SOFTWARE LICENCE AND DISTRIBUTION AGREEMENT WARNING: THE CURRENCY CONVERSION APPLICATION (LICENSED SOFTWARE) AND ASSOCIATED DOCUMENTATION (TOGETHER REFERRED TO AS THE LICENSED MATERIALS) AVAILABLE ON OR THROUGH THIS SITE ARE COPYRIGHT AND SUBJECT TO THIRD PARTY INTELLECTUAL PROPERTY AND OWNERSHIP RIGHTS OF E-JAZ PTY LTD ACN 095 769 734 (THE OWNER). THEY ARE LICENSED (NOT SOLD). PERMISSION TO USE AND/OR SUB-LICENCE THE LICENSED MATERIALS IS CONDITIONAL UPON YOU THE LICENSEE AGREEING TO THE TERMS SET OUT BELOW. DO NOT PROCEED UNTIL YOU HAVE READ AND ACCEPTED ALL THE TERMS AND WISH TO BECOME THE LICENSEE OF THE LICENSED MATERIALS. ACCEPTANCE BY CLICKING THE “I AGREE” BUTTON WILL BIND YOUR COMPANY (AND ITS OFFICERS, DIRECTORS, EMPLOYEES AND CONTRACTORS) TO THE TERMS OF THIS AGREEMENT. THE LICENCE WILL BE BETWEEN THE LICENSEE AND THE LICENSOR E-JAZ PTY LTD 095 769 734 (“THE LICENSOR”). IF YOU DO NOT WISH TO ACCEPT THESE TERMS CLICK THE “I DISAGREE” BUTTON WHEREUPON ANY ONLINE TRANSACTION FOR THE LICENSED MATERIALS WILL CEASE AND YOU WILL NOT BE PERMITTED TO USE OR SUB-LICENSE THE LICENSED MATERIALS. PARTIES E-JAZ Pty. Ltd. ACN 095 769 734 of 5 Whyalla Court, Karana Downs in the State of Queensland, Australia. (“the Licensor”) AND: The company or entity named in the accompanying Licensee Registration Form (“the Licensee”) for the licensing and distribution of a web-based software currency conversion program and other documentation and services. BACKGROUND A. The Licensor is the owner of the Intellectual Property Rights in a web-based computer program and associated documentation for the calculation and display of foreign currency conversion rates on e-commerce websites. B. The Licensor has agreed to grant the Licensee a non-exclusive licence to use, distribute and sub-licence the computer program and associated documentation in accordance with the terms and conditions of this Agreement. AGREEMENT 1. Definitions In this Agreement, unless the contrary intention appears: “Additional Charge” means a charge in accordance with the Licensor’s standard rates in effect from time to time; “Advertising Materials” means any marketing, point of sale material in the form of artwork, literature, electronic, video and audio material and any other material developed for use in connection with the distribution, marketing, advertising, promotion and sale of the Licensed Software which is developed, owned or licensed by the Licensor; “Agreement” means this Agreement for the licensing and distribution of the Licensed Materials; “Business Day” means a day other than a Saturday, Sunday or public holiday in Brisbane “Commencement Date” means the date so specified in Schedule 1; “Confidential Information” means the confidential information of a Party which relates to the subject matter of this Agreement and shall include: -the discussions of the parties pursuant to this Agreement; -the code, design, specification and content of the Licensed Software; -the Licensor Intellectual Property (excluding the Documentation); -the policies or business strategies of either Party; -the financial information and records of either Party; -Currency Conversion Rates supplied by the Licensor; -sales, activity and transaction reports of either Party; -User data and any other website data of the Licensor associated with this Agreement; -User identification and passwords for persons associated with the use of the Licensed Software; the terms of this Agreement; -information which is by its nature confidential; -information designated in writing as confidential by either Party from time to time during the term of this Agreement; -information acquired by either Party in the course of negotiations between the Parties; -trade secrets of a Party; -information imparted in confidence to the one Party to the other Party; -any other information classifiable in equity as confidential information; and -includes all forms of representation or disclosure of the information whether reduced to material form or not and all forms of storage or representation of the information referred to in sub-clauses (a) to (p) including, but not limited to, loose notes, diaries, memoranda, drawings, photographs, electronic storage and computer printouts; “Currency Conversion Rates” means international currency rates data obtained from any source and made available by the Licensor for use with the Licensed Software pursuant to the provision of the Services; “Designated Equipment” means a single web-site server on which the User’s Website is hosted; “Distribution Requirements” means the reasonable distribution requirements of the Licensor as notified to the Licensee from time to time; “Documentation” means operating manuals and other printed materials referred to in Schedule 1 including users’ manuals which are designed to assist or supplement the understanding or application of the Licensed Software; “Force Majeure” means a circumstance beyond the reasonable control of the Parties which results in a Party being unable to observe or perform on time an obligation under this Agreement. Such circumstances shall include but shall not be limited to: (a) acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster; (b) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; and (c) strikes; “Initial Term” means the period specified in Schedule 1; “Intellectual Property Rights” means copyright, trade mark, design, patent, semiconductor or circuit layout rights whether registered or unregistered; “Licence Fee” means the fee specified in Schedule 2, payable by the Licensee to the Licensor, for the use of the Licensed Software by the Users; “Licensed Materials” means the Licensed Software, Documentation and Advertising Materials. “Licensed Software” means the code designated in Schedule 1 and any enhancement, modification, update or new release of that code or part thereof; “Licensee Registration Form” means the online registration form on the Offering Site that enables an entity to register to become a Licensee to obtain a licence for the Licensed Materials and the provision of the Services. “Licensor Intellectual Property” includes: (a) inventions, discoveries and novel designs including developments or improvements of equipment, products, technology, processes, methods or techniques of the Licensor associated with and including the Licensed Materials and Services; (b) copyright (including future copyright) throughout the world in all literary works, artistic works, computer software, and any other works or subject matter including the Licensed Materials of the Licensor in which copyright subsists and may in the future subsist; and (d) trade and service marks (whether registered or unregistered) of the Licensor; “Licensor Requirements” means the requirements of the Licensor in relation to the undertaking and completion of online registration procedures for each User, the application for and grant of user identifications and passwords and the compliance with other administrative procedures notified to Users associated with the use of the Licensed Software; “New Materials” means inventions, discoveries and novel designs, whether or not registered or registrable as patents or designs, including developments or improvements of