In this Agreement:
Affiliate means, with respect to K2 Tech, any entity that controls or is controlled by such party, or is under common control with K2 Tech. For purposes of this definition, an entity shall be deemed to control another entity if it owns or controls, directly or indirectly, at least 50% of the voting equity of another entity (or other comparable interest for an entity other than a corporation).
Authorised User means the total number of persons who the Licensee has assigned an ID and Password provided by K2 Tech that enables them access to the Product.
Bankruptcy Act means the Bankruptcy Act 1966 (Cth).
Business Day or Business Days means a day on which banks are open for retail banking, other than a Saturday, Sunday or public holiday, in Brisbane,Australia.
Claim includes, in relation to a person, a demand, claim, action or proceeding made or brought by or against the person, however arising and whether present, unascertained, immediate, future or contingent.
Commencement Date means:
(a) the date specified in the Item C of the Reference Schedule as being the date from which this Agreement takes effect, or
(b) if no such date is specified, the date on which this Agreement is executed by both parties.
Commercial Purpose means to distribute, transfer, sell, sub-license or pass possession of the Product (in whole or in part) for the purpose of direct commercial benefit or gain by the Licensee.
Corporations Act means the Corporations Act 2001 (Cth).
Coverage Areas means the geographical areas specified in Item F of the Reference Schedule that will be included in the Licensee's use of the Product (using data from Third Party Providers).
Derivative Work means any new work created by or for the Licensee that includes or embeds all or part of the Product.
Fault means any fault, failure, error or defect which prevents the Licensee from accessing the Product, other than where access is prevented due to a planned outage, because of an unforeseeable event beyond K2 Tech' reasonable control or any conduct or activity undertaken by the Licensee, the Licensee's employees or agents.
Fees means the fees payable in accordance with clause 5 that are:
(a) specified in Item D of the Reference Schedule, or
(b) otherwise agreed to in writing between K2 Tech and the Licensee.
GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended.
ID means identification username issued by K2 Tech to the Licensee and/or Authorised User to access the Product.
Insolvency Event means any of the following events occurring in relation to a party under this Agreement:
(a) if an application is filed for the winding up of the party ( Winding Up Application) and the Winding Up Application is not dismissed or withdrawn within 10 Business Days of the application being filed,
(b) if the directors of the party passes a resolution for its winding up,
(c) if a receiver, receiver and manager, controller (as defined in section 9 of the Corporations Act), or a similar person is appointed to any property of the party,
(d) if a provisional liquidator is appointed to the party,
(e) if the party:
(i) advises the other party that it is financially unable to proceed with or meet any of its obligations under the Agreement,
(ii) without the written consent of the other party, suspends payment of its debt other than as the result of a failure to pay a debt which is subject to a genuine dispute,
(iii) is or states that it is unable to pay its debts as and when they fall due and payable, or
(iv) is taken to fail to comply with a statutory demand under section 459F of the Corporations Act,
(f) if the party:
(i) commits an act of bankruptcy under section 40 of the Bankruptcy Act, or
(ii) is made bankrupt.
Intellectual Property Rights includes all industrial and intellectual property rights throughout the world including copyright, moral rights, trademarks, patents, rights to protect confidential information and any similar rights.
Invoice means the document issued by K2 Tech (electronic or otherwise) after the Licensee places an order for the Products.
Late Payment Fee means a fee, as notified by K2 Tech to the Licensee from time to time, corresponding to the costs incurred by K2 Tech (including, without limitation, administrative and other costs) in recovering any payment not made by the Licensee on the due or scheduled date for payment.
License means the license granted in clause 2.1.
Operational Hours means 9am to 5pm eastern standard time.
Password means the password issued by K2 Tech to the Licensee and/or Authorised User to access the Product.
Payment Method means a current, valid, accepted method of payment provided in Item E of the Reference Schedule (which K2 Tech may accept from time to time).
