Software License Agreement
Effective starting: August 6, 2019

This QC 4 NDIS Software License Agreement (the “Agreement”) is between you and the QC 4 NDIS entity that owns the Software that you are accessing or using (“QC 4 NDIS” or “we”). If you are agreeing to this Agreement not as an individual but on behalf of your company, government, or other entity for which you are acting (for example, as an employee or governmental official), then “you” means your entity and you are binding your entity to this Agreement. QC 4 NDIS may modify this Agreement from time to time, subject to the terms in Section 21 (Changes to this Agreement) below.

The “Effective Date” of this Agreement is the date which is the earlier of (a) your initial access to or use of the Software (as defined below) or (b) the effective date of the first Order referencing this Agreement.

By clicking on the “I agree” (or similar button or checkbox) that is presented to you at the time of your Order, or by using or accessing the Software, you indicate your assent to be bound by this Agreement. If you do not agree to this Agreement, do not use or access the Software.

1. Scope of Agreement

1.1. Software. This Agreement governs your initial purchase of QC 4 NDIS Software, Support and Maintenance for the Software, and any Additional Services, as well as any future purchases made by you that reference this Agreement. This Agreement includes each Order, the QC 4 NDIS Policies, the Product-Specific Terms, and any other referenced policies and terms. The Software and its permitted use are further described in the Documentation. The term “Software” includes Documentation unless otherwise specified.

1.2. Cloud Products. This Agreement does not apply to QC 4 NDIS hosted or cloud-based solutions (currently designated as “Cloud” deployments), use of which requires a separate agreement with QC 4 NDIS.

2. Accounts; Authorized Users

2.1. Account Registration. You must register for an account with us in order to place Orders or access or receive Software. Your registration information must be accurate, current and complete. You must keep your registration current so that we may send notices, statements and other information to you by email or through your account. You are responsible for all actions taken through your account, including Orders made or Apps enabled (which may incur fees).

2.2. Authorized Users. Only Authorized Users may access and use the Software. Some Software may allow you to designate different types of Authorized Users, in which case pricing and functionality may vary according to the type of Authorized User. You are responsible for compliance with this Agreement by all Authorized Users, including what Authorized Users do with your data, and for all fees incurred by Authorized Users (or from adding Authorized Users). All use of Software must be solely for the benefit of you or your Affiliates (except as expressly permitted in Section 2.3 below) and must be within the Scope of Use.

3. Use of the Software

3.1. Your License Rights. Subject to the terms and conditions of this Agreement, QC 4 NDIS grants you a non-exclusive, non-sublicensable and non-transferable license to use the Software during the applicable License Term for your own business purposes, in accordance with this Agreement, your applicable Scope of Use, the Documentation and all Laws.

3.2. Restrictions. Except as otherwise expressly permitted in this Agreement, you will not: (a) reproduce, modify, adapt or create derivative works of any part of the Software; (b) rent, lease, distribute, sell, sublicense, transfer, or provide access to the Software to a third party; (c) use the Software for the benefit of any third party; (d) incorporate the Software into a product or service you provide to a third party; (e) interfere with any license key mechanism in the Software or otherwise circumvent mechanisms in the Software intended to limit your use; (f) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the Software, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (g) remove or obscure any proprietary or other notices contained in the Software; (h) use the Software for competitive analysis or to build competitive products; (i) publicly disseminate information regarding the performance of the Software; or (j) encourage or assist any third party to do any of the foregoing.

3.3. Number of Instances. QC 4 NDIS software is provided to you under a Software As A Service (SAAS) model. QC 4 NDIS provide, host and manage the environment for your hosted software as a single instance for your use. You cannot obtain a copy of QC 4 NDIS SAAS software, nor install a private instance of the SAAS software.

3.4. Product-Specific Terms. Some Software may be subject to additional terms specific to that Software as set forth in the Product-Specific Terms. By accessing or using a product covered by the Product-Specific Terms, you agree to the Product-Specific Terms.

3.5. Attribution. In any use of the Software, you must not remove, obscure, or alter in any way the following attribution to QC 4 NDIS or QC 4 NDIS on all user interfaces to the Software: These references must in every case remain in the same format as delivered in the Software.

