End User License Agreement

END USER LICENSE AGREEMENT

This End User License Agreement (the “EULA”) is a legal agreement between you (“You” or “Your”) and Click n Collect Pty. Ltd. located at 29-35 Wellington Street, North Hobart TAS 7000, Australia, or any one of its subsidiaries or affiliated companies (collectively referred to as “Click n Collect") and sets forth the terms and conditions on which Click n Collect makes the Licensed Software and the Software Support Services available to You and Your use of them.

For the purposes of this EULA, the term You or Your shall include any related body corporate and any third party service providers allowed to access and use the Licensed Software for the purposes of providing support to Your business operations.

Click n Collect agrees to provide Software to You, and You agree to pay for them in accordance with this EULA as follows:

1. Entire Agreement. The Parties hereto agree to the terms and conditions of this EULA and that beyond this EULA to the maximum extent permitted by law, this EULA shall exclude any further warranties or conditions or terms that may be implied by law. This EULA contains all the terms which the Parties have agree in relation to the subject matter of this EULA and supersedes any prior oral agreements, representations or understandings between the parties in relation to such subject matter. If besides this EULA You have a signed and executed a written agreement with Click n Collect this EULA shall coexist with, and shall not supersede, the signed and executed agreement with Click n Collect. To the extent that the provisions of this EULA conflict with the provisions of the signed and executed agreement, the conflicting provisions in the signed and executed agreement shall govern.

2. EULA Changes. Click n Collect reserves the right, in its sole and absolute discretion, to change, revise, update, modify, add to, supplement, or delete certain terms of this EULA at any time for security, legal, best practice or regulatory reasons. Such changes will be effective with or, as applicable, without prior notice to You. You can review the most current version of this EULA by clicking on the “EULA” link located on the on clickncollect.com web site. You are responsible for checking this EULA periodically for changes. If any future changes to this EULA are unacceptable to You or cause You to no longer be in agreement or in compliance with this EULA, You may notify Click n Collect to seek an amendment to the EULA or terminate this EULA in accordance with Clause 18 (“Terminating Agreement”). Your continued use of the Licensed Software following any revision to this EULA constitutes Your complete and irrevocable acceptance of any and all such changes.

3. Term. You will have deemed to have accepted the terms of this EULA from the earlier of the date You took delivery of the Licensed Software, You downloaded and/or installed the Licensed Software, You first started using the Licensed Software, or You made your first full or part payment towards Software Support Services Fees (the “Commencement Date”). This EULA is effective from the Commencement Date, until this EULA is terminated.

4. Definitions and Interpretations. In addition to terms otherwise defined in this EULA and unless the context indicates the contrary, the following terms shall have the following meanings; Affiliate means a subsidiary or holding company of either Party to this EULA and any subsidiary or such holding company.

Business Day refers to the business hours on the days between Monday to Friday each week excluding statutory public holidays as it is in the where Your office is located.

Commencement Date is the date as per Clause 3 (Term) and is the due date for the payment for the first Service Payment Period of the Software Support Services Fee.

Confidential Information means this EULA, the Data, the Intellectual Property and any other information (whether orally, electronically or in writing) or material of either Party relating to their trade secrets, business, systems, programs, software or information technology systems, finances, operations, properties, products, assets or affairs of a Party (or any of its affiliates, or related bodies, corporates or entities) or learnt or acquired by the other Party (or any of its affiliates) under or in connection with this EULA, whether orally, electronically or in writing other than such information which:

(a) Was in the public domain at the time of its disclosure to or acquisition by the receiving Party; (b) Became part of the public domain after its disclosure to or acquisition by the receiving Party, otherwise than through a disclosure in breach of an obligation of confidentiality of the other Party or any of its Related Bodies Corporate; (c) Is in, or came lawfully into, the possession of the other Party wholly independently of and not related in any way to this EULA or the transactions and activities contemplated by it and not as a result of a disclosure in breach of an obligation of confidentiality; or (d) Was independently known by the receiving Party at the time of its disclosure to or acquisition by the other Party.

