End User License Agreement (EULA)

The following is the software license agreement for NovaMind. Users must accept this license agreement in order to use the NovaMind software.

WARNING: Permission to use the NovaMind Software ("Software") is conditional upon You, the Customer, agreeing to the terms set out below. You must read this contract carefully. By using all or any portion of the NovaMind Software ("Software") You accept all the terms and conditions of this Agreement. Acceptance shall bind You and all of Your employees in terms of this License. Including, in particular, any limitations on use, transfer ability, warranty and liability. You agree this Agreement is enforceable in the same manner as any written negotiated contract signed by You. If You do not agree, do not use this Software and return it to NovaMind.

BACKGROUND

NovaMind has the rights to the Intellectual Property in the Software. NovaMind permits You to use the Software only in accordance with the terms of this Agreement.

YOU AND NOVAMIND COVENANT AND DECLARE AS FOLLOWS:

1. DEFINITIONS

1.1 Defined Terms

In this Agreement, unless the context requires otherwise:

• "Activate" means entering the required information in the NovaMind license entry panel and submitting the information via the Internet to NovaMind;
• "Agreement" means this agreement entitled "NovaMind Software License Agreement" including any schedules, appendices or annexures and any written variations of the agreement;
• "Agreement Date" means the date specified as such in the Schedule;
• "Authorised Hardware Limit" means that number of Computers on which You may install the Software which in this instance is:
  1. Single User - A Single User license allows a single user to use the Software. You may use this license for either a single computer where different people use the Software on that computer at different times, or for a single user who has several computers. You may not have more than one person using one single-user licence at any given time.
  2. Network (with specified number of users) -This license allows up to the specified number of concurrent users to use the Software at any given time.
  3. Unlimited Network License - This license allows an unlimited number of users to use the Software within a single organization and location (e.g. university campus).
• "Claim" means, in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether ascertained or unascertained, or immediate, future or contingent;
• "Computer" means an electronic device that accepts information in digital form and manipulates it for a specific result based on a sequence of instructions;
• "Customer" means You the end user as does any reference to "You" or "Your";
• "Force Majeure" means any act of God, fire earthquake, storm or flood or any other cause beyond the reasonable control of the party claiming the benefit of clause 12.3 and which that party is unable to overcome by the exercise of reasonable diligence and at a reasonable cost;
• "Future Rights" means jointly and severally all of those rights (statutory and otherwise) comprised in the Intellectual Property Rights which may arise, be created, be granted or acquired in any way whatsoever in the future in respect of the Software;
• "Improvements" means any improvement, modification, enhancement, derivative, application or use of the Intellectual Property Rights conceived, created or arising during or subsequent to Your access to the Software including all Future Rights ;
• "Intellectual Property Rights" means:
  1. jointly and severally any rights as they relate to the confidential information, the copyright, the design rights, the trademark rights, the patent rights, the eligible layout rights, the Improvements, and the Future Rights;
  2. all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic field; and
  3. any application or right to apply for registration of any of the rights referred to in the subclause (a).
• "Licence" means the right to use the Software granted by NovaMind under this Agreement;
• "Reseller" means any party appointed by NovaMind to resell and distribute the Software on its behalf;
• "Software" means the items, units or modules of software supplied with this Agreement including the contents of the files, disk(s) and CD Roms or other media and:
  1. any other software that the parties agree from time to time will be subject to this Agreement; and
  2. any additional Module requested from time to time by You;
• "Specifications" means NovaMind's then current published specifications for the Software at the date You purchase the Software;
• "NovaMind" means NovaMind Software Pty Ltd (ACN 104 793 580) and its successors, administrators and assignees;
• "Upgrades" means any new software that delivers enhanced or new functionality to the Software provided to You by NovaMind;
• "User Manual" means the operating manuals and other documentation which are supplied with the Software.