3.6. System Requirements. You are solely responsible for ensuring that your systems meet the hardware, software and any other applicable system requirements for the Software as specified in the Documentation. QC 4 NDIS will have no obligations or responsibility under this Agreement for issues caused by your use of any third-party hardware or software not provided by QC 4 NDIS.

3.7. Indemnification by You. You will defend, indemnify and hold harmless QC 4 NDIS from and against any loss, cost, liability or damage (including attorney’s fees) arising from or relating to any claim brought against QC 4 NDIS (a) arising from or related to your breach of Section 2.3 (Secondary Users) or any claims or disputes brought by Secondary Users arising out of their use of the Software; (b) by a third party related to your Customer Materials, as defined in Section 6.2(b); or (c) by a third party relating to any non-QC 4 NDIS content or data used by you or your Secondary Users in connection with the Software. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonably necessary cooperation of QC 4 NDIS at your expense.

4. Apps and Third-Party Products.

4.1. Third Party Products. You (including your Authorized Users) may choose to use or procure other third-party products or services in connection with the Software, including Third Party Apps (see Section 4.2 (Marketplace Apps)) or implementation, customization, training or other services. Your receipt or use of any third-party products or services is subject to a separate agreement between you and the third-party provider. If you enable or use third-party products or services (including Third Party Apps as referenced in Section 4.2 (Marketplace Apps)) with the Software, you acknowledge that the third-party providers may access or use your data as required for the interoperation of their products and services with the Software. This may include transmitting, transferring, modifying or deleting your data, or storing your data on systems belonging to the third-party providers or other third parties. Any third-party provider’s use of your data is subject to the applicable agreement between you and such third-party provider. We are not responsible for any access to or use of your data by third-party providers or their products or services, or for the security or privacy practices of any third-party provider or its products or services. You are solely responsible for your decision to permit any third-party provider or third-party product or service to use your data. It is your responsibility to carefully review the agreement between you and the third-party provider, as provided by the applicable third-party provider. QC 4 NDIS DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD-PARTY PRODUCTS OR SERVICES (WHETHER SUPPORT, AVAILABILITY, SECURITY OR OTHERWISE) OR FOR THE ACTS OR OMISSIONS OF ANY THIRD-PARTY PROVIDERS OR VENDORS.

4.2. Marketplace Apps. A variety of Apps that may be used with the Software, including Third Party Apps. QC 4 NDIS Apps for Software are considered “Software” under this Agreement (unless QC 4 NDIS specifies otherwise through the QC 4 NDIS Marketplace). Third Party Apps are not Software and remain subject to their own applicable Vendor Terms. QC 4 NDIS may enable interoperation of the Software with Third Party Apps as set forth in Section 4.1 (Third Party Products). The terms “Apps”, “QC 4 NDIS Apps”, “Third Party Apps”, “Vendor” and “Vendor Terms”

5. Privacy Terms.

QC 4 NDIS may collect certain data and information from you and Secondary Users in connection with your and Secondary Users’ use of the Software and otherwise in connection with this Agreement. All such data and information will be collected and used by QC 4 NDIS in accordance with QC 4 NDIS Privacy Policy, which you acknowledge.

6. QC 4 NDIS Commitments

6.1. Support and Maintenance. During the period for which you have paid the applicable Support and Maintenance fee, QC 4 NDIS will provide Support and Maintenance for the Software in accordance with the Support Policy. Support and Maintenance for Software includes access to New Releases, if and when available, and any references to “Software” in this Agreement include New Releases.

6.2. Additional Services. Subject to this Agreement, you may purchase Additional Services from QC 4 NDIS, which QC 4 NDIS will provide to you pursuant to the applicable Order. Additional Services may be subject to additional policies and terms as specified by QC 4 NDIS

(a) QC 4 NDIS Deliverables. QC 4 NDIS will retain all right, title and interest in and to any materials, deliverables, modifications, derivative works or developments that QC 4 NDIS provides in connection with any Additional Services (“QC 4 NDIS Deliverables”). You may use any QC 4 NDIS Deliverables provided to you only in connection with the Software, subject to the same usage rights and restrictions as for the Software. For clarity, QC 4 NDIS Deliverables are not considered Software, and any Software (including any New Release) is not considered an QC 4 NDIS Deliverable.