Permitted Purpose means the use of Products by the Licensee in the Licensee's ordinary business and at all times excludes any:
(a) Commercial Purpose,
(b) Unlawful Purpose,
(c) integration or attempt to integrate the Product in an internal system of the Licensee or of a third party without K2 Tech' consent, and
(d) redistribution or copying of files, images, photographs or making such files, images or photographs available in any medium or manner that is contained in the Products to any third party (except as expressly permitted under this Agreement).
Product means the mapping technology developed by K2 Tech for assessing the indicative overlay mapping constraint to residential, industrial, commercial and other types of property development.
Reference Schedule means the information schedule provided at the beginning of this Agreement.
Special Conditions means the additional terms and conditions (if any) set out in Item F of the Reference Schedule.
Subscription Period means the period that the Licensee subscribes to the Product, as specified in Item C of the Reference Schedule.
Third Party Providers means third party providers of products and services to K2 Tech.
Unlawful Purpose means any unlawful purpose, including but not limited to stalking, harassing or intimidating any person or engaging in misleading or deceptive conduct.
Website means all pages and sub-sites available within the K2 Tech.com domain.
2. grant of license to use product
Subject to the terms of this Agreement and payment of the Fees by the Licensee, K2 Tech grants to the Licensee a limited, non-exclusive, non-transferrable license for the Subscription Period to use the Product for the Coverage Areas for the Permitted Purpose.
2.2 Authorised Users
(a) The Product is only to be used by the total number of Authorised Users.
(b) The Licensee shall implement reasonable controls to ensure that it does not exceed the number of Authorised Users. If the Licensee exceeds the total number of Authorised Users, the Licensee will be in breach of this Agreement.
(a) Upon the expiration of the initial Subscription Period, this Agreement (subject to any amendments to this Agreement required by K2 Tech) shall be renewed automatically for a successive Subscription Period that is equivalent in duration to the initial Subscription Period (each a Renewal Term) unless terminated by either party by providing at least 30 days written notice of its intention not to renew this Agreement prior to the expiry of the initial Subscription Period or any current Renewal Term.
(b) The Licensee will receive notice of any pricing change or changes to the terms of this Agreement prior to the commencement of each Renewal Term.
2.4 Replacement Product
(a) K2 Tech may from time to time supply the Licensee with a replacement Product of no lesser quality than the previously supplied Product at its absolute discretion.
(b) If requested by K2 Tech, the Licensee must stop using any previously supplied Product and use the replacement Product from date of delivery from K2 Tech.
2.5 Acknowledge K2 Tech source
(a) The Licensee must expressly acknowledge K2 Tech, in a reasonably prominent manner, as the source of any Product or Derivative Works that the Licensee uses, copies, modifies or distributes.
(b) Unless otherwise permitted in writing, the Licensee must not remove or cause to be removed any K2 Tech logo, watermark or other K2 Tech attribution in any Product or Derivative Works.
Subject to clause 13, if a Product is not available for a period of three consecutive days the Subscription Period will be extended by the period of unavailability.
3. RESTRICTIONS ON RIGHT TO USE the PRODUCT
3.1 Permitted Purpose
The Products must only be used for the Permitted Purpose.
3.2 No right to distribute, transfer, resell, assign or sublicense
(a) This License is granted only to the Licensee.
(b) The Licensee must not distribute, transfer, resell, assign, rent, lease or sublicense any Product or any of the Licensee's rights under this License without K2 Tech' prior written consent.
3.3 No third party access
Unless otherwise provided in this Agreement, the Licensee must not make the Product available in any medium or manner to any third party (including the Licensee's subsidiaries and affiliates) without K2 Tech' prior written consent.
3.4 Employees and contractors
(a) The Licensee may make the Product available to any employee or contractor of the Licensee, on the provision that the:
(i) the employee or contractor complies with the terms of the Agreement as if they were a party to it, and
(ii) Licensee does not exceed the number of Authorised Users.
(b) The Licensee is responsible and liable for any Authorised User who uses the Licensee's account access details or uses the Product made available to the Licensee.
(c) The Licensee will be in breach of this Agreement if the Licensee exceeds the number of Authorised Users and will be liable for any additional fees that become payable as a result.