1.2 Interpretation

In the interpretation of this Agreement, unless the context or subject matter otherwise require:

1. singular includes plural and vice versa;
2. any gender includes every gender;
3. a reference to a person includes corporations, trusts, associations, partnerships, a Government Authority, and other legal entities, and where necessary, include successor bodies;
4. references to writing include printing, typing, facsimile and other means of representing or reproducing words, figures, drawings or symbols in a visible and tangible form, in English or any other language;
5. references to signature and signing include due execution of a document by a corporation or other relevant entity;
6. references to months mean calendar months;
7. references to statutes include statutes amending, consolidating or replacing the statutes referred to and all regulations, orders-in-council, rules, by-laws and ordinances made under those statutes;
8. references to sections of statutes or terms defined in statutes refer to corresponding sections or defined terms in amended, consolidated or replacement statutes;
9. headings and the table of contents are used for convenience only and are to be disregarded in the interpretation of this Agreement;
10. where any word or phrase is given a defined meaning, another grammatical form of that word or phrase has a corresponding meaning;
11. each paragraph or sub-paragraph in a list is to be read independently from the others in the list;
12. a reference to an agreement or document is to that agreement or document as amended, novated, supplemented or replaced from time to time; and
13. a reference to a party includes that party's executors, administrators, substitutes, successors and permitted assigns.

2. LICENCE

2.1 Grant of Rights

NovaMind grants to You a personal, non-exclusive, non-transferable Licence to use the Software in its object (machine-executable) code only with the Computer which shall commence on the date You have paid for and Activated the Software and shall continue until it is terminated by either party in accordance with the provisions of this Agreement.

2.2 New Upgrades

You acknowledge and agree the right to use any new Upgrade acquired after the initial purchase of the Software will when supplied be governed by the terms of this Agreement.

2.3 Back Up

You may make one (1) back up copy of the Software providing Your back up copy is not installed or used on any Computer. You may not transfer the rights to a back up copy unless You transfer all the rights in the Software as provided under clause 12.5.

3. SOFTWARE

3.1 Your Responsibilities

NovaMind shall not be responsible for any failure of the Software where such failure is caused or contributed to by unauthorised interference, alteration, modification or changes to the Software by You. You agree not to make any attempt or authorise any attempt to:

1. decompile, reverse engineer, dissemble or otherwise derive the source code of the Software;
2. modify, enhance, translate, alter, upgrade or create derivative works of the Software;
3. strip out or alter any trade mark, service right, copyright, patent, trade secret or other Intellectual Property Rights notice, legend, warning, marking or indication on any component of the Software.

Further You covenant and agree:

1. to ensure Your employees, subcontractors and other agents who have authorised access to the Software are made aware of the terms of this License;
2. to not provide or otherwise make available the Software in any form to any person other than those parties refereed to in paragraph (i) without written consent of NovaMind.

3.2 Software Supplied "As Is"

EXCEPT AS EXPRESSLY PROVIDED FOR SOFTWARE IS PROVIDED ON AN "AS IS" BASIS WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION, WHETHER EXPRESS OR IMPLIED, STATUTORY, OUT OF A COURSE OF DEALING OR USAGE, TRADE OR OTHERWISE INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE. NOVAMIND DOES NOT WARRANT THAT THE SOFTWARE WILL BE FREE OF DEFECT, UNINTERRUPTED, ACCURATE, COMPLETE, CURRENT, STABLE, BUG FREE, ERROR FREE OR AVAILABLE AT ANY TIME IN RESPECT OF ITS OPERATION ON THE COMPUTER. NOVAMIND SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER AS A CONSEQUENCE OF ANY DATA, LOST, DESTROYED OR DAMAGED BY THE SOFTWARE.

3.3 Hardware

You shall provide and maintain all necessary terminal equipment, telecommunications services and the Computer network required to access or use the Software.

3.4 Third Parties

You shall not attempt to sell, resell, license or in any manner provide third parties with any right of access or use of the Software except as provided for in this Agreement without NovaMind's prior written consent.