Data means Your data and Your end consumers’ data processed on the Licensed Software. Documentation means any and all information, documents, or materials made available to You by Click n Collect for use with the Licensed Software and Software Support Services, including any information made available online, any operations manual made available by Click n Collect at any time, and any information on Licensed Software update and upgrades.

Force Majeure Event are the events that are beyond the reasonable control of a Party including events such as strikes, lockouts, blockade, embargo, picket or other industrial action or inaction (whether lawful or not), riots, or other form of civil disturbance, theft, fire, floods, earthquakes, other inclement weather conditions, major accidents, epidemics, acts of God, act of authority, act of war, national emergencies, terrorist acts, government action or inaction, governmental regulations, changes in law, insolvency of a subcontractor of the relevant Party, any consequence of a virus or malicious code or action, that could not have been prevented by the use of the then current commercially available anti-virus software, communication outage, communication line failure, electrical surge, power failure.

Helpdesk is Click n Collect’s contact centre, which You may use for lodging Licensed Software related Issues. The Helpdesk contact details are specified in Clause 9 (Helpdesk). Intellectual Property means all intellectual property, including those specified in this EULA, all copyright, patents, trade-marks, design rights, trade secrets, domain names, knowhow and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application.

Licensed Software is the application, the software, the associated Software Upgrades and Software Updates, made available or which will be made available to You by Click n Collect Pty Ltd pursuant to this EULA and shall include in its meaning to use and all software related materials, and Documentation provided to You.
Representatives means the employees, agents, contractors, officers, professional advisors, or other intermediaries of a Party, and those of any Affiliate.

Service Payment Dates are the dates that fall on subsequent Service Payment Periods from the Commencement Date of this EULA and are the dates by which You shall pay the Software Support Services Fees.

Services Payment Period the period between payments for the Software Support Services Fees, as determined within the agreed Software Support Services Fees. Software means all programming code, the Licensed Software including all software modules used in relation to the Licensed Software.

Software Support Services Fee means Your software support services fee per Payment Period as per Your last software support services fee paid or in the absence of which the fee for software support services as per Your last provided quote for the same services to be provided by Click n Collect.

Software Support Services means the software support services which has been or will be provided to You by Click n Collect as per Clause 8 (Software Support Services) at a Software Support Services Fee in relation to Your use of the Licensed Software and the identification and resolution of errors in the Licensed Software, including providing access to the Software Updates and the Software Upgrades.

Software Upgrade means a major version upgrade of the Licensed Software that contains significant differences from the previous Licensed Software version.

Software Update means a hotfix, patch or minor version update to the Licensed Software. Warranty Period is the time frame that the warranty applies.

Unless the context indicates otherwise, in this EULA: (a)Reference to any legislation, statute or any provision of any legislation or statute shall include any modification consolidation, amendment, replacement, codification or re-enactment of such legislation, statute or provision, or any legislative provisions substituted for regulations, orders or instruments issued under the legislation, statute or provision, and all other legislation and statutory instruments issued under such legislation or such provision; (b) Words denoting the singular shall include the plural and vice versa; (c) Words denoting individuals shall include corporations, firms, unincorporated bodies, authorities, instrumentalities, associations, trustees, instrumentalities, and partnerships and vice versa; (d) The words “including” and “includes” are not words of limitation; (e) A reference to anything (including but not limited to any right) includes a part of that thing; (f) A right includes a remedy, privilege, authority or power; (g) Reference to parties, parts, and clauses are reference to parties, parts, and clauses to this EULA as modified or varied from time to time; (h) References to any document, deed or agreement shall include references to such document, deed or agreement as amended, novated, supplemented, varied or replaced from time to time; (i) a provision of this EULA must not be construed to the disadvantage of a party because that party was responsible for the preparation of the provision; (j) References to any party to this EULA or any other documents, deed of agreement shall include its successors, party's executors, party’s legal personal representatives, administrators or permitted assigns; (k) All references to dates and times are as per the date and time of the state where Your registered office is located; (l) All references to ‘$‘ and ‘dollars’ are to the lawful currency of United States Dollars; (m) Month means a calendar month; (n) Where an act would be required to be done, or a time limit or period would expire, on a day which is not a Business Day, the act may be done, or the limit or period expire, on the following Business Day; (o) A reference to a clause number (and/or letter) is a reference to a clause of this EULA; (p) Headings, index, table of contents or marginal notes are for convenience only and do not form part of this EULA or otherwise affect the interpretation of this EULA.