3.5 Limits on use of Website
In the Licensee's use of the Website, the Licensee must not (without the prior written consent of K2 Tech):
(a) provide a link to another URL,
(b) upload content or other information to the Website,
(c) do anything to damage, interfere or disrupt access to the Website or do anything which might impair its functionality,
(d) use the Website in any way to send unsolicited (commercial or otherwise) e-mail or any material for marketing or publicity purposes, or any similar abuse of either,
(e) publish, post, distribute, disseminate or otherwise transmit, defamatory, offensive, infringing, obscene, indecent or other unlawful or objectionable or confidential material or information,
(f) make available, upload or distribute by any means any material or files that contain any viruses, bugs, corrupt data, "trojan horses", "worms" or any other harmful software,
(g) remove any content or information from the Website, other than that permitted under the terms of this License,
(h) falsify the true ownership of a Product or other material or information made available via the Website,
(i) obtain or attempt to obtain unauthorised access, through whatever means, to the Website,
(j) use the Website other than in accordance with the Agreement,
(k) attempt any of the above acts or engage, encourage or permit another person to do any of the above acts, or
(l) provide or allow access which exceeds the total number of Authorised Users in connection with use of the Product.
If the Licensee breaches any of provision in this clause 3, K2 Tech reserves its rights to:
(a) terminate the Agreement in accordance with clause 7.2,
(b) restrict the Licensee's access to the Product, and/or
(c) take any other steps available to it at law.
4. LICENSEE'S ACCESS TO the PRODUCT AND SERVICES
4.1 ID and Password
(a) Any ID and Password issued by K2 Tech to an Authorised User is personal and confidential to Authorised User they were issued to.
(b) If K2 Tech suspects that any ID or Password is being used by an unauthorised user, by a different Authorised User to the person whom it was issued to, K2 Tech may:
(i) cancel that Password/ID,
(ii) restrict the Licensee's access to the Product,
(iii) immediately cancel or suspend the Licensee's access to the Product,
(iv) require the Licensee to pay for any additional charges as notified by K2 Tech, or
(v) exercise any other right available to K2 Tech under the terms of this Agreement.
(a) K2 Tech will use reasonable efforts to ensure that the Website remains available 24 hours per day but cannot guarantee that this will be the case at all times.
(b) K2 Tech agrees that, wherever possible, all planned maintenance will be done outside of normal Operational Hours to ensure optimal uptime of the Website.
(c) When K2 Tech becomes aware of any Fault, K2 Tech will use reasonable efforts to:
(i) allocate such resources as may be necessary to remedy the Fault, and
(ii) otherwise take all reasonable steps to remedy the Fault so as to minimise any disruption to the Licensee's use of the Product.
4.3 Unauthorised Use
(a) Licensee shall take reasonable steps to prevent unauthorised access to the License, including (without limitation):
(i) protecting the Licensee's ID and Password, and
(ii) logging out after each use of the Product.
(b) The Licensee must notify K2 Tech immediately of any known or suspected unauthorised use of the License or breach of its security and shall use the Licensee's best efforts to stop and remedy the breach.
(a) During the Subscription Period and for two years following the termination of this Agreement, the Licensee shall:
(i) maintain accurate and complete records regarding its use of the Product, and
(ii) permit K2 Tech (or its auditors) access to the business premises, books and records of the Licensee pertaining to the Licensee's use of the Product.
(b) K2 Tech will give at least 30 days' prior written notice of an audit and will not conduct an audit more than once per calendar year unless non-compliance findings are noted and in which case the audit period can be expanded.
4.5 Audit Findings
(a) If an audit results in findings of non-compliance, K2 Tech may, at its discretion:
(i) invoice any additional license fees due based on the standard K2 Tech Fees,
(ii) recover the reasonable cost of the audit if additional Fees exceed 5% of the Fees paid during the audit period, and
(iii) terminate this Agreement in accordance with clause 7.2.
(b) Licensee must pay all invoices issued under this clause 4.5 within 30 days' following the date of invoice.
The Fees payable by the Licensee for the License are set out in Item D of the Reference Schedule.
