Linrock Software License Agreement

Version 1.126, 17^th April 2023

THIS DOCUMENT CONTAINS THE TERMS AND CONDITIONS OF USE OF PRODUCTS AND SOFTWARE PROVIDED TO LICENSEES BY LINROCK. THESE PRODUCTS AND SOFTWARE ARE THE PROPERTY OF LINROCK. IF YOU DO NOT AGREE TO ANY OR ALL OF THE FOLLOWING TERMS AND CONDITIONS, DO NOT DOWNLOAD OR INSTALL THE PRODUCTS OR SOFTWARE, DISCONTINUE THEIR USE IMMEDIATELY AND DESTROY ALL COPIES IN YOUR POSSESSION. AGREEMENT TO THESE TERMS AND CONDITIONS BINDS THE LICENSEE, EACH NAMED USER AND ANY OTHER PERSON WHO USES THE PRODUCTS OR SOFTWARE WITH THE EXPRESS OR IMPLIED AUTHORITY OF THE LICENSEE.

1. Definitions

License means, as the context requires, a Term Agreement, Named User License, Site License, or a Perpetual Agreement.

License Agreement means this agreement.

Licensee means an individual at least eighteen (18) years of age or an entity other than an individual (inclusive of any employees, agents, contractors, affiliates and subsidiaries) which is licensed to use the Product under the terms and conditions of this License Agreement.

Linrock means Linrock Software Pty Ltd (ABN 49 160 046 686) T/A Runthru Software, its successors and any person acting on behalf of and with the authority of Linrock.

License Fee means any fee payable by the Licensee to use or be authorised to use the Product, or to download and install the Product, that is included in a Sales Order or otherwise agreed in writing by Linrock.

License Period means:

(a) in respect of a Perpetual Agreement, the period commencing on the date the Licensee pays the License Fee and ending on the date which the License Agreement terminates pursuant to clause 16; or

(b) in respect of a Term Agreement, the period determined by reference to clause 2.5.2.

Licensing Server means Linrock’s online service that the Product connects to periodically for checking of License entitlement, checking basic usage information, updates, telemetry and submission of bug and crash information reporting for the purpose of product improvement.

Maintenance Period means the period where the Maintenance Plan is available.

Maintenance Plan means Product upgrades, updates and/or enhancements made generally available to Licensees from time to time, and online technical support for the sole purpose of addressing technical issues relating to the use of the Product.

Named User is an individual nominated by the Licensee to use the Product.

Named User License means the licensing of the Product to Named Users within the Potential User Group. Each Named User is authorised by the Licensee to use the Product through the Licensing Server, or other method as determined by Linrock, regardless of whether or not the individual is using the Product at any given time. The Named User may install the Software and use the Product on up to two devices (including operating systems and virtual machine environments). For clarity, each Named User requires an individual Named User License.

Perpetual Agreement means the License which grants the right to use the Product by or through the Licensee or its Named Users for an indefinite period.

Potential User Group means a group of individuals limited by agreement in writing between the Licensee and Linrock including, without limitation, by reference to the location of the group.

Product means all Linrock products and Software supplied by Linrock to the Licensee to which this License Agreement applies, which may be described in writing by Linrock, including in quotations, sales orders, receipts, invoices, templates, user manuals, guides, printed materials, on-line or electronic documentation and any updates or enhancements to the Product and Software issued by Linrock and authorised under this License Agreement.

Product Outputs means any information, materials or content created by the use of the Product.

Sales Order means an order, the terms of which are agreed by Linrock and will include specific details of the License.

Site License means the granting of Named User Licenses to all individuals within the Potential User Group.

Software means the executable code of the Product, including any additional tools, libraries, source files, templates, data files, any updates or error corrections provided by Linrock.

Team License means Site License.

Term Agreement means a License which grants the right to use the Product by or through the Licensee to its Named Users in the Potential User Group, for an agreed, fixed, period of time.

Trial Period means a period of up to 7 days, or as otherwise agreed in writing with Linrock.