5. Relationship Between Parties. Nothing in this EULA constitutes nor may be deemed to constitute a partnership or joint venture or agency arrangement between the parties. The Parties may not in any respect represent the other Party or enter into any agreement or other commitments on its behalf. The Parties will deal with each other in good faith and will diligently observe and perform their respective obligations and commitments under this EULA.

6. Fees, Payments, and Default. You agree to pay all Fees and Payments as outlined and contained in this EULA.
(a) All Payments due to Click n Collect shall be paid in Dollars to an account designated by Click n Collect. (b) All Fees will exclude all applicable taxes which are paid by You. (c) All Invoices will be sent via e-mail to Your nominated e-mail address. All invoices will be issued fourteen (14) days in advance of each Services Payment Date.
(d)All Payments shall be due and payable on the Services Payment Date. Click n Collect may, with thirty (30) days’ notice, change the fee structure of the Software Support Services Fees. (e) No allowance will be made for any Licensed Software, or portion thereof which is claimed not to have been used. Should You not pay Click n Collect any amount owing under this EULA on time, You are in default, (called “Default”), and in breach of this EULA. Click n Collect’s obligations under this EULA are voided if You are in Default, and all work performed while You are in Default may be charged separately to You. Should You be in Default, Click n Collect has the right to charge a late payment fee. You may assign this EULA to an Affiliate or to any entity that succeeds to Your interest so long as such assignee agrees to the terms of this EULA and as long as You continue to make regular timely payments of the Software Support Services Fees. Click n Collect may assign its rights under this EULA without condition.

7. Your Responsibilities. You are responsible for any and all activities that occur on the Licensed Software and shall be exclusively responsible for the supervision, management and control of the use of the Licensed Software, including but not limited to: (a) using the Licensed Software as specified in the Documentation; (b) providing proper equipment environment, including electrical power, telephone and data communications, air conditioning, cleanliness, and the like; (c) assuring proper machine configuration, program installation, audit controls and operating methods; (d)establishing adequate backup plans, based on alternate procedures regarding use of the Licensed Software in the event of a malfunction; (e) implementing sufficient procedures and checkpoints to satisfy Your requirements for security and accuracy of input and output as well as restart and recovery in the event of a malfunction; (f)assuring proper and authorised use of any Software; and (g) notifying Click n Collect immediately of any unauthorized use of the Licensed Software and/or any unauthorized use or disclosure of any Your data;

8. Software Support Services. In exchange for Your payment of the Software Support Services Fee per Payment Services Period, Click n Collect shall provide You with the Software Support Services consisting of providing You with the Licensed Software and resolving any issues or defects in the Licensed Software including providing You with access to the Software Updates and the Software Upgrades during the Term in accordance with this EULA. The Software Support Services shall not include the provision of training services whether in relation to the Licensed Software or otherwise. You shall provide unhindered and safe access to the Licensed Software for Click n Collect to provide Software Support Services. You acknowledge that Click n Collect is not required to perform Software Support Services in respect of any damage under Warranty which is caused by malicious damage, caused by wilful misconduct or gross negligence, caused by a Force Majeure Event, or covered by circumstances under Your reasonable control. Click n Collect may suspend (or require that You suspend) access to the Licensed Software and Software Support Services without liability if: (a) Click n Collect is required by law or a regulatory or government body to suspend the Software Support Services; (b)You are in breach of this EULA and such breach is not rectified within thirty (30) days from notice of such breach; (c) A user violates this EULA; (d) There are suspicious activities that require investigation, or (e)Click n Collect or You have reason to suspect any user is engaged in activities that may violate this EULA, applicable laws, or Your Customer Policies.