equipment, products, technology, processes, methods or techniques and copyright in any materials developed by the Licensee associated with the Licensed Software and Services; “Offering Site” means the website of the Licensor on which the Licensee Registration Form is located. “Party” means either the Licensor or the Licensee as the context dictates; “Registration Order Form” means the online registration form on the Licensee’s web site for the placing of an order by a Sub-licensee to obtain a sub-licence for the Licensed Software. “Restraint Period” means the period, specified in Schedule 1; “Term” means the Initial Term and subsequent extensions of that period pursuant to this Agreement; “Schedule” means a schedule to this Agreement; “Services” means those services to be provided by the Licensor to Users as specified in Schedule 4; “Sub-Licensee” means a sub-licensee of the Licensed Software and Documentation under clause 4.1. “User” means the Licensee or a Sub-Licensee who has: (a) agreed to accept the terms of use or licence conditions for use of the Licensed Software; (b) registered online at the website of the Licensor to use the Licensed Software; (c) received all user identifications and passwords associated with the use of the Licensed Software; and (d) installed the Licensed Software for use on the User Website. “User Website” means the User’s website as nominated in the Registration Order Form or Licensee Registration Form or as otherwise notified to the Licensor or Licensee. 2. INTERPRETATION 2.1 In this Agreement, unless the contrary intention appears: (a) the clause headings are for ease of reference only and shall not be relevant to interpretation; (b) a reference to a clause number is a reference to its subclauses; (c) words in the singular number include the plural and vice versa; (d) words importing a gender include any other gender; (e) a reference to a person includes bodies corporate and unincorporated associations and partnerships; (f) a reference to a clause is a reference to a clause or subclause of this Agreement; (g) a reference to a subclause is a reference to a subclause of the clause in which that reference is made; (h) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings; (i) a reference to a Schedule includes a reference to any part of that Schedule which is incorporated by reference; (j) the recitals to this Agreement do not form part of the Agreement; (k) monetary references are references to Australian currency. 2.2 The documents comprising this Agreement shall be read in the following order of precedence: (a) the clauses of this Agreement; (b) the Schedules. 2.3 Where any conflict occurs between the provisions contained in two or more of the documents forming this Agreement, the document lower in the order of precedence shall where possible be read down to resolve such conflict. If the conflict remains incapable of resolution by reading down, the conflicting provisions shall be severed from the document lower in the order of precedence without otherwise diminishing the enforceability of the remaining provisions of that document. 3. TERM 3.1 This Agreement commences on the Commencement Date and continues for the Initial Term and any extensions of that period under clause 3.2 unless otherwise terminated in accordance with the provisions of this Agreement. 3.2 At the sole discretion of the Licensor, this Agreement may be renewed for subsequent terms of similar duration to the Initial Term. The Licensee shall provide at least 30 days’ notice in writing prior to the expiry of the Initial Term or any subsequent term if it wishes to renew the Agreement pursuant to this subclause. 4. GRANT OF LICENCE 4.1 The Licensor grants to the Licensee for the Term subject to the terms of this Agreement a non-exclusive, non-transferable, worldwide licence to: (a) use, distribute and sub-licence the Licensed Software to the Sub-Licensees; (b) use, distribute and sub-licence the Documentation to the Sub-Licensees; and (c) use and distribute the Advertising Materials. 4.2 The Licensee agrees: (a) to comply and to procure that its Sub-Licensees comply with the Licensor Requirements (to the extent that they are applicable to the Sub-Licensee) and to do so in accordance with the reasonable time frames as notified by the Licensor; and (b) to comply with the Distribution Requirements of the Licensor. 5. SOFTWARE LICENCE CONDITIONS 5.1 The Licensee and its Sub-Licensees may only use the Licensed Software in accordance with the normal operating procedures as notified by the Licensor in the Documentation. 5.2 Subject to clause 5.3, the Licensed Software may only be used pursuant to this Agreement: (a) by the Licensee and Sub-Licensees; and (b) on the Designated Equipment of the Licensee and Sub-Licensees. 5.3 Unless specified to the contrary in Schedule 1, the Licensed Software may not be used on equipment other than Designated Equipment save that at the sole risk of the Licensee and Sub-Licensees it may be used on alternative equipment if: (a) the Designated Equipment is temporarily inoperable due to malfunction, maintenance or change of installation site; or (b) the Licensor has otherwise given its consent in writing to such alternate use. 5.4 Subject to clause 5.5, the licence granted to the Licensee permits the Licensee: (a) to use the Licensed Software only for use on one website of the Licensee; and (b) to grant a sub-licence to a Sub-License to use the Licensed Software only for use on one website of the Sub-Licensee. 5.5 The Licensed Software may be used on more than one website belonging to a Licensee or Sub-Licensee if the Licensor’s prior consent is obtained. 6. DOCUMENTATION 6.1 The Licensor shall provide the Licensee with the number of copies of the Documentation specified in Schedule 1. 6.2 The Licensee acknowledges that the Documentation contains sufficient information for the adequate use of the Licensed Software, except to the extent the Licensor has notified the Licensee of any omission or deficiency or of any variation which it considers necessary for the proper use of the Licensed Software. 6.3 The Licensee shall not copy or reproduce the Documentation except to the extent otherwise authorised by this Agreement or the Licensor’s consent. 7. COPYING 7.1 The Licensee shall not copy, alter, modify, reproduce, publish, transfer, disclose or create derivative works of the Licensed Materials except to the extent otherwise authorised by this Agreement. 7.2 The Licensee may make sufficient copies of the Documentation as required by its officers, directors and employees for the purposes of its own internal use, marketing and promotion of the Licensed Software and for provision of the Documentation to a Sub-Licensee in accordance with clause 7.3. 7.3 The Licensee shall only provide one copy of the Licensed Software and Documentation to a Sub-Licensee provided the Sub-Licensee agrees to not sub-license, copy, alter, modify, reproduce, publish, transfer, disclose or create derivate works of the Licensed Software and Documentation. 7.4 The Licensor agrees that it shall be liable for the acts and omissions of its officers, directors, employees, contractors, Sub-Licensees and their officers, directors, employees and contractors under this clause as if they were parties to this Agreement. 