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Software Licence and Supply Agreement

Part A: Software Licence Agreement

1. Terms of Use

a. The Software is owned by Bond Wireless. Use of the Software is conditional upon acceptance and compliance with this Agreement.

b. Use of the Software constitutes acceptance of this Agreement.

c. If the Customer does not accept the terms of this Agreement, the Customer must immediately return the Software to Bond Wireless. Any money paid for the Software will then be refunded to the Customer.

d. If the Software is supplied with another product, the Customer may return the entire unused product for a full refund.

2. Grant of Software Licence

a. Bond Wireless grants to the Customer a non-exclusive non-transferable licence to Use one copy of the Software in accordance with the terms of this Agreement, unless otherwise agreed by the Parties.

b. Bond Wireless retains all rights not expressly granted to the Customer and retains ownership of the copyright and all other Intellectual Property Rights in the Software.

c. If the Software is licensed for ‘concurrent use’ the Customer may not allow more than the maximum number of authorised users to Use the Software concurrently.

3. The Customer’s Obligations

a. The Customer must:

i. register the Software in order to keep using it;

ii. use the Software in a responsible manner and only in accordance with its intended Use; and

iii. keep secure all passwords relating to the Use of the Software.

b. The Customer must not:

i. Use or rely upon the Software for any purpose or in any manner for which the Software is not warranted;

ii. Use the Software for any activities which breach any laws or regulations, infringe a third party’s rights, or are contrary to any relevant standards or codes;

iii. Use the Software in a way which defames, threatens, menaces or offends any person or entity;

iv. tamper, modify or copy the Software in any way, unless otherwise authorised in this Agreement;

v. disable any licensing or control features of the Software in any way;

vi. export or re-export the Software;

vii. pass itself off to be another entity or person;

viii. Use the Software in a manner which would amount to spamming and/ or spoofing; or

ix. attempt any of the above or facilitate or assist another person or entity to do or attempt any of the above acts.

4. Copies and adaptations

a. The Customer may make copies of and/ or adaptations to the Software for archival purposes only.

b. The Customer must reproduce all copyright notices in the original Software on all copies or adaptations.

c. The Customer may not copy the Software onto any bulletin board or similar system.

5. No disassembly or decryption

The Customer may not disassemble or decompile the Software unless it obtains prior written consent from Bond Wireless.

6. Maintenance, error corrections and online services

6.1 Maintenance

a. Subject to Part C, Clause 14, Bond Wireless will maintain the Software, during the period from the date of purchase until the earlier of:

i. the second anniversary of the date of the initial supply by Bond Wireless of release one of this version of the Software, and

ii. the date of initial supply by Bond Wireless of the second successive version of the Software.

b. Subject to Part C, Clause 14, Bond Wireless is not required to enhance, Upgrade , Update or provide technical support for the Software free of charge beyond the first twelve months of this Agreement, and the Customer acknowledges that Bond Wireless may charge a maintenance fee for doing so.

6.2 Error corrections

a. During the term of the Agreement, Bond Wireless shall use its best efforts to correct any reproducible error in the Software with a level of effort commensurate with the severity of the error.

b. Bond Wireless shall have no obligation to correct all errors in the Software.

c. Upon identification of any error, the Customer shall notify Bond Wireless of such error and shall provide Bond Wireless with enough information to reproduce the error.

6.3 Exceptions to error corrections

Bond Wireless shall not be responsible for correcting any errors not reproducible by Bond Wireless through the Bond Wireless SMS Gateway, the Software or errors caused by:

a. the customer’s failure to implement all Updates and Upgrades issued under this Agreement insofar as those Updates and Upgrades relate to and purport to address the error in the Software;

b. changes to the Bond Wireless SMS Gateway or environment which adversely affect the Software;

c. any alterations or additions to the Software made by parties other than Bond Wireless;

d. use of the Software in a manner for which it was not designed;

e. interconnection of the software with other software products not supplied by Bond Wireless; or

f. Use of the Software on a non-Bond Wireless SMS Gateway.

6.4 Online Services

a. The Software may contain access to, or features that interface with, online services (“Online Services”)

b. Internet access is required for all Online Services, and charges may apply for the use of Online Services (in addition to the costs of Internet access levied by your Internet Services Provider).

c. Where Online Services are provided by a third party, separate terms and conditions with the third party provider may apply, and the Customer should check with the relevant third party provider as to the terms and conditions of use.

d. Access to Online Services may be withdrawn by Bond Wireless at any time, and Bond Wireless will not be liable for withdrawal of access to any Online Services.

e. Where access is to be withdrawn, Bond Wireless may choose to notify the Customer in advance provided that the Customer has supplied Bond Wireless with a valid and up to date email address.

Part B: Supply of Services Agreement

1. Provision of Services

Bond Wireless will provide the Customer with the Services and such other services as it may agree to provide to the Customer from time to time on the terms of this Agreement.