Unauthorised Use means:

(a) reproduce, alter, merge, modify, adapt, translate or create derivative works of any part of the Software or Product, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form;

(b) adapting, creating or modifying new works from the Product;

(d) distributing, selling, sub-licensing or leasing the Software, unless expressly permitted by this License Agreement;

(e) producing or publishing plagiarised content; and

(f) producing or publishing content that is contrary to any Australian or foreign law.

(g) In relation to a Named User License, permit the use of the Product, Software or Named User License by any individual or entity other than the Named User;

(h) sell, rent, lease, sub-license, transfer, resell for profit, provide access, or otherwise distribute the Product or any part thereof to a third party, except as provided for in this License;

(i) interfere with any license control mechanism in the Software or otherwise circumvent mechanisms in the Software intended to limit use of the Software;

(j) remove or obscure any copyright and trademark notices relating to the Product;

(k) use the Product for competitive analysis or to build competitive products; or

(l) encourage or assist any third party to carry out any of the unauthorised uses referred to in (a) to (k).

Users means Named Users.

You or Your is a reference to the Licensee unless otherwise indicated.

2. Grant of License

2.1 Entering into License. Subject to the Licensee signing a Sales Order and paying the agreed License Fee, the Licensee and Linrock enter into a License that is subject to the terms of this License Agreement.

2.2 License Management. All Users must be listed on the Licensing Server unless otherwise agreed in writing by Linrock. Each time the Product is used, it will connect with the Licensing Server to check the validity of the License and for any updates. If an update is available, the Product will download and install that update automatically.

2.3 Transfer and assignment of Named User Licenses

In respect of a Named User License, the Licensee may assign Licenses to individuals within the Potential User Group up to the number of Licenses agreed in the Sales Order.

The use of a Named User Licence by any individual other than the Named User is expressly prohibited. In addition, a Named User License may not be transferred from one Named User to another unless the original Named User no longer requires, and is no longer permitted, access to the Product.

2.4 Trial Period

2.4.1 In its sole discretion, Linrock may permit the Licensee to use the Product for a Trial Period.

2.4.2 The terms of use of the Product during the Trial Period will be at Linrock’s sole discretion and Linrock may terminate the use of the Product during the Trial Period at any time and at Linrock’s sole discretion.

2.5 Term Agreement

2.5.1 Application. This clause 2.5 applies where the Sales Order provides for a Term Agreement.

2.5.1.1 Linrock grants the Licensee a limited, non-exclusive, non-transferable License during the License Period to download and install the Software and access and use the Product in accordance with the specific details provided in the Sales Order and the terms of the License Agreement.

2.5.2 License Period.

(a) The Term Agreement shall commence and terminate on the dates referred to in the Sales Order .

(b) Unless the Licensee provides notice of non renewal in writing to Linrock at least thirty days prior to the end of the current License Period, at the end of each License Period the License shall be automatically renewed for a further twelve-month License Period which shall commence on the day immediately following the end of the preceding License Period and end on the date which falls one year thereafter, and Licensee must pay to Linrock the License Fee applicable to that License Period.

2.6 Perpetual Agreement.

2.6.1 Application. This clause 2.6 applies where the Sales Order provides for a Perpetual Agreement.

2.6.1.1 Linrock grants the Licensee a limited, non-exclusive, non-transferable License during the License Period to download and install the Software and access and use the Product in accordance with the specific details provided in the Sales Order and the terms of the License Agreement.

2.7 Applicable to both Term Agreements and Perpetual Agreements

This License Agreement does not restrict the use of Product Outputs by the Licensee in any manner whatsoever, subject to the Licensee complying with all applicable laws.

3. License Fees

3.1 At Linrock’s sole discretion, the License Fee shall be as indicated in writing, including but not limited to Sales Orders, invoices or quotations provided by Linrock to the Licensee in respect of the Product.

3.2 A prospective Licensee applying for a Licence shall pay the License Fee in accordance with the Sales Order .

3.3 Once a License Fee or any part of a License Fee has been paid by a Licensee, any such payments are non-refundable.

3.4 Linrock reserves the right to change its License Fees from time to time provided that:

(a) Linrock advises the Licensee of any increased License Fee which will apply to a subsequent License Period at least 5 days prior to the commencement of that License Period; and

(b) Linrock does not apply any increased License Fee to a current License Period.