9. Helpdesk. You shall ensure that all requests for Software Support Services that You may make from time to time shall be made through the Helpdesk. You shall not use the Helpdesk for any other purpose. You will access the Helpdesk to log any support issues via email to “support@clickncollect.com”. The Helpdesk shall use all reasonable endeavours to resolve issues raised promptly. For any failures in support response or resolutions You can call: If residing in Australia: 1800 595 495, OR otherwise If in USA or America: +1-833-659-2445 If in UK or Europe: +44-800-060-8074 If in HK or Asia: +852-800-931-851 If in New Zealand: 800-032-09

10. Licensed Software. In exchange for Your payment of the Software Support Services Fees Click n Collect grants to You a limited, non-exclusive, world-wide, royalty free, non-transferable, terminable right to hold and use the Licensed Software, Software Support Services and the related Documentation during the Term subject to and in accordance with the terms and conditions set out in this EULA.

As applicable, certain parts of the Software may be using third party features, some of which are managed by third-party providers for which additional terms and/or costs may apply. You must comply with such additional terms. Your right to hold and use the Licensed Software are restricted solely and exclusively to You and may not be subleased, sublicensed, sold, offered for sale, disposed of, encumbered or mortgaged without Click n Collect’s written permission, except that the rights and use of the Licensed Software may be assigned by You to a purchaser of all or substantially all of Your assets or capital stock. You may permit consumers to use the Website elements of the Licensed Software as part of the normal process of using the Locker System.

Except as expressly permitted by this EULA, and to the extent that applicable laws, prevents Click n Collect from restraining You from doing so, You must not: (a) use the Licensed Software or permit the Licensed Software to be used for any purpose other than in the normal use and in the normal conditions of use of the Licensed Software for the purpose it was designed; (b) use the Licensed Software for any purpose or in any manner other than as set out in this EULA and with all Click n Collect’s requirements and recommendations respecting the Licensed Software and all laws, ordinances and regulations relating to the possession, use, or maintenance of the Licensed Software, including registration and/or licensing requirements if any; (c) use the Licensed Software in any way that could damage the reputation of Click n Collect or the goodwill or other rights associated with the Licensed Software; (d) permit any third party to use the Licensed Software other than as set out in this EULA; (e) publish, transmit, perform, sub-license, distribute, or circulate the Licensed Software, or any associated software applications, tools, data, or Documentation thereof; (f) copy, reproduce, catalogue, or create any derivative works based upon the Licensed Software or the Documentation; (g) alter, make error corrections to or otherwise modify or adapt the Licensed Software or the Documentation and other materials made available by Click n Collect, or (h) de-compile, disassemble or otherwise reverse engineer the Licensed Software or permit any third party to do so; or (i) modify or remove any copyright or proprietary notices on the Licensed Software or the Documentation. (j) take any actions, whether intentional or unintentional, that may circumvent, disable, damage or impair the Licensed Software or allow or assist a third party to do so.

You shall ensure at all times that Your Representatives do not make or produce any unauthorised copies, duplications, derivatives, or alterations of the Licensed Software. Notwithstanding the limitations of making copies of the Licensed Software in this EULA You may make a copy of the Licensed Software for archival purpose only and You may install a copy of the Licensed Software if the You change to a different workstation, only if You immediately uninstall the Licensed Software from the previous workstation.

The provisions of this clause shall remain in force after termination of this EULA.

11. Licensed Software Changes. Click n Collect may modify the Licensed Software for any reason or without any specific reason, at any time and at its entire discretion, in particular for technical reasons such as upgrades, updates, maintenance operations and/or resets to improve and/or optimize the Licensed Software. Click n Collect’s channel partners and associated service providers shall have no obligation to furnish any maintenance or customer support with respect to the Licensed Software. You agree that the Licensed Software may install or download the modifications automatically. Click n Collect shall have no obligation to release Software Upgrades or Software Updates with features requested by You or to take into account any opinions of You in relation to plans for the release of Software Upgrades and Software Updates. You shall at least once every two (2) years apply the latest Software Upgrade to the Licensed Software.

12. Software Warranty. Click n Collect warrants for the twelve (12) month period following the start of the term of this EULA, the Licensed Software shall be free from material programming defects. This Software Warranty shall become void in the event of the misuse of the Licensed Software or its use for any purpose for which it is not suitable or any use outside the terms of this EULA.