7.5 In addition to any other remedies available to the Licensor under this Agreement or otherwise, any unauthorised use, alteration, modification, reproduction, publication, disclosure or transfer of the Licensed Materials by the Licensee, the Sub-Licensees and their respective officers, directors, employees and contractors will entitle the Licensor to any available equitable remedy against the Licensee. 7.6 If requested by the Licensor, the Licensee shall issue a notice in a form approved by the Licensor to its directors, officers and employees and Sub-Licensees advising such persons of the Licensee’s obligations under this clause and also advising of the possible civil and criminal consequences of a breach of this clause. 8. SECURITY 8.1 The Licensee and its Sub-Licensees shall be solely responsible for the use, supervision, management and control of the Licensed Software and Documentation. 8.2 The Licensee shall ensure that the Licensed Software and Documentation are protected at all times from unauthorised access, misuse, damage, destruction or any form of unauthorised use. 8.3 The Licensee shall procure that its Sub-Licensees agree to ensure that the Licensed Software and Documentation are protected at all times from unauthorised access, misuse, damage, destruction or any form of unauthorised use. 8.4 The Licensee shall keep accurate records of the copying and provision of the Licensed Software and Documentation for its own use and for the purposes of sub-licensing those materials to the Sub-Licensees. The Licensee shall permit the Licensor to inspect such records at any time during the Licensee’s normal business hours. If the Licensor requests, the Licensee shall furnish to the Licensor a copy of all or any part of such records. 9. UPDATES AND NEW RELEASES 9.1 The Licensor is under no obligation under this Agreement to provide updates or new releases for the Licensed Software however where a new release or update (“New Release”) is provided to the Licensee: (a) the Licensor will deliver the New Release at no additional charge to the Licensee; (b) the Licensee must: (i) accept and install the New Release at its own cost; (ii) make sufficient copies of that New Release to provide to its Sub-Licensees; (iii) deliver that New Release to all of its Sub-Licensees; (iv) procure that its Sub-Licensee’s accept and install the New Release at their own cost; (v) unless otherwise advised by the Licensor, immediately discontinue the use, supply and delivery of the former version of the Licensed Software and commence to only provide to its new Sub-Licensees the New Release of the Licensed Software; and (vi) procure that its Sub-Licensees immediately discontinue the use of the former version of the Licensed Software, unless otherwise advised by the Licensor. 9.2 This Agreement will continue to apply in all respects to the New Release. 9.3 Without limiting the Licensee’s obligations under this clause, and notwithstanding any other provision of this Agreement, the Licensor shall be under no liability to the Licensee in the event of loss or damage suffered by the Licensor as a result of its failure to comply with this clause, and the Licensee shall indemnify the Licensor in respect of any loss or damage suffered by the Licensor as a result of the Licensee’s or Sub-Licensee’s failure to comply with the obligations under this clause. 10. ADVERTISING AND PROMOTION 10.1 The Licensee must at its own cost and in accordance with the terms of this Agreement do all things necessary to: (a) maximise the sales and distribution of the Licensed Software; (b) establish, maintain and improve the reputation and goodwill of the Licensed Software in the marketplace; (c) advertise and promote the Licensed Software; (d) develop, distribute and display advertising and promotional material in relation to the Licensed Software on its websites, at merchandise markets and trade shows; and (e) engage all necessary sales representatives, other personnel and advisers required to perform the requirements under this Agreement. 10.2 The Licensee agrees to comply with any advertising and promotional requirements of the Licensor in relation to the Licensed Software including but not limited to the use and distribution of the Advertising Materials. 10.3 The Licensee must conduct all necessary advertising, marketing and promotional activities and campaigns in relation to the Licensed Software and without limitation must conduct the advertising and marketing activities and campaigns: (a) as specified in Schedule 3; and (b) as otherwise agreed in writing pursuant to the terms of this Agreement. 11. BRANDING, TRADEMARKS AND NOTICES 11.1 The Licensee may not remove the trade marks of the Licensor from the Licensed Materials and may not re-brand such materials with its own trade marks, get-up and packaging. 11.2 The Licensee shall not be permitted to remove alter or modify any copyright and other notices of the Licensor on the Licensed Materials and must at all times ensure that such copyright and other notices are maintained without modification, erasure and degradation on the Licensed Materials. 12. SERVICES 12.1 Subject to clause 12.2, the Licensor shall provide the Services to the Licensee in such manner as it deems appropriate. 12.2 The Parties acknowledge and agree that the Services: (a) may be suspended, interrupted or discontinued for a period in the event of scheduled or unscheduled system downtime for maintenance and upgrades or otherwise in the event of any failures where those failures have occurred as a result of third party dependencies and are beyond the control of the Licensor; (b) may be suspended or terminated at the discretion of the Licensor in the event of the provision of: (i) any false or misleading information to the Licensor by any User; (ii) any unauthorised access, activity, tampering or modification of the Licensor’s databases and websites by any User or their customers; and (iii) any failure of any User and their customers to comply with any of the Licensor’s website terms of use and policies. 12.3 Where the Licensee requests the provision of certain services which are not within the scope of the Services, the Licensor may charge an Additional Charge for the provision of those services to the Licensee. 12.4 The Licensee acknowledges that the Licensor has no obligation to provide the Services to its Sub-Licensees. However, where the Licensor agrees to do so, the Licensor shall be entitled to payment of Additional Charges. Those Additional Charges shall either be payable directly by the Sub-Licensee to the Licensor or in absence of payment within the time frame stipulated or at all, shall be payable by the Licensee to the Licensor. 12.5 The Licensee otherwise agrees at its own cost to provide to its Sub-Licensee, services similar to the Services provided by the Licensor under this Agreement. 13. LICENCE FEE AND CHARGES 13.1 The Licensee shall pay the Licence Fee for the Licensed Materials and Services at the rate and in the manner specified in Schedule 2. 13.2 The Licensee shall pay the Additional Charge at the rate and in the manner specified in Schedule 2. 