2. The Customer’s obligations

a. The Customer will ensure that it complies at all times with all laws and obligations applicable to the Services and their Use.

b. The Customer will not use the Services to transmit or publish any material which is defamatory of any person, or any material in breach of copyright or any obligations of confidentiality, or otherwise in breach any law, and the Customer will indemnify Bond Wireless for any loss or expense it suffers as a result of the Customer doing so.

3. Suspension of Services

Bond Wireless may from time to time and without notice or liability to the Customer, suspend any of the Services in any of the following circumstances:

a. During any technical failure, modification or maintenance of the Services (but in that event Bond Wireless will procure resumption of the Services as soon as reasonably practicable)

b. If the Customer fails to comply with any of the terms of this Agreement until the breach (if capable of remedy) is remedied; or

c. If the Customer does, or allows to be done, anything, which in the reasonable opinion of Bond Wireless may have the effect of jeopardising the operation of the Services.

4. Caller ID Functions

a. The Customer acknowledges that caller ID may be included in the Services provided by Bond Wireless.

b. The Customer is limited to three user names in relation to the caller ID function, and is required to elect what names or numbers will be used at the commencement of this Agreement.

c. The Customer acknowledges that if it chooses to provide a false caller ID this Agreement may be terminated by Bond Wireless.

5. Expiration of SMS credits

a. The Customer acknowledges that the use of SMS credits expire:

i. In the case of SMS credits supplied with the Software, 12 months from the date of purchase of the Software;

ii. In the case of SMS credits purchased by the Customer as pre-paid credits, 12 months from the date of purchase of the pre-paid credits.

b. The Customer acknowledges that Bond Wireless is not required to provide a refund for any unused credits which expire 12 months from the date of purchase.

Part C: General

1. Defined terms & Interpretation

1.1 Definitions

Agreement means this Agreement between Bond Wireless and the Customer;

Confidential Information means all confidential information relating to the Software and us, which is or has been disclosed under or in connection with this Agreement; or learnt or acquired in the performance of the Agreement, other than any such information which:

a. was in the public domain at the time of its provision, otherwise than through a disclosure in breach of the terms of this Agreement; or

b. is or lawfully came into the possession of the other party otherwise than as a result of a disclosure in breach of the Agreement;

Customer means you;

Intellectual Property Rights includes any rights associated with inventions, copyright, designs, trademarks, trade names, service marks, indicia of origin, business names, patents, petty patents, innovation patents and including any right to apply for any of the above rights;

Parties means Bond Wireless and the Customer;

Services means those SMS services provided to the Customer by Bond Wireless to facilitate the Use of the Software;

Software means software and ancillary products marked as Bond Wireless proprietary software:

Software Licence means the grant of a licence to use the Software from Bond Wireless to the Customer;

Spamming means the transmission of unsolicited mass SMS or email messages to businesses and people who have not agreed to receive the message.

Spoofing means the unauthorised access to a computer by sending a message to a computer with an IP address indicating that the message is coming from a trusted host.

Updates means a software product release containing error corrections and minor enhancements, in object code form, which is made commercially available by Bond Wireless and generally indicated by a change in the revision number in the tenths or hundredths digit to the right of the decimal point (e.g. a change from version 1.10 to 1.11 or 1.20) and any corrections and Updates to the associated documentation.

Upgrades means a software product release containing significant functional enhancements and feature additions of the Software, in object code form, which is made commercially available by Bond Wireless and generally indicated by a change in the revision number to the left of the decimal point (e.g. 1.xx to 2.xx)

Use means storing, loading, installing, executing or displaying the Software and using the Services supplied by Bond Wireless;

Warranty period means twelve (12) months from the date of your purchase of the Software unless extended by Bond Wireless.

1.2 Interpretation

In the Agreement, unless the context otherwise requires:

a. headings are for convenience only and do not affect interpretation;

b. the singular includes the plural and vice versa;

c. all references to dollars, value and price are to Australian currency;

d. references to a party includes its successors and permitted assigns;

e. references to payment to any party includes payments to another person on the direction of that party; and

f. a reference to any statute includes any amendments, re-enactments or replacements to that statute from time to time.