Unless otherwise agreed to in writing by K2 Tech, the Fees are payable from the Commencement Date by the Licensee to K2 Tech in the manner as set out in Item D of the Reference Schedule.
5.3 No cancellation
Subject to clause 5.4, all Fees are non-cancellable and non-refundable except as expressly set out in this Agreement.
5.4 Refund of Fees
If the Licensee is not in breach of this Agreement, and K2 Tech elects to terminate this Agreement under clause 7.3, K2 Tech will refund the Licensee any pre-paid fees relating to the portion of Subscription Period remaining as at the date of termination.
Unless otherwise specified, all amounts payable under or in connection with this Agreement are exclusive of GST. The Licensee must pay to K2 Tech, in addition to the GST exclusive Fee, an amount equal to any GST paid or payable in respect of the taxable supply under this Agreement.
5.6 Late Payment
If a scheduled Fee payment is not made in full for any reason, the Licensee gives K2 Tech permission to:
(a) charge a Late Payment Fee, and/or
(b) immediately limit or terminate access to the Product provided under the Licensee's License.
If the Licensee fails to pay K2 Tech the Fees in full in accordance with the terms of this Agreement and the Invoice, all Fees (whether accrued or not) will become immediately due and payable.
5.8 Variation of Fees
(a) The Fees may only be varied if:
(i) K2 Tech and the Licensee agree in writing to vary the Fee at the end of the Subscription Period and in respect of the Fee payable during the Renewal Term,
(ii) the Licensee requests K2 Tech to provide additional ID and Passwords that can be assigned to potential Authorised Users during the Subscription Period, or
(iii) the Licensee requests additional Coverage Areas during the Subscription Period.
6. THE LICENSEE'S WARRANTIES
The Licensee warrants that:
(a) any information the Licensee supplies to K2 Tech in respect of the Agreement is complete and correct,
(b) it will keep K2 Tech informed of any changes to the Licensee's information, including any change to the Licensee's contact details, or the details of a credit card used for payment,
(c) the Licensee will immediately notify K2 Tech of any usage of the Product outside the Permitted Purpose,
(d) to provide K2 Tech with any information reasonably requested by K2 Tech,
(e) the Licensee has the power to enter into this Agreement and to perform the obligations under it, and
(f) the Licensee has and will comply with all relevant laws relating to the Licensee's use of the:
(ii) Product, and
7. TERMINATION AND EXPIRY
7.1 Initial Subscription Period
This Agreement commences on the Commencement Date and will continue until expiry of the Subscription Period unless:
(a) terminated earlier in accordance with the terms of this Agreement, or
(b) renewed in accordance with clause 2.3.
7.2 Termination by Either Party
Either party may terminate this Agreement with immediate effect by giving notice to the other party if:
(a) the other party breaches any of its obligation under this Agreement capable of remedy and fails to remedy that breach within 14 days after receiving notice requiring it to do so,
(b) the other party breaches any of its obligations under this Agreement incapable of remedy, or
(c) the other party suffers an Insolvency Event.
7.3 Termination by K2 Tech
Regardless of anything else in the Agreement but subject to clause 5.4, K2 Tech has the right, in its absolute discretion and upon giving the Licensee 10 Business Days' notice, to terminate the Agreement and the License.
If the Agreement is terminated under clauses 7.2 or 7.3 or expires at the end of the Subscription Period:
(a) the License immediately terminates and the Product will no longer be available to the Licensee, and
(b) subject to clause 7.3, the Licensee and the Authorised Users are not permitted to use any Product for any purpose.
(a) K2 Tech reserves all rights following termination of this Agreement, including any rights available to K2 Tech to collect any outstanding Fees which may be owed by the Licensee.
(b) The Licensee will be liable for any costs incurred by K2 Tech in enforcing its rights following termination of this Agreement.
7.6 Continuing obligations
After expiry or termination of the Agreement or a License, clauses 2.5, 3, 8, 9, 10, 11, 14, 15 and 16 will still be binding on the Licensee in relation to the Product.