13.3 The Licensee agrees to provide the Licensor with statements in accordance with the frequency and in relation to the period (“the billing period”) stated in Schedule 2 providing accurate and current details of use of the Licensed Software by Users including details of: (a) Number of sub-licences granted for the billing period; (b) Number of new and continuing Users for the billing period; and (c) Such verification and other supporting documentation in relation to the above as reasonably requested by the Licensor. 14. GST 14.1 The License Fees and Additional Charges are exclusive of GST. 14.2 If GST is or will be payable with respect to the Licensed Materials and the Services, the amount payable to the Licensor will be increased by the amount of GST applicable for the Supply under this Agreement. 14.3 The Licensee agrees to provide the Licensor with statements in accordance with the frequency stated in Schedule 2 providing accurate and current details of GST: (a) required to be paid by Sub-Licensees in respect of the sub-licensing of the Licensed Materials and Services for the billing period; and (b) as paid by Sub-Licensees in respect of the sub-licensing of the Licensed Materials and Services for the billing period. 15. BOOKS AND ACCOUNTS 15.1 The Licensee must keep: (a) true and accurate records of all matters connected with the sub-licensing of the Licensed Software and Documentation and the provision of the Services; and (b) proper books of account relating to the Sub-Licence fees and GST paid or payable by Sub-Licensees to the Licensee (“Sub-Licence Records”) containing such correct entries complete in every particular as may be necessary to enable the amounts due to the Licensor to be conveniently ascertained and audited. 15.2 At the Licensor’s written request, the Licensee must at all reasonable times produce the Sub-Licence Records in accordance with the reasonable requirements of the Licensor. In addition, the Licensee must: (a) permit the Sub-Licence Records, if so desired by the Licensor, to be examined by an independent accountant or auditor nominated by the Licensor and reasonably acceptable to the Licensee; (b) permit the independent accountant or auditor to take copies of the Sub-Licence Records; (c) give the independent accountant or auditor all assistance, access and facilities necessary to enable the independent accountant to verify the Sub-Licence Records; and (d) supply such other information as may be necessary or proper to enable the amount of the Licences Fees, Additional Charges and GST payable under this agreement to be ascertained and verified. 16. INVOICES 16.1 The Licensee will make payments of the Licence Fees and GST to the Licensee for the amounts calculated as payable for each billing period in accordance with the requirements stated in Schedule 2. 16.2 In the event the Licensor disputes the amount of Licence Fees and GST calculated as payable and paid to the Licensor for the billing period, the Licensor shall be entitled to retain the payments made for that billing period and may conduct such enquires as are reasonably necessary to determine and calculate any further Licence Fees and GST payable for that billing period. Where the Licensor determines that further Licence Fees and GST are payable for that billing period, the Licensor will issue invoices to the Licensee for the payment of those further Licence Fees and GST. 16.3 Where services have been performed during a billing period by the Licensor for which Additional Charges and GST are payable by the Licensee, the Licensor will issue invoices to the Licensee for the payment of those Additional Charges and GST in accordance with the requirements of Schedule 2. 16.4 The Licensee must pay an invoice within 30 days of receiving it. 16.5 The Licensee shall pay the Licensor interest on any amount due and not paid within the timeframe required by this Agreement and at the rate of interest specified in Schedule 2. 17. SUB-LICENCE FEES 17.1 The Licensor may at any time advise the Licensee as to the recommended sub-license fee for the Licensed Software and Documentation. It is expressly acknowledged and agreed by the Parties that any recommended sub-license fee is a recommendation only and the Licensee is not obliged to sublicense the Licensed Software and Documentation at that fee to its Sub-Licensees. 17.2 The Licensor may at any time advise the Licensee of the maximum sub-licence fee for the Licensed Software and Documentation. In such circumstances, the Licensee shall not be permitted to sub-licence the Licensed Software and Documentation to its Sub-Licensees at a fee greater than the maximum sub-license fee. 18. REPRESENTATIONS AND WARRANTIES 18.1 Each Party represents and warrants to each other Party as at the date of this Agreement and at all times after the date of this Agreement, that: (a) it has full power and authority to enter into, perform and observe its obligations under this Agreement; (b) it has taken all necessary action to authorise the execution, delivery and performance of this Agreement in accordance with its terms; (c) the execution, delivery and performance by it of this Agreement do not and will not violate: (i) any law, regulation, authorisation, ruling, consent, judgment, order or decree of any governmental agency; (ii) its constitution or other constituent documents; or (iii) any encumbrance, undertaking or document which is binding upon it or on any of its assets; and (d) this Agreement constitutes its legal, valid and binding obligations and is enforceable in accordance with its terms subject to any necessary stamping and registration requirements and to equitable principles and laws generally affecting creditors’ rights. 18.2 In addition to the representations and warranties set out in clause 18.1, the Licensee represents and warrants to the Licensor as at the date of this Agreement and at all times during the Term that: (a) it has the level of skill, knowledge, experience and ability to meet the obligations under this Agreement; (b) each of the Licensee’s officers, directors and employees performing this Agreement has the level of skill, knowledge, experience and ability which may be expected of an individual experienced in performing a role of the type which has been given to that person in relation to this Agreement; (c) the use of the Licensee’s branding and trade marks on the Licensed Materials does not and will not infringe the Intellectual Property Rights of any third party; (d) there are no actions, claims, proceedings or investigations pending or threatened against it or by it which may materially adversely affect the performance of its obligations under this Agreement; (e) it has and will have during the Term all licences, authorisations, consents, approvals and permits required by the applicable laws in performing its obligations under this Agreement. 