2. Warranties

a. Bond Wireless warrants to the Customer that the Software will be free from defects in materials for the duration of the Warranty Period.

b. If the Customer discover a defect in the Software the Customer will notify Bond Wireless in writing, outlining the nature of the defect.

c. On receiving your notice regarding the defect Bond Wireless will either repair or replace the defective Software, which in Bond Wireless’ reasonable opinion is defective, or pass the Software on to the manufacturer for repair.

d. If Bond Wireless do not repair or replace the defective Software within a reasonable time then the Customer will be entitled to a refund of the purchase price upon your prompt return of the Software.

e. Bond Wireless does not warrant or make any representations:

i. that the Software is of merchantable quality, suitable for your use, or is fit for any other purpose;

ii. that the operation of the Software and the Services will be uninterrupted or that the Software is error free;

iii. regarding the results of any Use of the whole or any part of the Software;

iv. as to the accuracy, reliability or content of any data, information, service or goods obtained through the Use of the whole or any part of the Software and Services; or

v. that the Use of the Software will not infringe the Intellectual Property Rights of a third party.

f. The Warranties provided under this Agreement doe not apply to defects resulting from:

i. improper of inadequate maintenance or calibration;

ii. software, interfacing, parts or supplies not supplied by Bond Wireless;

iii. unauthorised specifications for the Software; or

iv. improper site preparation or maintenance

3. Intellectual property

a. All Intellectual Property Rights in the Software and all adaptations and improvements to the Software are owned by Bond Wireless and its third party suppliers.

b. Your licence confers no title or ownership in the Software and is not a sale of any rights in the Software.

c. The Customer must not cause Bond Wireless’ Intellectual Property Rights to be infringed.

4. Restrictions on Use

The Customer must not use the Software or Services in any manner or for any purpose that is unlawful or in any manner that violates any of Bond Wireless’ rights or which is prohibited by this Agreement.

5. Disclaimer and Limitation of Liability

a. The Trade Practices Act 1974 (Cth) and similar state and territory legislation in Australia confers the Customer with rights and remedies relating to the provision of the licence of the Software to the Customer by Bond Wireless, which cannot be excluded, restricted or modified (your ‘Statutory Rights’). Bond Wireless excludes all conditions and warranties implied by custom, law or statute for your Statutory Rights.

b. Save for your Statutory Rights, in respect of the Software:

i. The Software Licence is provided to the Customer without warranties of any kind (except for those referred to in Clause 4 ), including, but not limited to, implied warranties of fitness for a particular purpose.

ii. Bond Wireless does not warrant:

A. the functions of the Software will be uninterrupted or error free or that any defects will be corrected if they occur outside of the Warranty Period;

B. the Software is of merchantable quality or that it is suitable for your intended Use;

C. the Software will produce a certain result;

D. the Software will perform accurately, reliably or in accordance with your time requests relating to the delivery of SMS messages.

E. the Services will be free of blockages, delays or faults;

F. the accuracy, reliability or content of any data or information, received by the Customer through the use of its Services and is not liable to the Customer or any other person for any loss or damage incurred as a result of any reliance on this information.

c. To the extent permitted by law, our liability for breach of any implied warranty or condition, which cannot be excluded by this Agreement, is limited, at our option, to one or more of the following:

i. the replacement of the Software; or

ii. the repair of the Software; or

iii. the payment of the costs of replacing the Software;

iv. the payment of the costs of having the Software repaired; or

v. the supply of Services again or paying the cost of doing so.

d. Bond Wireless relies on your continued observance of this Agreement. In the event that Bond Wireless suffers loss or damage or incurs any costs associated with your breach of any of the terms of this Agreement or any associated legal obligation, the Customer agree to indemnify Bond Wireless for those losses, damages and costs.

e. Bond Wireless, its employees, agents, contractors and the authors disclaim any and all liability and responsibility to any person, whether a user of this Software or not, in respect of anything (including, without limitation, any error in or omission from this Software) and of the consequences of any actions taken or omitted to be taken in reliance, whether wholly or partially, upon all or any part of the content, recommendations or help contained in the Software.

f. Bond Wireless and its authorised distributors disclaim all liability for any corruption of data, inability to access data, breach of privacy, downtime as a result of or arising from the use of any online link between the Software and another server including without limitation in connection with any Online Services.

g. Bond Wireless makes no warranty or representation in connection with the Online Services, the responsibility for which rests with the relevant provider of such Online Services.

h. Bond Wireless makes no warranty or representation in connection with the ability of mobile network operators to deliver SMS messages beyond the Bond Wireless Gateway.

6. Indemnity

a. The Customer expressly acknowledge that Bond Wireless does not exert control over your Use of the Software and Bond Wireless is not liable for damage suffered by the Customer or any third party either directly or indirectly, as a result of your Use of the Software and the Services.

b. The Customer indemnifies Bond Wireless from and against all actions, claims, suits, demands, damages, liabilities, costs or expenses arising out of or in any way connected to your Use of the Software and the Services.

7. Force Majeure

a. Bond Wireless are not liable for:

i. any delay in providing the Customer with the Software or the Services;

ii. any delay in correcting any fault in the Software or the Services;

iii. failure or incorrect operation of the Software or the Services; or

iv. any other delay or default in performance under this Agreement

if it is caused by any event reasonably beyond our control, including but not limited to war, accident, act of God, industrial action, embargo, delay or failure or default by any other third party.