8. INTELLECTUAL PROPERTY
(a) Unless otherwise indicated, the Website, the Product and all associated Intellectual Property Rights, data, information and software are owned by K2 Tech and are protected by copyright, moral rights, trademark and other laws relating to the protection of intellectual property.
(b) K2 Tech reserves all of its Intellectual Property Rights.
(c) Except for the limited License granted to the Licensee in clause 2.1, no ownership or Intellectual Property Rights in the Website or any Product will pass to the Licensee.
(a) The K2 Tech trademarks and all associated Intellectual Property Rights are owned by K2 Tech.
(b) Nothing in the Agreement confers upon the Licensee any rights to use or modify any of K2 Tech's trademarks, except that K2 Tech grants the Licensee a royalty free, limited non-exclusive, non-transferrable, non-sublicensable license to use K2 Tech trademarks to the extent necessary to comply with the Licensee's obligations under the Agreement.
8.3 Derivative Works
(a) Subject to compliance with all other terms of this Agreement, the Licensee is granted a non-exclusive right to produce and use Derivative Works for a Permitted Purpose.
(b) Unless otherwise notified to the Licensee by K2 Tech, the Licensee may continue using Derivative Works following termination or expiry of this Agreement.
(c) The Licensee and K2 Tech will jointly own all rights in and to the Product embedded in a Derivative Work.
9. THIRD PARTY PROVIDERS
9.1 Licensee Acknowledgement
(a) K2 Tech engages Third Party Providers in order to provide the Product.
(b) The Licensee acknowledges that the provision of the Product is subject to, and dependent upon, adequate delivery of products and services by the Third Party Providers.
(c) The Licensee agrees to comply with all requirements and restrictions that Third Party Providers may impose on Licensee directly or indirectly by imposition on K2 Tech, in relation to their respective products and/or services, at the time of, or subsequent to, the Agreement.
9.2 Liability of K2 Tech
In accordance with clause 10 of the Agreement, K2 Tech' liability is reduced to the extent that loss or damage of any kind is caused or contributed to, by Third Party Providers.
10. WARRANTY AND LIABILITY
K2 Tech agrees to use industry standard GPS to ensure captured imagery has accurate geographical positioning.
10.2 Disclaimer of Warranties
(a) Other than as set forth in clause 10.1, the website and the product are provided on an ",as is", and ",as available", basis, without any warranties of any kind to the fullest extent permitted by law.
(b) K2 Tech and its content providers, agents and affiliates expressly disclaim any and all warranties, whether express, statutory or implied, including, but not limited to, any implied warranties of merchantability, title, fitness for a particular purpose, non-infringement, and course of dealing or performance.
10.3 No Representations
(a) While K2 Tech uses reasonable efforts to ensure the accuracy, correctness and reliability of the Product and the Website, K2 Tech makes no representations or warranties as to the accuracy, correctness or reliability of the Product or content contained on the Website.
(b) The Product and the Website are subject to errors, omissions, inaccuracies and distortions and K2 Tech will not be responsible for, or liable for any Claims made by or arising out of, any person or entity seeking to rely on any of the product or the website.
10.4 Limit of Liability
K2 Tech' liability for:
(a) a breach of a warranty under clause 10.1, or
(b) a breach of a warranty which is implied or imposed in relation to the License under legislation and cannot be excluded,
will be limited to, at K2 Tech' option, replacing or repairing the Product, or paying the cost of replacing or repairing the Product.
10.5 No Liability for Claims
(a) To the extent permitted by law, in no event will K2 Tech, its content providers, agents or affiliates be liable for any Claims of any kind arising from or connected with the use of the Website or the Product, or the unavailability of the same, including but not limited to loss of use, loss of profits or loss of data, and direct, indirect, incidental, punitive and consequential damages, whether in contract, tort (including but not limited to negligence) or otherwise.
(b) The Licensee is responsible for the entire cost of all servicing, repair or correction required due to the Licensee's use of the Website or the Product. This exclusion applies, without limitation, to any Claims caused by or resulting from reliance by a user on any information obtained from K2 Tech.