18.3 In addition to the representations and warranties set out in clause 18.1, the Licensor warrants that to the best of its knowledge and belief: (a) it has the right to grant the licences referred to in this Agreement; and (b) it has good and valid title to the Licensed Software and Documentation and knows of no third party rights to them. 19. IMPLIED WARRANTIES AND EXCLUSIONS 19.1 The provisions of the Trade Practices Act 1974 (as amended) and other laws from time to time in force in Australia may imply warranties or conditions or impose obligations upon the Licensed Materials which cannot be excluded, restricted or modified. Nothing in this Agreement shall be deemed to exclude or seek to exclude any such conditions warranties or obligations and this Agreement must be read and construed subject to any such provisions. 19.2 Liability for breach of a warranty by the Licensor in relation to the Licensed Materials shall be limited at the election of the Licensor to: (a) the replacement of the Licensed Materials; or (b) the repair of defects associated with the Licensed Materials. 19.3 Liability for breach of a warranty by the Licensor in relation to the Services shall be limited at the election of the Licensor to: (a) the re-supply of those Services by the Licensor; or (b) the payment of the cost of having those Services supplied again. 19.4 Other than the express and implied statutory warranties by the Licensor as referred to in this Agreement, all other warranties express or implied in relation to the Licensed Materials and Services are excluded. 20. WARRANTY EXCLUSIONS AND ACKNOWLEDGEMENTS 20.1 The Licensee acknowledges and must procure the acknowledgement of its Sub-Licensees that the Licensor makes no warranty or representation whatsoever as to: (a) the compliance of the Licensed Software and Services with any particular industry standards or statutory, regulatory or other requirements either in Australia or overseas; (b) the marketability of the Licensed Software; (c) the profits or revenues that may result from the sale or distribution of the Licensed Software; (d) the availability, operability and performance of the Licensed Software with any other software, system, browser or equipment of the Licensee, Sub-Licensees, a User or a User’s customer; (e) the accuracy, currency and completeness of the Licensed Materials; (f) the accuracy, currency and calculation of the Currency Conversion Rates provided to a User and displayed on a User Website as being the actual currency conversion rates for any transaction between a Sub-Licensee and/or User and their customers and that the currency conversion rates may be determined by a Users’ merchant facility providers or in accordance with other online payment service provider conversion rates accepted or applied by the Sub-Licensee, User, their customers and their respective financial providers; (g) the uninterrupted availability of the Services where those Services are dependant on third party services and third party service providers or are otherwise beyond the control of the Licensor; (h) that the Licensed Materials, Services and media on which it may be contained will be provided free of errors, defects or viruses. 20.2 Without limitation to clause 20.1, the Licensee acknowledges and agrees and the Licensee must procure the acknowledgement and agreement of its Sub-Licensees that the Currency Conversion Rates provided to the Licensee and its Sub-Licensees and displayed on a User Website by the use of the Licensed Software: (a) are for information purposes only and should not be relied upon as actual conversion rates that may be applied to a customer purchase transaction; (b) will be indicative only of approximate currency conversion rates that may be applied for a customer purchase transaction; (c) will fluctuate and vary frequently; (d) will vary between different financial providers; (e) may be sourced from the one or more financial providers; (f) will not be provided in real time to a User to allow the continuous display of fluctuations in currency conversion rates. 20.3 The Licensee and its Sub-Licensees must post appropriate disclaimers and notices on User Websites incorporating the information in this clause 20 and as otherwise directed by the Licensor. 21. INDEMNITIES 21.1 The Licensee acknowledges that it shall be solely responsible for all loss or damage directly or indirectly incurred including loss or damage arising out of the acts or omissions of the Licensee and its Sub-Licensees and their respective officers, directors, employees, agents and contractors and indemnifies the Licensor, its officers, directors and employees from all loss and damage (including consequential loss and damage) arising as a result of or in connection with: (a) any breach of this Agreement and any sub-licence agreement by the Licensee and its Sub-Licensees respectively; (b) any wilful, unlawful or negligent act or omission of the Licensee or the Sub-Licensee associated with this Agreement or any sub-licence agreement respectively; (c) the installation, use, marketing, promotion, sale, distribution and sub-licensing of the Licensed Materials by the Licensee; (d) the installation and use of the Licensed Software and Documentation by the Sub-Licensees; (e) infringement of the Intellectual Property Rights of any third party as a result of the use, marketing, promotion, sale, distribution or sub-licensing of the Licensed Materials by the Licensee; (f) infringement of the Intellectual Property Rights of any third party as a result of the branding and use of the Licensee’s trade marks on the Licensed Materials; (g) reliance on the accuracy, currency, suitability for use or intended use and of the Currency Conversion Rates by any person for any particular purpose other than as referred to in this Agreement; (h) the use or intended use of the Licensed Materials for any particular purpose other than as referred to in this Agreement; (i) use of the Licensed Software in combination by any means and in any form with any other software, systems, browsers and equipment; (j) modification or alteration of the Licensed Materials by the Licensee or Sub-Licensees; (k) any transaction entered into by the Licensee, Sub-Licensees and their customers relating to or associated with the use of the Licensed Software without the Licensor’s prior consent in writing; and (l) any other event or circumstance referred to in clause 20. 22. LIMIT OF LIABILITY 22.1 The Licensor’s liability with respect to the Licensed Materials supplied to the Licensee shall be limited to the Licence Fee paid for the Licensed Software. 23. INTELLECTUAL PROPERTY 23.1 Intellectual Property Rights in the Licensed Materials and Licensor Intellectual Property remains vested in the Licensor. 23.2 Title to and all Intellectual Property Rights in the New Materials including each and every stage of design and the New Materials will upon their creation be vested and assigned by the Licensee to the Licensor. 23.3 The Licensee must do all matters and things necessary and required to give effect to clause 23.2 and will comply in all respects with any requirements of the Licensor or any government authority in relation to registration or other dealings with the Intellectual Property Rights in the New Materials. 24. THIRD PARTY AND INTELLECTUAL PROPERTY CLAIMS 24.1 In the event that proceedings are brought or threatened by a third party against the Licensee alleging that the Licensee’s use of the Licensed Materials constitutes an infringement of Intellectual Property Rights, the Licensor may at its option and at its own expense conduct the defence of such proceedings. The Licensee shall provide all necessary co-operation, information and assistance to the Licensor in the conduct of the defence of such proceedings. 