(b) Customer Materials. You agree to provide QC 4 NDIS with reasonable access to your materials, systems, personnel or other resources (including your instances of the Software) as reasonably necessary for QC 4 NDIS provision of Additional Services (“Customer Materials”). If you do not provide QC 4 NDIS with timely access to Customer Materials, QC 4 NDIS performance of Additional Services will be excused until you do so. You retain your rights in your Customer Materials, subject to QC 4 NDIS ownership of any underlying Software, QC 4 NDISDeliverables or other QC 4 NDIS Technology. QC 4 NDIS will use Customer Materials solely for purposes of performing the Additional Services. You represent and warrant that you have all necessary rights in Customer Materials to provide them to QC 4 NDIS for such purposes.

(c) Training Not Covered. Your purchase, and our provision, of Training is subject to our Training Terms and Policies, which is a separate agreement.

7. License Term, Returns and Payment

7.1. License Term and Renewals. The License Term, Support and Maintenance period, and TAM services period will be indicated in the Order (as applicable). The License Term and any applicable service periods will commence on the Order date (unless a different start date is designated in the Order) and expire on the expiration date indicated in your account. Unless earlier terminated in accordance with this Agreement, each right to use Software will expire at the end of the applicable License Term. Unless you have selected the “autorenewal” option in your account, any renewals must be mutually agreed upon by the parties in writing. All renewals are subject to the applicable Software or Support and Maintenance continuing to be offered and will be charged at the then-current rates.

7.2. Delivery. We will deliver the applicable license keys to your account no later than when we have received payment of the applicable fees. You are responsible for accessing your account to determine that we have received payment and your Order has been processed. All deliveries under this Agreement will be electronic. For the avoidance of doubt, you are responsible for installation of the Software, and you acknowledge that QC 4 NDIS has no further delivery obligation with respect to the Software after delivery of the license keys.

7.3. Return Policy. As part of our commitment to customer satisfaction, you may terminate your initial Order of the applicable Software under this Agreement, for no reason or any reason, by providing notice of termination and returning any applicable Software to QC 4 NDIS no later than thirty (30) days after the Order date for such Software. In the event you terminate your initial Order under this Section 7.3, QC 4 NDIS may disable the license key that allowed the Software to operate and, at your request (which may be made through your account), QC 4 NDIS will refund you the amount paid under such Order. This termination and refund right applies only to your initial Order and only if you exercise your termination right within the period specified above, and does not apply to Additional Services. You understand that QC 4 NDIS may change this practice in the future in accordance with Section 21 (Changes to this Agreement).

7.4. Increased Scope of Use. During your License Term, you may increase your Scope of Use (e.g., adding Authorized Users, licenses, copies or instances) by placing a new Order or, if made available by QC 4 NDIS, directly through the applicable Software. Any increases to your Scope of Use will be subject to additional fees, as set forth in the applicable Order.

7.5. Payment. You will pay all fees in accordance with each Order, by the due dates and in the currency specified in the Order. If a purchase order number is required in order for an invoice to be paid, then you must provide such purchase order number to QC 4 NDIS by emailing the purchase order number to admin@tmrglobal.com. For Additional Services provided at any non- QC 4 NDIS location, unless otherwise specified in your Order, you will reimburse QC 4 NDIS for its pre-approved travel, lodging and meal expenses, which QC 4 NDIS may charge as incurred. Other than as expressly set forth in Section 7.3 (Return Policy) and Section 16 (IP Indemnification by QC 4 NDIS), all amounts are non-refundable, non-cancelable and non-creditable. You agree that we may bill your credit card or other payment method for renewals, additional users, expenses and unpaid fees, as applicable.

7.6. Taxes. Your fees under this Agreement exclude any taxes or duties payable in respect of the Software in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by QC 4 NDIS, you must pay to QC 4 NDIS the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to QC 4 NDIS any such exemption information, and QC 4 NDIS will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.