10.6 Aggregate limit
In no event will the aggregate liability of K2 Tech, whether in contract, warranty, tort (including negligence, whether active, passive or imputed), product liability, strict liability or other theory, arising out of or relating to the use of the product exceed any compensation or Fee the Licensee has paid, if any, to K2 Tech for access to or use of the Product over the 12 month period prior to the alleged default, breach or event giving rise to the liability.
10.7 Third Party Providers
Without limiting any of the above to the fullest extent permitted by applicable law, K2 Tech will not be liable for any loss, damage, or cost of any kind, which is caused, or contributed to, by a Third Party Provider.
(a) The Licensee agrees to indemnify K2 Tech and its directors, officer, employees, agents and subcontractors, from and against any from and against any and all direct or indirect Claims, damages, losses, liabilities, expenses and costs (including reasonable attorney's fees and costs) arising from or out of:
(i) the Licensee's actual or alleged breach of any provisions of this Agreement,
(ii) the Licensee's use of the Product for any purpose, and
(iii) the Licensee's use of, or any third party's use of, or inability to use, any Derivative Works, including without limitation, any output from the Derivative Works.
(b) K2 Tech will provide the Licensee with notice of any such Claim or allegation, and K2 Tech has the right to participate in the defence of any such Claim at its expense.
11. COPYRIGHT COMPLAINTS
Subject to clause 10, if any third party brings a Claim against the Licensee alleging that the Licensee's use of the Product in accordance with this License infringes their copyright ( Infringement Claim), K2 Tech will defend the Licensee against the Claim and pay any settlement to which K2 Tech consents or final court-awarded damages for which the Licensee is liable.
11.2 Licensee's obligations for third party Claims
If any third party bring a Claim against the Licensee in relation to the Product, the Licensee must:
(a) promptly notify K2 Tech of any such Infringement Claim,
(b) not make any admissions in relation to the Infringement Claim without K2 Tech' prior written consent,
(c) permit K2 Tech to conduct the defence of the Infringement Claim including all negotiations for settlement, and
(d) provide K2 Tech with any assistance reasonably requested to allow K2 Tech to defend the Infringement Claim.
11.3 Limit of Liability
(a) K2 Tech will have no liability for any Infringement Claim that arises from any:
(i) use of the Product in violation of this Agreement,
(ii) modification of the Product by anyone other than K2 Tech or a party authorised by K2 Tech in writing by K2 Tech to modify the portion of the Product applicable to the Infringement Claim,
(iii) third-party Product, services, hardware, software or other materials, or a combination of these with the Product would not be infringing without this combination, or
(iv) if the Licensee fails to comply with clause 11.2.
(b) To the maximum extent permitted by law, this clause 11 sets out K2 Tech' sole and exclusive liability, and the Licensee's sole and exclusive remedy, for any third party Infringement Claims brought against the Licensee in relation to an infringement of Intellectual Property Rights.
(b) By entering into this Agreement, the Licensee expressly consents to receiving by email direct marketing communications from K2 Tech.
(c) By entering into this Agreement, the Licensee acknowledges that personal information provided by the Licensee in the course of accessing the Product (including, without limitation, credit or debit card details provided by the Licensee for the purpose of paying K2 Tech) may be disclosed to and held by one or more of K2 Tech' third party suppliers and partners (including, without limitation, providers of payment processing services), and used by those third parties in connection with the supply of the Product.
(d) K2 Tech will have no liability whatsoever with respect to any personal information held by a third party in connection with the supply of the Product.
13. FORCE MAJEURE
13.1 Force Majeure Event
If a party is unable to perform or is delayed in performing an obligation under this Agreement (except for any obligation to pay money, including Fees) because of an event beyond that party's reasonable control (Force Majeure Event):
(a) that obligation is suspended but only so far and for so long as that party is affected by the Force Majeure Event, and
(b) the affected party will not be responsible for any loss or expense suffered or incurred by the other party as a result of, and to the extent that, the affected party is unable to perform or is delayed in performing its obligations under this Agreement because of the Force Majeure Event.