25. CONFIDENTIALITY 25.1 Each Party (the Disclosing Party) agrees to provide their Confidential Information to the other Party (the Receiving Party) as is necessary for the performance of the obligations and duties under this Agreement. 25.2 The Receiving Party shall hold in strict confidence all Confidential Information of the Disclosing Party and shall not directly or indirectly disclose all or any part of that Confidential Information in any manner whatsoever, in whole or in part to a third party except in accordance with the provisions of this Agreement or in any other case with the prior written consent of the Disclosing Party. 25.3 The Receiving Party will keep any Confidential Information disclosed to it secure, in safe custody and confidential in accordance with the terms of this Agreement and without limitation shall: (a) establish and maintain effective security measures to safeguard such Confidential Information from unauthorised access or use; (b) keep such Confidential Information under its control; (c) immediately notify the Disclosing Party of any suspected or actual unauthorised use, copying or disclosure of the Confidential Information of which it is aware; and (d) provide such assistance as is reasonably requested by the Disclosing Party in relation to any proceedings that the Disclosing Party may take against any person for unauthorised use, copying or disclosure of the Confidential Information. 26. CONFIDENTIALITY EXEMPTIONS 26.1 Clause 25 does not apply to Confidential Information: (a) in the public domain at the time it is provided to or obtained by the Receiving Party; (b) which after it is provided to or obtained by the Receiving Party becomes a part of the public domain other than through a breach by the Receiving Party of this Agreement; (c) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party who has represented to the Receiving Party that it is entitled to disclose such information; or (d) which, subject to clause 27, the Receiving Party is required to disclose at law. 26.2 The Receiving Party may disclose Confidential Information only to such of its directors, officers and employees and professional advisers who, having regard to the performance of specific duties associated with the performance of this Agreement: (a) have a need to know (and only to the extent that each has a need to know) in order to perform their duties on behalf of the Receiving Party; and (b) have executed an agreement with the Receiving Party substantially in accordance with the confidentiality terms and conditions specified in this Agreement prior to the disclosure. 27. USE OF CONFIDENTIAL INFORMATION 27.1 The Receiving Party agrees it shall use the Confidential Information solely for the purposes of and in connection with the performance of the obligations and duties under this Agreement. 27.2 Without limiting clause 27.1 and subject to the terms of this Agreement, the Receiving Party agrees that it shall not: (a) exploit the Confidential Information of the Disclosing Party; (b) use the Confidential Information for the Receiving Party’s own business purposes without authorisation from the Disclosing Party; (c) use the Confidential Information or any part of it to the competitive disadvantage of the Disclosing Party; (d) make copies in any format of the Confidential Information without the express authorisation of the Disclosing Party; (e) allow a third party to utilise or have access to the Confidential Information; and (f) without limiting (a) to (e) above, make any use, directly or indirectly, of the Confidential Information in a manner inconsistent with this Agreement or without the express written instructions of the Disclosing Party. 28. DISCLOSURE AT LAW 28.1 Where the Receiving Party becomes legally compelled (by oral questions, request for information or documents, subpoena, civil investigative demand or similar process) to disclose any of the Confidential Information of the Disclosing Party, the Receiving Party will provide the Disclosing Party with prompt written notice so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. 28.2 Where a protective order or other remedy is not obtained, or where the Disclosing Party waives compliance with the provisions of this Agreement, the Receiving Party will furnish only that portion of the Confidential Information which it is legally required to provide and will exercise its reasonable best efforts to obtain reliable assurance that confidential treatment will be accorded to that Confidential Information which it is legally compelled to disclose. 29. ACKNOWLEDGEMENTS 29.1 The Receiving Party acknowledges that: (a) the value of the Confidential Information is such that any award of damages or account of profits may inadequately compensate the Disclosing Party in the event of a breach of this Agreement by the Receiving Party; (b) without in any way compromising the Disclosing Party’s right to seek damages or any other form of relief in the event of a breach of this Agreement, the Disclosing Party may seek and obtain an ex parte interlocutory or final injunction to prohibit or restrain Receiving Party from any breach or threatened breach of this Agreement; 29.2 The Receiving Party acknowledges and agrees that if any Confidential Information is used or disclosed by any director, officer, employee or professional adviser of the Receiving Party not in accordance with the terms of this Agreement or pursuant to and in accordance with an agreement on similar terms required to be executed by such persons, then such use or disclosure shall be deemed to be disclosure by the Receiving Party and shall be a breach of this Agreement. 30. RESTRAINT PERIOD 30.1 During the Restraint Period, the Licensee agrees to not have any direct or indirect interest whether as an owner, partner, director, shareholder, officer, employee, consultant, representative, agent or in any other capacity (direct or indirect) in any business or arrangement involving the use, distribution or sale of software similar (or of similar functionality) to the Licensed Software, without the prior written consent of the Licensor, such consent not to be unreasonably withheld. 30.2 During the Restraint Period, neither Party shall solicit for employment, either directly or indirectly, any person who is employed or contracted by the other Party. 30.3 A Party shall promptly advise the other Party if a person who is employed or contracted by the other Party seeks to be employed or contracted by the first mentioned Party prior to the expiration of the Restraint Period. 31. TERMINATION 31.1 This Agreement may be terminated on 30 days written notice from one Party to the other Party. 31.2 The Licensor may during the Term and at its sole discretion terminate this Agreement immediately if at any time: (a) The Licensee breaches any clause of this Agreement which is capable of remedy and where such breach is not remedied within seven (14) days of receipt by the Licensee of written notice by the Licensor specifying the details of the breach and requiring it to be remedied; (b) The Licensee becomes, threatens or resolves to become subject to any form of insolvency administration; (c) the Licensee ceases or threatens to cease conducting its business in the normal manner; or (d) in accordance with clause 33. 