4. License Restrictions

4.1 The Licensee shall undertake any necessary steps to prevent Unauthorised Use, including Unauthorised Use by Named Persons.

5. Ownership and Intellectual Property Rights

5.1 This License Agreement gives the Licensee limited rights to use the Product and no ownership right is conveyed to the Licensee irrespective of the use of terms such as “purchase” or “sale”.

5.2 Linrock retains all rights, title and interest in the Product and all copies thereof, including copyrights, patents, trade secrets rights, trademarks and other intellectual property rights.

5.3 All rights not specifically granted in this License Agreement are reserved by Linrock.

5.4 The structure, organisation and code of the Software are valuable trade secrets and remain strictly confidential information of Linrock.

6. Limitation of Liability

6.1 Linrock’s cumulative liability to the Licensee or any other party for any loss or damage resulting from any claims, demands, or actions arising out of or relating to (i) this License Agreement; (ii) use or misuse of the Product during the License Period; (iii) downloading or installation of the Product during the License Period; or (iv) any failure of the Product to be fully downloaded or properly installed during the License Period (whether by reason of user error or any failure of the Software or otherwise) shall not exceed the License Fee paid to Linrock during 12 month period prior to the incurrence of the Licensee’s loss or damage.

6.2 For the avoidance of doubt, except as determined by a court of competent jurisdiction, in respect of any period outside of the License Period, Linrock shall have no liability to the Licensee for any loss or damage resulting from any claims, demands or actions arising out of or relating to (i) this License Agreement; (ii) use or misuse of the Product; (iii) downloading or installation of the Software; or (iv) any failure of the Software to be fully downloaded or properly installed (whether by reason of user error or any failure of the Software or otherwise) and if, in any event, a court of competent jurisdiction determines that Linrock is so liable, Linrock’s maximum cumulative liability for any loss or damage is $1.00.

6.3 Linrock shall be relieved of any and all liability where the Product has been revised, changed, modified, or maintained by anyone other than Linrock.

6.4 In respect of any claim between the parties under or in connection with this License Agreement, the parties agree that to the maximum extent permitted by law, the operation of Part 4 of the Civil Liability Act 2002 (NSW) or of any laws having a similar effect in the Commonwealth and other states and territories of Australia with respect to proportionate liability, are excluded and have no application or effect.

7. Patent and Copyright Liability

7.1 Linrock represents and warrants that it is not aware that the Product infringes or misappropriates any copyrights, patents, trade secret rights, trademarks and other intellectual property rights.

7.2 In the event the Product is found to infringe any copyrights, patents, trade secret rights, trademarks or other intellectual property rights, Linrock will have the option, at its expense, to:

a) modify the Product to cause it to become non-infringing;

b) substitute the Product with other another product reasonably suitable to the Licensee, or

c) if none of the foregoing remedies are commercially feasible, at the sole discretion of Linrock, terminate the License for the infringing Product and:

i. Refund any License Fees on a pro rata basis for the remaining License Period in relation to a Term Agreement .

ii. In the case of a Perpetual Agreement that is the subject of a current Maintenance Plan, refund any amounts paid by the Licensee in respect of the Maintenance Plan on a pro-rata basis for any current period of time that the Licensee is provided with a Maintenance Plan.

iii. The Licensee will not be entitled to a refund of any License Fees in the case of a Perpetual Agreement that is not the subject of a current Maintenance Plan.

7.3 Linrock will have no liability for any claim of infringement based on:

a) code contained within the Software which was not included in the Software by Linrock;

b) use of a superseded or altered release of the Product, except for such alteration(s) or modification(s) which have been made by Linrock or under Linrock’s direction, if such infringement would have been avoided by the use of a current, unaltered release of the Product that Linrock provides to the Licensee, or

c) the combination, operation, or use of the Product provided under this License Agreement with programs or data not provided by Linrock if such infringement would have been avoided by the use of the Product without such programs or data.