7.7. Withholding Taxes. You will pay all fees net of any applicable withholding taxes. You and QC 4 NDIS will work together to avoid any withholding tax if exemptions, or a reduced treaty withholding rate, are available. If QC 4 NDIS qualifies for a tax exemption, or a reduced treaty withholding rate, QC 4 NDIS will provide you with reasonable documentary proof. You will provide QC 4 NDIS reasonable evidence that you have paid the relevant authority for the sum withheld or deducted.

8. License Certifications and Audits.

At our request, you agree to provide a signed certification that you are using all Software pursuant to the terms of this Agreement, including the Scope of Use. You agree to allow us, or our authorized agent, to audit your use of the Software (including that of your Authorized Users). We will provide you with at least ten (10) days advance notice prior to the audit, and the audit will be conducted during normal business hours. We will bear all out-of-pocket costs that we incur for the audit, unless the audit reveals that you have exceeded the Scope of Use. You will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at your own cost. If you exceed your Scope of Use, we may invoice you for any past or ongoing excessive use, and you will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to QC 4 NDIS at law or equity or under this Agreement. To the extent we are obligated to do so, we may share audit results with certain of our third-party licensors or assign the audit rights specified in this Section 10 to such licensors.

9. Ownership and Feedback.

The Software is made available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. QC 4 NDIS and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to QC 4 NDIS Technology (including the Software). From time to time, you may choose to submit Feedback to us. QC 4 NDIS may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in this Agreement limits QC 4 NDIS’s right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.

10. Confidentiality.

Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any QC 4 NDIS Technology and any performance information relating to the Software will be deemed Confidential Information of QC 4 NDIS without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 10 and that the Receiving Party remains responsible for compliance by them with the terms of this Section 10. The Receiving Party’s confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.

11. Term and Termination

11.1. Term. This Agreement is effective as of the Effective Date and continues until expiration of all License Terms, unless earlier terminated as set forth herein.

11.2. Termination for Cause. Either party may terminate this Agreement (including all related Orders) if the other party (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).

11.3. Termination for Convenience. You may choose to stop using the Software and terminate this Agreement (including all Orders) at any time for any reason upon written notice to QC 4 NDIS, but, unless you are exercising your right to terminate early pursuant to Section 7.3 (Return Policy), upon any such termination (i) you will not be entitled to a refund of any pre-paid fees and (ii) if you have not already paid all applicable fees for the then-current License Term or related services period (as applicable), any such fees that are outstanding will become immediately due and payable.

11.4. Effects of Termination. Upon any expiration or termination of this Agreement, your license to the Software terminates (even if the License Term is identified as “perpetual” or if no expiration date is specified in your Order) and you must cease using and delete (or at our request, return) all Software and Confidential Information or other materials of QC 4 NDIS in your possession, including on any third-party systems operated on your behalf. You will certify such deletion upon our request. If this Agreement is terminated by you in accordance with Section 13.2 (Termination for Cause), QC 4 NDIS will refund you any prepaid Software fees covering the remainder of the then-current License Term after the effective date of termination. If this Agreement is terminated by QC 4 NDIS in accordance with Section 11.2 (Termination for Cause), you will pay any unpaid fees covering the remainder of the then-current License Term after the effective date of termination. In no event will termination relieve you of its obligation to pay any fees payable to QC 4 NDIS for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.

11.5. Survival. The following Sections will survive any termination or expiration of this Agreement: 3.2 (Restrictions), 3.8 (Indemnification by You), 4.1 (Third Party Products), 7.5 (Payment), 7.6 (Taxes), 8 (No-Charge Software) (disclaimers and use restrictions only), 10 (License Certifications and Audits), 11 (Ownership and Feedback), 12 (Confidentiality), 13 (Term and Termination), 14.3 (Warranty Disclaimer), 15 (Limitations of Liability), 16 (IP Indemnification by QC 4 NDIS) (but solely with respect to claims arising from your use of the Software during the License Term), 18 (Dispute Resolution), 19 (Export Restrictions), and 22 (General Provisions).

12. Warranties and Disclaimer

12.1. General Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. If you are an entity, you represent and warrant that this Agreement and each Order is entered into by an employee or agent of such entity with all necessary authority to bind such entity to the terms and conditions of this Agreement.

