereof.
   2. (b) The Client shall not sell or purport to sell any copies of the Software or the Documentation. The Client acknowledges that all copies of the Software and the Documentation are the property of Meshed Group.
   3. (c) The Client shall not reverse engineer, decompile or disassemble the Software or permit any other party to do such act.
2. 7.2 The Client shall take all steps reasonably necessary to ensure that the Software and any part thereof is not made available by the Client to any other organisation or individual except with the prior written agreement of Meshed Group.
3. 7.3 The Client acknowledges that Meshed Group retains ownership of the source code of the Software, and that the Client shall not be entitled to obtain a copy of the source code or otherwise access the source code in any fashion.
4. 7.4 The Client shall be responsible for complying with any statute or common law (including but not limited to privacy and data protection laws and employment laws), regulation or code of practice applicable to the Software and its use, and in taking any action relying on the data, results or other information generated by use of the Software, and Meshed Group shall not be liable for any breach of this clause by the Client.

8. Hosting Services

1. 8.1 Meshed Group shall make available to the Client a hosting service, as referred to in clause 1(d) of this Agreement, to support the supply of the Software.
2. 8.2 Meshed Group shall provide the Client with identification and log-in information required for access to the hosting service, which the Client shall be responsible for keeping secret and secure. The Client shall be liable for payment of all charges resulting from access to the hosting service, whether such access was authorised by the Client or not.
3. 8.3 Meshed Group shall use its best endeavours to ensure the connectivity and efficiency of the hosting service during the term of this Agreement but shall be entitled to suspend all or part of the service immediately and without notice, including in circumstances where;
   1. (a) Meshed Group is required to comply with an order, instruction or request or a Government or other competent authority; or
   2. (b) There is a malfunction or breakdown in any of Meshed Group's equipment, or Meshed Group is required to undertake repairs or maintenance on any part of the service; or
   3. Suspension is reasonably required to reduce or prevent fraud or interference with the service; or
   4. (c) There is an electrical or telecommunications failure or fault, an industrial dispute or lock-out, an act of God, war, Government action or any other circumstance beyond Meshed Group's control takes place affecting Meshed Group's ability to make the service available.
4. 8.4 Meshed Group reserves the right to make amendments, alterations and repairs from time to time at its discretion, even if that amendment, alteration or repair results in a reduction in the functionality of the hosting service or in the availability of data provided via the hosting service. Meshed Group shall not be liable for any reduction in the quality, speed or performance of the hosting service as a result of any amendment, alteration or repair.
5. 8.5 Should Meshed Group's ability ever be changed in such a way that Meshed Group, in its reasonable opinion, considers it is impractical, impossible or no longer commercially viable to provide the hosting service, or should any claim be made that exposes Meshed Group to liability to the Client or any third party in connection with providing the hosting service, then Meshed Group shall have the right to suspend the Client's access to the hosting service.
6. 8.6 Meshed Group shall not be held liable to the Client or any third party in respect of any suspension in access or reduction in functionality or the availability of data in connection with the hosting service for any loss or damage whatsoever.
7. 8.7 In using the hosting service, the Client;
   1. (a) Shall comply with all reasonable directions issued by or on behalf of Meshed Group;
   2. (b) Shall comply with all applicable legislation, including with regard to privacy; and
   3. (c) Shall not engage in, or permit, disruptive activities, including but not limited to the circulation of unsolicited promotional material, proliferation of computer worms and viruses, any attempt to gain unauthorised access to any other computer system, the sending of harassing, obscene, offensive or threatening electronic mail, forgery of electronic mail, the placement, transmission and storage of defamatory or criminal material on the internet or any activity of a fraudulent or illegal nature whatsoever.
8. 8.8 Upon written request from the client, Meshed Group will provide client data backup once a year, in text tab delimited or CSV file format, provided that the subject data has not been damaged or destroyed by unforeseen events or events outside of Meshed Group's control.