4. SOFTWARE AND USER MANUAL

4.1 User Manual

You will receive NovaMind's then current User Manual with the Software. If You require any further copies of the User Manual at any stage, they will be provided at NovaMind's then current price or charge for the User Manual.

5. INSTALLATION AND USE ON OTHER EQUIPMENT

You may only use the Software on Your Computer, up to the Authorised Hardware Limit.

6. UPDATE

If the Software is an update to a previous version of the Software You must possess a valid license to use such previous version in order to use such updates. All updates are provided to You on a license exchange basis. You agree that by using an update You voluntarily terminate Your right to use any previous version of the Software. As an exception, You may continue to use previous versions of the Software on Your computer after You use the update to assist You in the transition to the update provided that:

1. the update and previous versions are installed on the same computer; and
2. the previous versions or copies of it are not transferred to another party or computer unless all copies of the update are transferred to such party or computer and You acknowledge any obligation NovaMind may have to support the previous versions of the Software (if any) and upon availability of the update.

7. THIRD PARTY SOFTWARE

7.1 Third Party License

You agree to be responsible for ensuring You have obtained and comply with all the terms and conditions of any third party software product (not supplied by NovaMind or its Reseller) ("Third Party Vendor") You use or operate in conjunction with the Software.

7.2 Enabling the Third Party Software

NovaMind will only enable the use of the third party software with the Software upon notice from You that You have complied with the provisions of subclause 7.1. NovaMind has the right to impose reasonable conditions and to request a reasonable fee before providing any necessary information to enable the use of the Software with any third party product. Any such information supplied by NovaMind to You may only be used for the permitted purpose and may not be disclosed to any third party or used to create any software which is substantially similar to the Software.

7.3 Indemnity

You hereby indemnify, save and hold harmless NovaMind from any Claim made against it by a Third Party Vendor arising directly or indirectly from any breach by You of Your obligations pursuant to clause 7.

8. INTELLECTUAL PROPERTY RIGHTS

8.1 Acknowledgment

You acknowledge the Software and User Manual are subject to copyright. You shall not during, or any time after the expiry or termination of this Agreement permit any act which infringes that copyright without limiting the generality of the foregoing, You specifically acknowledge that You may not reproduce or copy the Software except as otherwise expressly authorised by this Agreement. The User Manual may not be copied under circumstances.

8.2 Ownership

As between NovaMind and You, You acknowledge and agree NovaMind is the owner of the Intellectual Property Rights in respect of the Software and You by virtue of this Agreement derives only the right to use the Software.

8.3 Notification of Infringement

You shall notify NovaMind as soon as practicable of any infringement, suspected infringement or alleged infringement by the Software of the Intellectual Property Rights of any person.

8.4 Defence of Infringement Claims

NovaMind may (at its discretion) conduct the defence of any Claim against You or any associated company of You or any of their respective personnel alleging such infringement. You shall, if requested, provide NovaMind with reasonable assistance in conducting the defence of any such Claim.

8.5 NovaMind's Options

If it is determined by a court or tribunal of competent jurisdiction, or if it is agreed between the parties to the dispute, that an infringement of any Intellectual Property Rights of any person has occurred on grounds in any way related to the use of the Software, then within seven (7) days of such determination or agreement, NovaMind at its discretion and at its own risk and expense shall either:

1. modify the Software so that such infringement, defect or inadequacy is removed; or
2. procure for You the right to continue to use the Software.

8.6 Refund

If NovaMind is unable or unwilling to remedy an infringement as set out in clauses 8.5 then NovaMind will refund to You the purchase price for the Software, less a deduction for Your use of the Software on a pro rata basis PROVIDING HOWEVER no reimbursement of the Price will be paid after twelve (12) months from the date You either paid for or commenced using the Software.

9. GST

9.1 All amounts are GST exclusive amounts

All amounts to be paid by You to NovaMind for the Software expressed or described in this Agreement are GST exclusive amounts.