31.3 The expiry or termination of this Agreement does not affect: (a) either Party’s rights in respect of any breach of this Agreement occurring before expiry or termination; or (b) the obligations of the Parties to make a payment under this Agreement which was due before expiry or termination. 32. TERMINATION CONSEQUENCES 32.1 Upon termination of this Agreement the Licensee must on and from the termination date: (a) immediately cease to use, market, promote, distribute, sell or provide the Licensed Materials to any third party; (b) procure that its Sub-Licensees immediately cease to use the Licensed Software and Documentation; (c) immediately cease to use the Confidential Information; (d) within three business days of termination, return to the Licensor all copies of the Licensed Materials and Confidential Information at the Licensee’s expense and in the manner directed by the Licensor; (e) within three business days of termination, delete, remove and destroy all electronic copies of the Licensed Materials (including that Licensed Material provided to Sub-Licensees) and Confidential Information (including all media on which it is contained) at the Licensee’s expense in the manner directed by and to the satisfaction of The Licensor. The Licensee will, where requested by the Licensor provide evidence of all action taken to comply with this provision; and (f) do all things necessary and required to immediately assign to the Licensor, the Intellectual Property Rights in the New Materials. 32.2 Where this Agreement is terminated pursuant to clause 31, the Licensor may: (a) retain any moneys paid; (b) charge a reasonable sum for Services performed in respect of which Services no sum has been previously charged; (c) be regarded as discharged from any further obligations under this Agreement; and (d) pursue any additional or alternative remedies provided by law if terminated pursuant to clause 31.2. 33. FORCE MAJEURE 33.1 Neither Party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure. 33.2 If a delay or failure of a Party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that Party’s obligations will be suspended. 33.3 If a delay or failure by the Licensee to perform its obligations due to Force Majeure exceeds 20 days, the licensor may immediately terminate the Agreement on providing notice in writing to the Licensee. 34. PERMISSIONS AND CONSENTS 34.1 The Licensee agrees at its own costs and expense to obtain all permissions, consents and meet all other statutory, compliance and regulatory requirements as may apply in respect of the promotion, sale, distribution or use of the Licensed Materials either in Australia or overseas. 35. DUTIES AND OTHER TAXES 35.1 The Licensee shall be responsible for the payment of all taxes, duties and charges in respect of: (a) this Agreement; and (b) the advertising, promotion, sale, distribution or use of the Licensed Materials either in Australia or overseas. 36. COMPLIANCE AND COSTS 36.1 The Licensee shall at its own cost, comply with all applicable laws, orders, regulations and directions of any governmental authority or other regulatory body having jurisdiction over this Agreement and the Licensed Materials. 37. VARIATION 37.1 Subject to the terms of this Agreement, this Agreement shall not be varied in any manner subsequent to its execution except as agreed in writing by the Parties. 38. SURVIVAL 38.1 Clauses 9, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32 and 33 shall survive termination of this Agreement. 39. ASSIGNMENT, NOVATION AND SUB-LICENSING 39.1 The Licensee shall not transfer, assign or novate this Agreement or any interest in this Agreement and shall not grant or authorise any licenses under this Agreement (other than the grant of sub-licences permitted) without the prior consent in writing of the Licensor. 40. RELATIONSHIP OF PARTIES 40.1 This Agreement does not constitute the Licensee an employee, agent or partner of the Licensor for any purpose whatsoever. The Licensee is not granted any right or authority to assume or to create any obligation or responsibility (express or implied) on behalf or in the name of the Licensor or to bind the Licensor in any manner or thing whatsoever. 41. ENTIRE AGREEMENT 41.1 This Agreement constitutes the entire agreement between the parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing. 41.2 The Licensee warrants that it has not relied on any representation made by the Licensor which has not been stated expressly in this Agreement. 42. WAIVER 42.1 Any failure by the Licensor to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by the Licensor to the Licensee, will not be construed as a waiver of the Licensor’s rights under this Agreement and will not prejudice its rights in respect of any subsequent breach of the Agreement by the Licensee. 43. DISPUTES 43.1 Any dispute arising in connection with this Agreement which cannot be settled by negotiation between the Parties or their representatives shall be submitted to arbitration in accordance with the Rules for the Conduct of Commercial Arbitrations for the time being of the Institute of Arbitrators Australia. During such arbitration, both Parties may be legally represented. 43.2 Prior to referring a matter to arbitration pursuant to clause 43.1, the Parties shall: (a) formally refer the dispute to their respective contract managers for consideration; (b) if the respective contract managers are unable to resolve the dispute after five days (or such other period as is agreed between the Parties) from the date of referral, refer the dispute to the respective chief executive officers of each Party; and (c) in good faith explore the prospect of mediation. 43.3 Nothing in this clause shall prevent a Party from seeking urgent equitable relief before an appropriate court. 44. SEVERABILITY 44.1 If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, the Agreement shall remain otherwise in full force apart from such provisions which shall be deemed deleted. 45. GOVERNING LAW 45.1 This Agreement will be governed by and construed according to the law of the jurisdiction specified in Schedule 1. 46. NOTICES 46.1 Any notice or any other communication including any approval, consent, request or demand in connection with this Agreement, must be: (a) signed by: (i) if the Licensor is giving the notice - the person stated in Item 8 of Schedule 1; or (ii) if the Licensee is giving the notice – the person stated in Item 9 of Schedule 1; and (b) served on the Licensor or the Licensee (as the case may be) by: (i) being left at the address of the Licensor or the Licensee (as the case may be) as specified in Schedule 1; (ii) sent by prepaid ordinary post (airmail if posted to or from a place outside Australia) to the address of the Licensor or Licensee (as the case may be) as specified Schedule 1; (iii) sent by facsimile to the facsimile number of Licensor or Licensee (as the case may be) as specified in Schedule 1; or (iv) sent by electronic mail to the electronic mail address of the Licensor or Licensee (as the case may be) specified in Schedule 1. 