If at any time during the Software Warranty period above You shall discover one or more defects in the Licensed Software or any other respect in which the Licensed Software fails to conform to the provisions of any Software Warranty contained in this EULA, You shall give written notice and adequate documentation to Click n Collect within the Warranty Period. The remedy to You shall be that Click n Collect shall use reasonable efforts to attempt to correct such defect by, among other things, supplying You with such additions, modifications, or adjustments to the Licensed Software, alternate procedures for use of the Licensed Software, as may be necessary to keep the Licensed Software in operating order in conformity with the Software Warranties. You assume any risk beyond those not covered by this EULA as to the quality and performance of the Licensed Software.

13. Intellectual Property. You acknowledge that the Licensed Software, any and all copies of Licensed Software, the Software Support Services, the Documentation, are proprietary to Click n Collect and have been developed as a trade secret by Click n Collect and are Intellectual Property and owned by Click n Collect. Click n Collect’s Intellectual Property is protected by national and international laws, copyright treaties and conventions and other laws. Except as expressly set forth in this EULA, all rights not granted hereunder to You are expressly reserved by Click n Collect. The parties acknowledge that the performance of this EULA may result in the development of new Intellectual Property including secret concepts, methods, techniques, processes, adaptations and ideas. The parties agree that the same shall belong solely and exclusively to Click n Collect’s Intellectual Property without regard to the origin. This EULA confers no title or ownership in the Licensed Software or any other intellectual property right and should not be construed as a sale of any rights in the Licensed Software or a sale of any other Intellectual Property Right. The provisions of this clause shall remain in force after termination of this EULA.

14. Secrecy. The Parties, including their Representatives shall not reveal, provide or otherwise make available to any third Party any Confidential Information. The Parties shall take all necessary precautions reasonably calculated to prevent an unauthorized disclosure or use of Confidential Information by the other Party’s Representatives, or customers.
The Parties will ensure that any Confidential Information provided to it by the other Party is only used for the proper purpose of and in the ordinary course of performing this EULA. At minimum Parties agree to hold and use any Confidential Information in the same manner as it deals with its own Confidential Information. This clause of Secrecy shall be waived by the Parties if a Party is required to disclose information by law or by stock exchange rules or pursuant to any order of court or other competent authority or tribunal, or is disclosed to a Party´s Representatives, provided such persons are bound by a duty of confidentiality under the same or further reaching secrecy terms and conditions as this EULA in relation to any Confidential Information disclosed. The Parties will provide prompt notice to the other Party as soon as a Party is required to disclose information subject to this clause, or if a Party becomes aware of any other impending, occurred, or suspected breach of this clause.
Click n Collect can indicate in its marketing and promotional materials provided to others that You are using Click n Collect’s Locker Licensed Software and the Software Support Services. The provisions of this clause shall remain in force after termination of this EULA.

15. Force Majeure. The Parties shall not be liable for loss, injury or damage of any kind or for any consequences thereof to any person or entity resulting from any use, condition, performance, defect or failure in the delivery or use of the Licensed Software and related Software Support Services or for any loss or damage of any kind or for any consequences thereof resulting from delay or inability to deliver caused by a Force Majeure Event, whether directly or indirectly. The provisions of this clause shall remain in force after termination of this EULA.