9. Confidential Information

1. 9.1 For the purpose of this Agreement "Confidential Information" means any information in respect of the business, operations, products or services of Meshed Group or the Client that is not in the public domain including, in relation to Meshed Group, the unpublished content and methodology of the Software.
2. 9.2 Each party will keep Confidential Information of the other party disclosed in accordance with this Agreement confidential except for the information that is under the obligation to be disclosed pursuant to the applicable laws or regulation, or orders of the court or other government authorities.

10. Limitation of Liability

1. 10.1 To the maximum extent permitted by law, Meshed Group shall not be liable to the Client or any third party under any circumstances for any loss of profit, interruption to business, injury or death to any person, or for any indirect, incidental or consequential loss and damage sustained or incurred by the Client, whether such liability arises directly or indirectly as a result of;
   1. (a) Any breach by Meshed Group of its obligations under this Agreement; or
   2. (b) The supply, performance or use of any goods or services; or
   3. (c) Any negligent act or omission or wilful misconduct on the part of Meshed Group; or
   4. (d) The Client acting or omitting to act in reliance on the data, results or other information generated by use of the Software.
2. 10.2 The Client shall fully and completely indemnify Meshed Group in respect of all claims, actions, demands, suits, loss and/or damages sustained by any person or party whatsoever for injury to any person(s) and/or property caused by or in connection with or arising out of Meshed Group providing the Software, the Documentation and/or the Services to the Client or in the carrying out of this Agreement whether caused by any negligent act or omission or wilful misconduct on the part of Meshed Group or otherwise, and in respect of all costs and charges in connection therewith whether arising under statute or common law.

11. Warranties

All warranties and conditions which may by law be excluded are expressly excluded. Where such warranties or conditions cannot be excluded, modified or restricted, Meshed Group's liability will be limited, at its option, to;

1. (a) In the case of Software and/or Documentation: the repair of the Software and/or Documentation, the replacement of the Software and/or Documentation or resupply of equivalent Software and/or Documentation, or payment of the reasonable cost of repairing the Software and/or Documentation.
2. (b) In the case of Services: the resupply of the Services, or payment of the reasonable cost of resupplying the Services.

12. Severance and Waiver

1. 12.1 If any part of this Agreement is found to be void, unlawful or unenforceable then that part will be deemed to be severed from the Agreement and the severed part will not affect the validity and enforceability of any remaining provisions.
2. 12.2 Any failure by Meshed Group to enforce any of the provisions of this Agreement shall not be construed as a waiver of such provision or any other provision hereof unless expressly in writing and signed by Meshed Group.

13. Entire Agreement

This Agreement supersedes all prior agreements, arrangements and understandings (whether written or verbal) between the parties with respect to the subject matter of the Agreement.

14. Jurisdiction

This Agreement shall be deemed to have been made in New South Wales and shall be interpreted in accordance with the laws of New South Wales, Australia.

15. Electronic Transactions

1. 15.1 For the purposes of Sections 9 and 10 of the Commonwealth of Australia Electronic Transactions Act 1999 and Sections 8 and 9 of the New South Wales Electronic Transactions Act 2000, the parties consent and agree to the following;
   1. (a) Any notice required or permitted to be given in writing pursuant to this Agreement can be given electronically provided that it complies with the relevant sections of whichever of the above Act(s) is applicable.
   2. (b) Any signature of a party, or given on behalf of a party, to this Agreement and required or permitted for the purpose of rendering same binding on behalf of a party to this Agreement can be given electronically provided that it complies with the relevant sections of whichever of the above Act(s) is applicable.

16. Subcontracting

The Client acknowledges and agrees that Meshed Group may subcontract any of its obligations pursuant to this Agreement, including provision of the Services, to a third party without the need for any further notice or permission from the Client.

17. Execution

The Client acknowledges having read and understood this Agreement and agrees to be bound by the terms and conditions contained herein. The Client warrants that the person(s) signing the proposal has the authority to enter into this Agreement on behalf of the Client.

18. Support

Meshed Group provides phone and email support to its clients as part of the standard support deliverable within this agreement.

19. Special Provisions

This Agreement is subject to such special provisions, if any, as are set out in the Proposal.