12.2. Virus Warranty. QC 4 NDIS further represents and warrants that it will take reasonable commercial efforts to ensure that the Software, in the form and when provided to you, will be free of any viruses, malware, or other harmful code. For any breach of the foregoing warranty, your sole and exclusive remedy, and QC 4 NDIS sole obligation, is to provide a replacement copy of the Software promptly upon notice.

12.3. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 12.1 (GENERAL WARRANTIES) AND 12.2 (VIRUS WARRANTY), ALL SOFTWARE, SUPPORT AND MAINTENANCE AND ANY ADDITIONAL SERVICES ARE PROVIDED “AS IS,” AND QC 4 NDIS AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. QC 4 NDIS WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF QC 4 NDIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER QC 4 NDIS NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY SOFTWARE OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE SOFTWARE WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE SOFTWARE (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SOFTWARE) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ERRORS OR DEFECTS WILL BE CORRECTED; OR (E) EXCEPT AS EXPRESSLY SET FORTH IN SECTION 14.2 (VIRUS WARRANTY), THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

13. Limitations of Liability

13.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

13.2. Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S AND ITS SUPPLIERS’ AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO US UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.

13.3. Excluded Claims. “Excluded Claims” means (1) amounts owed by you under any Orders, (2) either party’s express indemnification obligations in this Agreement, and (3) your breach of Section 3.2 (Restrictions) or of Section 2 (Combining the Products with Open Source Software) of Third Party Code in QC 4 NDIS Products.

13.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 15 (Limitations of Liability) apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

14. IP Indemnification by QC 4 NDIS.

We will defend you against any claim brought against you by a third party alleging that the Software, when used as authorized under this Agreement, infringes any third-party patent, copyright or trademark, or misappropriates any third-party trade secret enforceable in any jurisdiction that is a signatory to the Berne Convention (a “Claim”), and we will indemnify you and hold you harmless against any damages and costs finally awarded on the Claim by a court of competent jurisdiction or agreed to via settlement executed by QC 4 NDIS (including reasonable attorneys’ fees), provided that we have received from you: (a) prompt written notice of the Claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defense and investigation of the Claim, including providing us a copy of the Claim, all relevant evidence in your possession, custody, or control, and cooperation with evidentiary discovery, litigation, and trial, including making witnesses within your employ or control available for testimony; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the Claim. If your use of the Software is (or in our opinion is likely to be) enjoined, whether by court order or by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (i) procure the right or license for your continued use of the Software in accordance with this Agreement; (ii) substitute substantially functionally similar Software; or (iii) terminate your right to continue using the Software and refund any license fees pre-paid by you for use of the Software for the terminated portion of the applicable License Term or, in the case of any “perpetual” licenses, the license fee paid by you as reduced to reflect a three (3) year straight-line depreciation from the license purchase date. QC 4 NDIS indemnification obligations above do not apply: (1) if the total aggregate fees received by QC 4 NDIS with respect to your license to Software in the twelve (12) month period immediately preceding the Claim is less than US$10,000; (2) if the Software is modified by any party other than QC 4 NDIS, but solely to the extent the alleged infringement is caused by such modification; (3) if the Software is used in combination with any non- QC 4 NDIS product, software, service or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of Software; (5) to any Claim arising as a result of (y) circumstances covered by your indemnification obligations in Section 3.8 (Indemnification by You) or (z) any third-party deliverables or components contained with the Software; (6) to any unsupported release of the Software; or (7) if you settle or make any admissions with respect to a Claim without QC 4 NDIS’s prior written consent. THIS SECTION 14 STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY SOFTWARE OR OTHER ITEMS PROVIDED BY QC 4 NDIS UNDER THIS AGREEMENT.

15. Publicity Rights.

We may identify you as an QC 4 NDIS customer in our promotional materials. We will promptly stop doing so upon your request sent to admin@tmrglobal.com.

16. Dispute Resolution

16.1. Informal Resolution. In the event of any controversy or claim arising out of or relating to this Agreement, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under this Agreement pursuant to Section 18.2 (Governing Law; Jurisdiction). All negotiations pursuant to this Section 16.1 will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.

16.2. Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the applicable laws of the State of Victoria, AUS, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to this Agreement must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in Melbourne, Victoria, AUS, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Melbourne Victoria, AUS, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. In any action or proceeding to enforce a party’s rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.