16. Limitations of Liability. Each Party is liable if the liability was occasioned by the wilful misconduct or gross negligence of a Party. Each Party’s liability shall be limited to direct damages and neither Party will be liable to the other for any indirect, special, accidental, incidental or consequential damages, whether based on breach of contract, tort, statutory duty, restitution, representation or otherwise, whether or not that Party has been advised of the possibility of such damages. For the avoidance of any doubts, in no event shall Click n Collect be liable for suspension of the use of the Licensed Software or Software Support Services, lost or corrupted data, downtime, lost profits, loss of business, business interruption, depletion of goodwill, replacement service, or any indirect, special, incidental, consequential, punitive, injury or damage of any kind to any person or entity resulting from any use, condition, performance, defect or failure in the Licensed Software or Software Support Services. Regardless of any wilful misconduct or gross negligence, Click n Collect is not liable under this clause if the liability was part or fully caused by or was in connection with: Your breach, or none compliance with any of Your obligations under this EULA; occurrence of a Force Majeure Event; (c) Your improper use, misuse, accident or failure to use the Licensed Software in a manner for which it was designed or contemplated; (d) an alterations or modifications to the Licensed Software that was not authorised or approved by Click n Collect in writing; (e) a potential defect of the Licened Software which You have not immediately notified Click n Collect of, or if You have delayed providing access to the Licensed Software to Click n Collect after You have notified Click n Collect of the potential defect; or (f) Your failing to comply with any Documentation or failing to adhere to any recommendation or instructions made by Click n Collect. Notwithstanding the limitations of liability, Your sole remedy in the event of a dispute with Click n Collect, Click n Collect’s Channel Partners and Associated Service Providers is to cease the use of the Licensed Software; and if applicable seek damages for Your losses. In no event shall You, Click n Collect, its Affiliates, Click n Collect’s Channel Partners and Associated Service Providers be liable for damages, exceeding the lower of any amount You have paid to Click n Collect for the Licensed Software and Software Support Services during the twelve (12) months immediately prior to the time Your cause of action arose, or the amount of ten (10) thousand Dollars. For purposes of this clause Click n Collect’s Channel Partners and Associated Service Providers are third party beneficiaries to the limitations of liability specified herein and they may enforce this EULA against You. Beyond this clause and to the fullest extend permissible under the applicable law, Click n Collect, Click n Collect’s Channel Partners and Associated Service Providers shall not be liable for loss or damage suffered in connection with the use of the Licensed Software or any related Service.
Nothing in this clause shall affect either Party’s liability for death or personal injury arising from the Party’s wilful misconduct or gross negligence, nor any other liability which cannot be excluded or limited under applicable law. You acknowledge that the provisions of this clause are reasonable, and You will accept any risk accordingly. The provisions of this clause shall remain in force after termination of this EULA.

17. Breach of Agreement. Each Party is responsible for all of the acts and omissions of its Representatives and any acts or omissions on their part that would if done be deemed for all purposes to be done by the Party and where applicable will be a breach by the Party of this EULA on the part of the Party. You are solely responsible for any damage caused to Click n Collect, channel partners and associated service providers and subcontractors, other users of the Licensed Software or any other individual or legal entity as a result of Your violation of this EULA. You hereby agree to defend, indemnify and keep indemnified Click n Collect and its Affiliates, their channel partners and associated service providers and their subcontractors against any claim or alleged claims, liabilities, losses, damages and all costs (including lawyers‘ fees), directly or indirectly attributable to Your fault and /or resulting from a violation or any provision of this EULA or Your use or misuses of the Licensed Software, Click n Collect reserves the right to take sole responsibility, at its own expense, for conducting the defence of any claim for which You agreed to indemnify Click n Collect. The provisions of this clause shall remain in force after termination of this EULA.

18. Terminating Agreement. In addition to any other remedies available to either party, a party shall have the right to terminate this EULA for any reason with six (6) months’ notice; if the other Party is in breach of this EULA and such breach is not rectified within thirty (30) days from notice of such breach; with notice, if a Force Majeure Event persists for thirty (30) days or more from notice date. Not withstanding the above, either Party shall have the right to terminate this EULA with immediate effect by written notice to the other Party if: the other Party ceases to carry out its business; or the other Party ceases to be able to pay its debts as they become due; or any step is undertaken in bankruptcy, insolvency winding up, debt enforcement, composition or corporate reorganization proceedings against the other Party; or the whole or part of the other Party’s assets, operations or business is seized or placed under embargo or administration; or payments by the other Party are suspended under applicable insolvency protection procedures. Upon termination for any reason, You must immediately uninstall the Licensed Software and destroy all copies of the Licensed Software in Your possession, and upon request of Click n Collect certify the destruction of, all copies of the Software including all components of it in Your possession. Notwithstanding anything to the contrary within this EULA, the Software Support Services Fees shall become due immediately upon the occurrence of an insolvency event.