7.4 Notwithstanding any other matter in this License Agreement, Linrock shall not be liable to the Licensee under this clause if:

(i) the Licensee does not notify Linrock of the other person's claim of infringement of copyright within seven days after becoming aware of the claim;

(ii) Linrock’s ability to defend the claim has been prejudiced by the Licensee’s non-compliance with any of its obligations under this License Agreement;

(iii) the Licensee does not give Linrock reasonable assistance in defending the claim;

(iv) the claim has arisen because of the use of the Product in combination with equipment, materials or computer programs not supplied or approved by Linrock; or

(v) the Licensee does not permit Linrock to have control of the defence of the claim and all related settlement negotiations.

8. LIMITED WARRANTIES

8.1 THE PRODUCT IS PROVIDED ON AN "AS IS" BASIS. LINROCK MAKES NO WARRANTY OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITATION, THE LICENSEE ASSUMES SOLE RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE THE LICENSEE’S INTENDED RESULTS AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM THE PRODUCT. LINROCK MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES.

8.2 Without limiting the above, Linrock expressly excludes any warranty required or implied by law that the Product will perform substantially in accordance with specifications or otherwise as represented by Linrock after the period of 90 days commencing from the earlier of the commencement of the Trial Period and the commencement of the License Period. To the maximum extent permitted by law, unless expressly set out in this agreement, all other warranties are excluded. Any warranties provided by Linrock are subject to and dependent upon the Licensee fully complying with its obligations under this License Agreement.

8.3 Linrock warrants that it holds the proper rights allowing it to license the Product and is not currently aware of any actions that may affect its rights to do so.

8.4 Pursuant to section 64A of the Australian Consumer Law, this subclause applies in respect of any goods or services supplied under this License Agreement which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, provided that this subclause will not apply if the Licensee establishes that reliance on it would not be fair and reasonable. Liability for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by sections 51 to 53 of the Australian Consumer Law) is limited:

a) in the case of goods, to any one of the following as determined by Linrock:

(i) the replacement of the goods or the supply of equivalent goods;

(ii) the repair of the goods;

(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or

(iv) the payment of the cost of having the goods repaired; and

b) in the case of services, to any one of the following as determined by Linrock:

(i) the supplying of the services again; or

(ii) the payment of the cost of having the services supplied again.

9. Software Maintenance and Technical Support

9.1 Perpetual Agreement

9.1.1 This clause 9.1 applies only in relation to a Perpetual Agreement.

9.1.2 For a period of 12 months from the commencement of the License Period, Linrock will provide to the Licensee, the Maintenance Plan.

9.1.3 Prior to the end of the 12-month period from the commencement of the License Period, the Licensee will be given the option to continue the Maintenance Plan for the then current annual fee.

9.2 Term Agreement

9.2.1 This clause 9.2 applies only in relation to a Term Agreement.

9.2.2 During the License Period, Linrock will provide to Licensee the Maintenance Plan.

9.3 Coverage and Continuity

9.3.1 The Maintenance Plan only covers issues or questions resulting directly out of the operation of the Software. Linrock will not provide the Licensee with consultation, assistance, or advice under any other circumstances.

9.3.2 Linrock reserves the right at any time to cease the support of the Product and to alter prospectively the prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the Product.

10. License Compliance

10.1 Linrock has the right to reasonably request up to once per calendar year, and upon request the Licensee must provide at the Licensee’s cost, an unqualified written confirmation of the Licensee’s compliance with this License Agreement executed by:

(a) if the Licensee is an individual, the Licensee;

(b) if the Licensee has an auditor, the Licensee’s auditor; or

11. Severability

11.1 If any provision hereof shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the legality, validity and enforceability of all other provisions of this License Agreement shall not be affected.

12. Tax

12.1 Payments made by the Licensee under this License Agreement exclude any taxes or duties payable in respect of the Software (and any goods or services supplied) in the jurisdiction where the payment is made or received. To the extent that any such taxes or duties are payable by Linrock, the Licensee must pay to Linrock the amount of such taxes or duties in addition to the License Fee unless Licensee is exempt from paying such taxes or duties at the time such taxes or duties are levied or assessed. In such circumstances, the Licensee shall provide to Linrock details of such exemption as reasonably required by Linrock, and Linrock will provide the Licensee with documents requested by Licensee necessary to enable the Licensee to obtain a tax or duty refund or credit, including without limitation a tax invoice.