46.2 A notice takes effect from the time it is received unless a later time is specified in it. 46.3 Notice will be deemed given: (i) in the case of hand delivery, upon written acknowledgment of receipt by an officer or other duly authorised employee, agent or representative of the receiving Party; (ii) in the case of posting, three days after despatch; (iii) in the case of facsimile, upon receipt of transmission if received on a Business Day or otherwise at the commencement of the first Business Day following transmission; or (iv) in the case of electronic mail, on the day of the transmission if a Business Day and before 5pm, otherwise at 9am on the next Business Day, so long as the sender of the notice does not receive a delivery failure message in respect of that electronic mail. 47. REGISTRATION AND EXECUTION 47.1 When the Licensee completes, selects the “I Agree” option, and submits the online Licensee Registration Form on the Offering Site then: (i) The Licensee will be deemed to have entered this Agreement and the Agreement shall be binding on both Parties; (ii) The Licensee agrees that the associated Licensee Registration Form including details as inserted by the Licensee in the Licensee Registration Form shall be construed as forming part of this agreement; (iii) The Licensee acknowledges and agrees that it has agreed to become the Licensee; (iv) If the Licensor requests the Licensee to do so, the Licensee shall print and sign a hard copy of this Agreement and promptly return that duly executed copy of the Agreement to the Licensor. (v) In the event that the Licensor requests the Licensee to execute a hard copy of this Agreement in accordance with sub-clause (iv) above, this Agreement may be executed in counterparts by the respective Parties, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. SCHEDULE 1 – GENERAL 1. COMMENCEMENT DATE The date the Licensee completes and submits the Licensee Registration Form. 2. INITIAL TERM 24 months from the Commencement Date 3. DESIGNATED EQUIPMENT Not applicable 4. DOCUMENTATION Description : Online version of user manual and installation instructions, such other material as provided by the Licensor to the Licensee from time to time No. of copies :As agreed by the Parties 5. LICENSED SOFTWARE E-JAZ Currency Conversion Software 6. RESTRAINT PERIOD Term plus 6 months from termination date 7. GOVERNING LAW Queensland in the country of Australia 8. NOTICE TO LICENSOR Attention: Sharon Wild [Name] e-JAZ Pty Ltd [Address] 5 Whyalla Court, Karana Downs, Queensland, Australia 4306 Facsimile: 3201 0173 Email: Sharon@e-jaz.com.au SCHEDULE 2 - LICENCE FEE AND PAYMENT 1. LICENCE FEE For use of Licensed Software on Licensee website – Unless otherwise agreed, nil charge for use on one designated web site; For use of Licensed Software on Sub-Licensee website - The amount equal to 75% of the standard retail prices advertised on the Licensor’s web site for the Licensed Software (prices advertised for use of the Licensed Software by end-users for use of the relevant version and/or usage level of the Licensed Software) in each calendar month (“Relevant Invoicing Period”). The Licensor reserves the right to vary the Licence Fee at any time, by giving 30 days written notice to the Licensee in that regard. Licence fees are calculated exclusive of GST and other taxes and charges 2. BILLING PERIOD Calendar monthly for Term 3. REMISSION OF LICENCE FEES AND STATEMENT On or before the 7th Business Day of each calendar month following the end of each Relevant Invoicing Period. The Licence Fees shall be paid by the Licensee to the Licensor by credit card, by PayPal.com, by direct deposit into a specified bank account or by any other means of payment acceptable to the Licensor. 4. ADDITIONAL CHARGES Standard rates as notified from time to time by Licensor. SCHEDULE 3 – PROMOTIONS AND ADVERTISING As advised by the Licensor from time to time. SCHEDULE 4 – SERVICES Maintenance and Support Services – Help Desk 4.1 The Licensor agrees to provide the Licensee with telephone and e-mail support for defects in the Licensed Software as required between 9am and 5pm (Australian Eastern Standard Time) on Business Days. 4.2 All incoming and outgoing calls will be logged by the Licensor, with detailed reporting of support request usage to be provided upon request by the Licensee. 4.4 Help Desk support does not include training. If the nature and number of calls indicates that training is required, the Licensor reserves the right to charge an Additional Charge, and the customer may be requested to undertake training to be charged at an Additional Charge. 4.5 Support requests will be assigned a severity level, which will determine the appropriate response time: Severity Level 1 : The application is inoperable or unstable, and unable to be used for normal business operation. Attempted resolution timeframe is less than 1 day. Severity Level 2 : The application is available, but some components or functions are unavailable or unstable, or data is being corrupted or found to be corrupted. A temporary solution or workaround is identified. Attempted resolution timeframe is less than 2 days. Severity Level 3 : A defect has been identified that does not significantly affect the normal operation of the application, or there is an acceptable workaround to the defect. There is no significant impact on the business. Attempted resolution timeframe is less than 2 weeks. Severity Level 4 : A defect has been identified but has no real impact on the business. Attempted resolution timeframe is less than 2 weeks. 4.6 The procedure for handling support requests will be as follows: 1. The request will be logged and a severity level assigned by the Licensor. 2. If the Licensee does not have an immediate response and resolution, the request will be assigned to a technician 3. The technician will attempt to resolve the problem within the time specified in the “Attempted Resolution Timeframe” defined in section 4.6. 4.7 The Licensor may at its discretion schedule maintenance when reasonably necessary. Where scheduled maintenance will result in significant downtime or unavailability of the Licensed Software or the other Services, the Licensor agrees to notify the Licensee at least 48 hours before any scheduled maintenance is performed. 4.8 Help desk support does not cover: ¨ Support requests related to training; ¨ Support requests which after investigation are found not to be defects in the Licensed Software but are associated with the use issues and the Licensee operational environment; ¨ Onsite or offsite training; ¨ Report writing; and ¨ Development of custom functionality Any item falling into one of these categories will be charged to the customer as an Additional Charge. 4.9 A support request will be deemed to be training if the call is about a topic covered in the Documentation and does not involve a software defect. A call is not deemed to be Training if it relates to functionality that is available, but for which no documentation has been provided to the customer. The time for a support request for training will be charged as at the Additional Charge. v2