8. Termination

a. The terms of this Agreement are effective until Bond Wireless terminates the Agreement.

b. Bond Wireless may terminate the Agreement at any time upon giving the Customer reasonable notice in writing advising of termination.

c. Upon termination the Customer must return to Bond Wireless the Software, together with any copies, adaptations and merged portions in any form.

d. In the event of termination, all restrictions imposed on the Customer by the Agreement and/or disclaimers and limitations of liability set out in the Agreement will survive.

e. Upon termination of this Agreement by Bond Wireless, it shall be relieved of any obligation to refund or credit any SMS credits held by the Customer as at the date of termination.

9. Immediate termination

Bond Wireless may terminate this Agreement immediately by notice to the Customer if the Customer has breached any of the terms of the Agreement.

10. Assignment

Bond Wireless may at any time assign or novate all of its rights and obligations under this Agreement.

11. Disputes

The Customer should direct any queries, complaints or disputes by writing to Bond Wireless.

12. Confidentiality

a. The Customer will keep the Confidential Information confidential, and will not allow any written or electronically recorded material to be copied.

b. On the termination of this Agreement for any reason, the Customer will return all Confidential Information to Bond Wireless. If the Customer has destroyed the Confidential Information, or any part of it, then the Customer will give Bond Wireless a written declaration accordingly.

c. The Customer will keep confidential the manner in which Bond Wireless arranges the Licence under this Agreement, including its charges and discounts, and all other financial information.

d. The Customer will not use information which the Customer acquire from Bond Wireless for any purpose without its prior written consent, which may cause Bond Wireless loss, whether by way of damage to its reputation, financial loss or otherwise.

13. Privacy opt in/opt out and spamming

13.1 Privacy

a. The Customer acknowledges that Bond Wireless collects and stores information relating to the Customer and messages sent via SMS by the Customer.

i. The Customer authorises Bond Wireless to collect such information for verification and record keeping purposes only.

ii. Bond Wireless warrants that only authorised personnel will be able to access this information.

b. Bond Wireless warrants to the Customer that Bond Wireless’ collection of personal information from the Customer does not contravene any individual’s privacy rights under any privacy laws and that Bond Wireless’ use and disclosure of that personal information in accordance with this Agreement will also not contravene the same.

c. Bond Wireless warrants that it will take all reasonable measures to store personal information provided by the Customer in a manner which will prevent it from being misused, or being accessed by someone other than authorised by Bond Wireless or by the individual to whom the information relates.

d. Bond Wireless will not use or disclose, or permit any use or disclosure of, any personal information provided to it by the Customer, except:

i. for the primary purpose of performing its obligations under this Agreement; or

ii. to comply with its obligations under privacy laws.

e. Bond Wireless’ obligations of confidentiality under this Agreement do not prevent it from disclosing personal information in the manner required by privacy laws.

13.2 Opt in/opt out and Spamming

a. Bond Wireless supports the right to privacy and does not condone Spamming as a technique for direct marketing

b. Bond Wireless may terminate this Agreement with any Customer who:

i. uses Spamming techniques to solicit information and,

ii. does not remove a recipient from any customer database upon being requested to do so by the recipient (‘opt out’)

unless the recipient has elected to receive the information provided by the Customer (‘opt in’)

14. Amendments to Agreement

a. Bond Wireless reserves the right to amend this Agreement at any time.

b. Bond Wireless will give written notice to the Customer of any variations to the terms of this Agreement.

15. Governing law

This Agreement is governed by and construed in accordance with the laws of the State of Queensland, Australia. The Customer irrevocably and unconditionally submits to the non-exclusive jurisdiction of the Courts of the State of Queensland and Courts of Appeal from them for determining any dispute concerning the terms of the Agreement.

16. Severance

If any provision contained in the Agreement is found to be invalid or unenforceable by a Court of Law, such invalidity or unenforceability will not affect the remainder of the Agreement, which will continue in full force and effect.

17. Entire Agreement

The Agreement contains the whole understanding between the Parties to the exclusion of any prior or collateral agreement or understanding of any kind relating to the Software Licence and Services.

18. Good and Services Tax (GST)

It is agreed that any consideration and all other amounts to by paid by the Customer to Bond Wireless are exclusive of GST.

19. Inaction not to constitute waiver

If Bond Wireless does not act in relation to a breach of the Agreement by the Customer, this does not waive its rights to act with respect to subsequent or similar breaches of the terms of the Agreement by the Customer.

20. Acceptance of Agreement

a. The Customer acknowledge that the Customer accept the terms of the Agreement entirely as a result of the Customer own enquiries and that the Customer do not rely on any statement, representation or promise by us or on our behalf not expressly set out in this Agreement.

b. The Customer accordingly release Bond Wireless and each of its officers, agents and advisers from all claims, suits and demands of every kind (including negligence).