19 Effect of Termination. On termination of this Agreement: Click n Collect will stop supplying the Software Support Services; where applicable and subject to any licence terms, You must stop using the Licensed Software; and Click n Collect is entitled to receive all outstanding amounts due under this Agreement but not paid. Notwithstanding any other clause in this Agreement, if Click n Collect terminates this Agreement under Clause 18 (Terminating Agreement) and You have prepaid any Fees for an applicable Service Payment Period, Click n Collect will reimburse You on a pro-rated basis for any Services You do not receive.

20. Notices. Notices shall be given in the English language. If You have routine communications to Click n Collect regarding the operation of the Licensed Software and provided Software Support Services, You should send it to Click n Collect support team using email “support@clickncollect.com” or to Click n Collect’s postal address below, or to such address or email address as the Party from time to time may notify the other Party for the purpose of this clause. If You want to give a legal notice, including notice regarding termination of this EULA, or other matters, You should send it by electronic mail to “admin@clickncollect.com” and first class registered or certified post, or reputable overnight courier with delivery receipt obtained to: Click n Collect Pty Ltd, Attention: Olav Uittenbosch, Click n Collect Pty Ltd, 29-35 Wellington Street, North Hobart, TAS 7000, Australia. or to such address or email address as the Party from time to time may notify the other Party for the purpose of this clause. Notices are deemed received on the day receipt is confirmed by the receiving Party, in case of a letter on the seventh (7th) Business Day after posting, in case of an electronic communication upon receipt by the recipient, or if that time does not fall on a Business Day, as of the beginning of the first Business Day following the time posted or delivered. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day.

21. Waiver. The failure of either Party at any time to enforce any of the terms or provisions of this EULA or by law or to exercise any right under this EULA or by law does not constitute a waiver of any such right or affect the Party’s privilege to enforce that right. No term or provision shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Party is not liable for any loss of the other Party caused or contributed to by the waiter, exercise, attempted exercise, failure to exercise or delay of the exercise of a right.

22. Consent. Each Party may exercise a right or remedy or give or refuse its consent in any way it considered appropriate unless this Agreement expressly states otherwise.

23. Construction. No rule of construction applies to the disadvantage of a Party because that Party was responsible for the preparation of, or seeks to rely on, this Agreement or any part of it.

24. Variation of Agreement. Changes in this Agreement may only be changed in writing, signed and executed on behalf of both Parties.

25. Severability. If any court of competent jurisdiction or competent authority finds that any provision of this EULA is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this EULA shall not be affected. If any invalid, unenforceable or illegal provision of this EULA would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable to reflect Click n Collect’s initial intentions. The provisions of this clause shall remain in force after termination of this EULA.

26. Survival. The following terms shall survive expiration or termination of this EULA: all clauses in this EULA that have been specified to remain in force after termination of this EULA, all terms of this EULA requiring You to pay any Software Support Services Fees provided prior to the time of expiration or termination or requiring You to pay an early termination fee, and all other provisions of this EULA that by their nature are intended to survive expiration or termination of this EULA.

27. Governing Law. To the extent permitted by applicable law, this EULA and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of the state of Victoria in Australia. This EULA shall not be governed by the Nation Convention on Contracts for the International Sale of Goods. You irrevocably agree that the courts of the state of Victoria in Australia have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the EULA or its subject matter or formation (including non-contractual disputes or claims), except that Click n Collect may seek to enforce any judgment anywhere in the world where You may have assets. You irrevocably agree that a judgment or order of any court referred to in this clause is conclusive and binding upon You and may be enforced against You in the courts of any other jurisdiction. Each Party agrees that it will not bring a claim under this EULA more than two (2) years after the event giving rise to the claim occurred. You acknowledge and agree that notwithstanding the fact that this EULA is governed by the laws of the state Victoria in Australia, You may be subject to additional laws in other jurisdictions with respect to Your use of the Licensed Software. You will comply with the laws of any jurisdiction that apply to the Licensed Software. The provisions of this clause shall remain in force after termination of this EULA.

28 Representations. Each party represents and warrants that it has full power and authority to enter into this EULA; and it shall obtain and maintain in effect all permits, licenses and authorizations necessary to perform its obligations under this EULA.