9.2 All amounts to be increased for any GST

Subject to clause 9, if any GST (within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 as amended from time to time, 'GST') is payable by any party ('NovaMind') in respect of the supply of any goods, services, real property or any other things to another party ('Recipient'), then the amount expressed or described in this Agreement ('Original Amount') is to be increased so that NovaMind receives an amount ('Increased Amount') which, after subtracting the GST liability of NovaMind on that Increased Amount, results in NovaMind retaining the Original Amount after payment of that GST liability.

9.3 NovaMind to assist Recipient

NovaMind will do all things reasonably available to it to assist the Recipient to claim on a timely basis any input tax credits (if any) the Recipient may be entitled to claim for any goods, services, or rights granted by or acquired from NovaMind. This includes NovaMind maintaining its registered status for GST purposes, and issuing tax invoices for supplies made under this Agreement on a timely basis as reasonably requested by the Recipient.

9.4 Amounts to be reduced for benefits of GST related reforms

NovaMind acknowledges that under the GST Law NovaMind is required, from the date the GST is imposed, and at all times that a GST related tax reform takes effect, to reduce the consideration payable by the Recipient to the extent that the cost to NovaMind of supplying any goods or services or rights granted or other things under this Agreement is reduced.

10. LIMITATION OF LIABILITY

10.1 NOVAMIND'S LIMITATION OF LIABILITY

NEITHER NOVAMIND NOR ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS WILL BE LIABLE TO YOU OR ANY OTHER INDIVIDUAL OR ENTITY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR THE BREACH OF IT BY NOVAMIND, INCLUDING, WITHOUT LIMITATION, DAMAGES OR COSTS INCURRED AS A RESULT OF LOSS OF TIME, LOSS OF SAVINGS, LOSS OF PROPERTY, LOSS OF DATA, OR LOSS OF PROFITS AND REGARDLESS OF WHETHER NOVAMIND HAS BEEN APPRISED OR NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR CLAIMS OCCURRING OR WHETHER SUCH CLAIMS OR DAMAGES ARE BASED, OR REMEDIES ARE SOUGHT, IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, PRODUCTS LIABILITY OR OTHERWISE;

10.2 IMPLIED TERMS

NOVAMIND GIVES NO WARRANTIES TO YOU EXPRESS OR IMPLIED IN RESPECT OF GOODS OR SERVICES SUPPLIED TO YOU PURSUANT TO THIS AGREEMENT AND ALL SUCH WARRANTIES ARE EXCLUDED, SUBJECT TO CLAUSE 10.3.

10.3 TRADE PRACTICES ACT

WHERE LEGISLATION IMPLIES IN THIS AGREEMENT ANY CONDITION OR WARRANTY, AND THAT LEGISLATION AVOIDS OR PROHIBITS PROVISIONS IN A CONTRACT EXCLUDING OR MODIFYING THE APPLICATION OF ALL EXERCISE OF ALL LIABILITY UNDER SUCH CONDITION OF WARRANTY, THE CONDITION OR WARRANTY SHALL BE DEEMED TO BE INCLUDED IN THIS AGREEMENT. HOWEVER, THE LIABILITY OF NOVAMIND FOR ANY BREACH OF SUCH CONDITION OR WARRANTY SHALL BE LIMITED, AT THE OPTION OF NOVAMIND TO ONE OR MORE OF THE FOLLOWING:

1. IF THE BREACH RELATES TO GOODS:
   1. THE REPLACEMENT OF THE GOODS OR A REFUND ON A PRO RATA BASIS;
   2. THE REPAIR OF SUCH GOODS;
   3. THE PAYMENT OF THE COST OF REPLACING THE GOODS OR OF ACQUIRING EQUIVALENT GOODS; OR
   4. THE PAYMENT OF THE COST OF HAVING THE GOODS REPAIRED; AND
2. IF THE BREACH RELATES TO SERVICES:
   1. THE SUPPLYING OF THE SERVICES AGAIN; OR
   2. THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.