13. Governing Law

This License Agreement and any other document to which they apply shall be governed by and construed in accordance with the laws of the state of New South Wales, Australia and are subject to the jurisdiction of the courts of New South Wales. Linrock takes no responsibility for changes in the law which affect this License Agreement or the Software.

14. Indemnity and Waiver

14.1 Indemnity

14.1.1 The Licensee agrees to release, indemnify, defend and hold harmless Linrock, including its officers, directors, employees, agents, affiliates, successors and assigns from and against any and all losses, damages, liabilities, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, arising from or relating to the use or misuse of the Product or the breach of this License Agreement. The Licensee agrees that Linrock assumes no responsibility for content created or made available through the Software.

14.2 Waiver

14.2.1 To the extent permitted by applicable law, the Licensee waives, and in no event will Linrock have any liability with respect to claims relating to or arising from the use of the Product, including in relation to content created or made available through the Software. This waiver includes, but is not limited to, claims for personal injury, property damage, or consequential damages of any sort, including:

(a) any and all indirect, incidental, special, punitive, exemplary, or consequential damages or consequential losses of any nature whatsoever (whether or not foreseeable); and

(b) damages or losses, whether direct or indirect.

15. Term

15.1 The term of this License Agreement begins on the date that the Licensee or user agrees to these terms and will continue in full force and effect unless terminated in accordance with clause 16.

16. Termination and Cancellation

16.1 This License Agreement shall terminate:

(a) where the Licensee enters a Trial Period but does not thereafter enter a License Period, at the end of the Trial Period;

(b) where the Licensee holds a Term Agreement, at the end of the current License Period unless terminated earlier in accordance with this clause or the License Period is renewed or extended in accordance with clause 2.5.2;

16.2 Without prejudice to any other rights or remedies Linrock may have, Linrock may terminate this License Agreement without prior notice to the Licensee if Linrock reasonably believes that Licensee has breached or failed to comply with the terms and conditions of this License Agreement. No failure to exercise a right of termination on the part of Linrock shall be deemed a waiver of the Licensee’s breach or failure to comply. Linrock will not be liable to the Licensee for any loss or damage the Licensee suffers because Linrock has exercised its rights under this clause 16.2

16.3 Linrock may exercise its termination rights by:

(a) giving notice to the Licensee by any means, including by email and notice on or within the Product; and or

(b) ceasing to make the Product available to the Licensee.

16.4 The License granted by this License Agreement shall terminate immediately upon termination of the License Agreement.

16.5 Upon termination the Licensee shall, and shall ensure that user of the Product, including each each Named User, destroys all copies of the Product and all of its component parts or otherwise return or dispose of such material in the manner directed by Linrock.

16.6 All rights accrued by either party at termination, including the right provided for in clauses 5, 7 and 8 of this Licence Agreement, survive termination of this License Agreement.

17. No Assignment or Amendment

17.1 The Licensee may not amend this License Agreement without the prior written consent of Linrock. Licensee may assign this License Agreement to succeeding parties in the case of a merger, acquisition or change of control so long as in doing so, Linrock is notified in writing within 90 days of the closure of such transaction. If the Licensee merges into or with a direct competitor of Linrock, as determined in Linrock’s sole discretion, then this License Agreement will automatically terminate as of the effective date of such merger upon notice being provided in writing by Linrock.

17.2 Linrock may assign or transfer its rights and obligation under this License Agreement without consent of the Licensee.

17.3 Linrock may amend this License Agreement at any time by giving notice in writing to Licensee detailing the amendments, provided that any amendments will not be effective until 30 days after notice of the amendments has been provided to the Licensee.

18. Entire Agreement

18.1 This License Agreement contains the entire agreement between Linrock and the Licensee related to the Product and the Software and supersedes all prior agreements and understandings, whether oral or written. It may be amended only with the written consent of Linrock.