13.2 Notice of Force Majeure Event
If a Force Majeure Event occurs, the party affected by the Force Majeure Event must:
(a) promptly give the other party notice of the Force Majeure Event and an estimate of the non-performance and delay,
(b) take all reasonable steps to overcome the effects of the Force Majeure Event, and
(c) resume compliance as soon as practicable after the Force Majeure Event no longer affects it.
(a) The Product includes metadata and other confidential and proprietary information of K2 Tech (Confidential Information).
(b) The Licensee must not use any Confidential Information for any purpose not expressly permitted hereunder and will disclose Confidential Information only to its employees who have a need to know for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Licensee's duty hereunder.
(c) The Licensee will protect Confidential Information from unauthorised user, access, or disclosure in the same manner as it would protect its own confidential or proprietary information of similar nature and with no less than reasonable care.
(a) All notices and consents will be in writing and will be considered delivered and effective upon receipt (or when delivery is refused) when:
(i) personally delivered,
(ii) sent by registered post
(iii) sent by private courier (with signature required and all fees prepaid), or
(iv) sent by email with confirmation of transmission.
(b) Notices must be sent to the Licensee at the Licensee's address provided in Item B of the Reference Schedule.
(c) Notices must be sent to K2 Tech at K2 Tech' address provided in Item B of the Reference Schedule.
16. TECHNOLOGY EXPORT
The Licensee shall not
(a) permit any third party to access or use the Product in violation of any law or regulation, or
(b) export any software provided by K2 Tech or otherwise remove it from Australia except in compliance with all applicable laws and regulations.
17. MISCELLANEOUS TERMS
17.1 K2 Tech customer
The Licensee agrees that K2 Tech may identify the Licensee as an K2 Tech customer in K2 Tech business materials.
17.2 Special Conditions
(a) The Special Conditions form part of, and should be read in conjunction with, this Agreement.
(b) If there is any inconsistency between this Agreement and the Special Conditions, the Special Conditions prevail to the extent of the inconsistency.
17.3 Independent Contractors
(a) Nothing in this Agreement:
(i) constitutes a partnership between the parties, or
(ii) except as expressly provided, makes a party an agent of another party for any purpose.
(b) A party cannot in any way or for any purpose:
(i) bind another party, or
(ii) contract in the name of another party.
The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favour of or against either party by reason for authorship.
A right under this Agreement can only be waived by notice signed by the party or parties waiving the right. A party does not waive its rights under this Agreement because it grants an extension or forbearance to any other party. A waiver of a right on one or more occasions does not operate as a waiver of that right if that right arises again. The exercise of a right does not prevent any further exercise of that right or of any other right. If a party does not exercise a right or remedy fully or at a given time, the party may still exercise it later.
If the whole, or any part, of a provision of this Agreement is void, unenforceable or illegal in a jurisdiction, it is severed for that jurisdiction. The remainder of this Agreement has full force and effect, and the validity or enforceability of that provision in any other jurisdiction is not affected. This clause has no effect if the severance materially alters the nature or intended effect of this Agreement.
This Agreement can only be amended, supplemented, novated or replaced by another document signed by the parties.
A party may only dispose of, deal with, declare a trust over or otherwise create an interest in, its rights under this Agreement with the prior consent of each other party.
17.9 Entire Agreement
This Agreement embodies the entire agreement between the parties and supersedes all previous agreements, understandings, negotiations, warranties and representations on the subject matter of this Agreement. If this Agreement is inconsistent with any other agreement between any of the parties, this Agreement prevails to the extent of the inconsistency.
17.10 Counterparts and Facsimile Copies
This Agreement may be executed in counterparts. A counterpart may be a facsimile copy of this Agreement. All counterparts together are taken to constitute one instrument. A facsimile copy of this Agreement which has been executed by a party (Signatory) may be relied upon by a party to the same extent as if it was an original of this Agreement executed by the Signatory.
17.11 Governing Law
This Agreement is governed by the law in force in Queensland, Australia. Each party irrevocably submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in Queensland, and any court that may hear appeals from any of those courts for any proceeding in connection with this Agreement, and waives any right it may have to claim that those courts are an inconvenient forum.