10.4 GOOD DATA PROCESSING

YOU ACKNOWLEDGE AND AGREE THE GOOD DATA PROCESSING PROCEDURES DICTATE THAT ANY SOFTWARE BE THOROUGHLY TESTED WITH NON CRITICAL DATA BEFORE IMPLEMENTING IT IN A PRODUCTION ENVIRONMENT. YOU UNDERTAKE TO IMPLEMENT SUCH PROCEDURES BEFORE USING THE SOFTWARE. NOVAMIND SHALL UNDER NO CIRCUMSTANCES BE LIABLE FOR THE CONSEQUENCES OF ANY FAILURE BY YOU TO COMPLY WITH THIS PRACTICE. IT IS YOUR RESPONSIBILITY TO HAVE ADEQUATE BACK UP PROCEDURES TO PROTECT YOU FROM DATA LOSS. THIS CLAUSE SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT.

10.5 SURVIVAL

THE PROVISIONS OF THIS CLAUSE 10 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.

11. TERM OF LICENSE

11.1 Limitations on Term

This License commences upon payment of the purchase price for the Software and is granted to You in perpetuity, but may be terminated in the following circumstances:

1. if You are in breach of any term of this Agreement;
2. if You, being a corporation, become the subject of insolvency proceedings;
3. You, being a firm or partnership are dissolved; or
4. You destroy the program and the User Manual and any other documentation for any reason.

11.2 Rights on Termination

Upon termination You or Your representatives shall destroy any remaining copies of the program, Software, User Manual and any other documentation, or return or dispose of such material in a manner directed by NovaMind.

11.3 Rights Survive

Termination pursuant to this clause shall not effect any rights or remedies which NovaMind may otherwise have at law.

12. GENERAL PROVISIONS

12.1 Confidentiality

Each party agrees:

1. to treat all information which comes to its knowledge or into its possession in connection with this Agreement or the Software as strictly private and confidential; and
2. not to divulge that information or the existence of this Agreement to any third party, other than to the party's consultants or advisers who have a need to know; and
3. not to use that information in any way for profit, unless and until it becomes public knowledge otherwise than by that party's own disclosure.

12.2 Security

You shall be solely responsible for the supervision, management and control of the Software. Throughout the term of this Agreement You will use its best endeavours to ensure that the Software is:

1. not removed from the Computer; and
2. protected at all times from unauthorised access or use by a third party or misuse, damage or destruction by any person.

12.3 Force Majeure

Notwithstanding any other provision in this Agreement, non-performance by either party of any of its obligations (other than to pay money) shall be excused during the time and to the extent that such performance is prevented in whole or in part by Force Majeure.

12.4 No Waiver

No failure, delay or indulgence by any party in exercising any power or right conferred on that party by this Agreement shall operate as a waiver of such power or right. Nor shall a single exercise of any such power or right preclude further exercises of that power or right or the exercise of any other power or right under this Agreement.

12.5 No Assignment

You shall not transfer or assign or deal in any manner with the benefit or burden of this Agreement which is personal to You and cannot be assigned. The rights and obligations of NovaMind pursuant to this Agreement can be assigned by them to a third party without Your prior consent or approval.

12.6 Severability

If any part of this Agreement is held by any court or administrative body of competent jurisdiction to be illegal, void or unenforceable, such determination shall not impair the enforceability of the remaining parts of this Agreement which shall remain in full force.

12.7 Governing Law

This Agreement shall be governed by and construed in accordance with, the laws of Queensland. The parties submit to the exclusive jurisdiction of the Queensland courts in relation to all disputes arising out of or in connection with this Agreement.

Should you have any questions concerning this AGREEMENT, or if you desire to contact NovaMind for any reason, please use the contact information on the NovaMind web site.