16.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 18.1 (Informal Resolution) and Section 18.2 (Governing Law; Jurisdiction), nothing in this Agreement will prevent QC 4 NDIS from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.

16.4. Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) will not apply to this Agreement regardless of when or where adopted.

17. Export Restrictions.

The Software is subject to export restrictions by the Australian government and may be subject to import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your download of, access to, and use of the Software. You shall not (and shall not allow any third-party to) remove or export from the Australia or allow the export or re-export of any part of the Software or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Denied Persons, Entity, or Unverified Lists or the U.S. Treasury Department’s list of Specially Designated Nationals and Consolidated Sanctions list (collectively, “Prohibited Persons”); (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You represent and warrant that you are not located in, under the control of, or a national or resident of any such prohibited country. You also certify that you are not a Prohibited Person nor owned, controlled by, or acting on behalf of a Prohibited Person. You agree not to use or provide the Software for any prohibited end use, including to support any nuclear, chemical, or biological weapons proliferation, or missile technology, without the prior permission of the United States government.

18. Third Party Code.

The Software includes code and libraries licensed to us by third parties, including open source software.

19. Changes to this Agreement.

19.1. Modifications Generally. We may modify the terms and conditions of this Agreement (including QC 4 NDIS Policies) from time to time, with notice given to you by email, through the Software or through our website. Together with notice, we will specify the effective date of the modifications.
No-Charge Software: You must accept the modifications to continue using the No-Charge Software. If you object to the modifications, your exclusive remedy is to cease using the No-Charge Software.
Paid Licenses: Typically, when we make modifications to the main body of this Agreement (excluding the QC 4 NDIS Policies), the modifications will take effect at the next renewal of your License Term and will automatically apply as of the renewal date unless you elect not to renew pursuant to Section 7.1 (License Term and Renewals). In some cases – e.g., to address compliance with Laws, or as necessary for new features – we may specify that such modifications become effective during your then-current License Term. If the effective date of such modifications is during your then-current License Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we will refund to you any fees you have pre-paid for use of the affected Software for the terminated portion of the applicable License Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of this Agreement in effect at the time of the Order.
QC 4 NDIS Policies: Our products and business are constantly evolving, and we may modify the QC 4 NDIS Policies from time to time, including during your then-current License Term in order to respond to changes in our products, our business, or Laws. In this case, unless required by Laws, we agree not to make modifications to the QC 4 NDIS Policies that, considered as a whole, would substantially diminish our obligations during your then-current License Term. Modifications to the QC 4 NDIS Policies will take effect automatically as of the effective date specified for the updated policies.

20. General Provisions

20.1. Notices. Any notice under this Agreement must be given in writing. We may provide notice to you via email or through your account. You agree that any such electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Our notices to you will be deemed given upon the first business day after we send it. You will provide notice to us by post to QC 4 NDIS Pty Ltd, 2a Maple St Blackburn VIC 3130, Attn: General Counsel. Your notices to us will be deemed given upon our receipt.

20.2. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

20.3. Assignment. You may not assign or transfer this Agreement without our prior written consent. As an exception to the foregoing, you may assign this Agreement in its entirety (including all Orders) to your successor resulting from your merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under this Agreement. Any attempt by you to transfer or assign this Agreement except as expressly authorized above will be null and void. We may assign our rights and obligations under this Agreement (in whole or in part) without your consent. We may also permit our Affiliates, agents and contractors to exercise our rights or perform our obligations under this Agreement, in which case we will remain responsible for their compliance with this Agreement. Subject to the foregoing, this Agreement will inure to the parties’ permitted successors and assigns.

20.4. Entire Agreement. This Agreement is the entire agreement between you and QC 4 NDIS relating to the Software and supersedes all prior or contemporaneous oral or written communications, proposals and representations between you and QC 4 NDIS with respect to the Software or any other subject matter covered by this Agreement. No provision of any purchase order or other business form employed by you will supersede or supplement the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.

20.5. Conflicts. In event of any conflict between the main body of this Agreement and either the QC 4 NDIS Policies or Product-Specific Terms, the QC 4 NDIS Policies or Product-Specific Terms (as applicable) will control with respect to their subject matter.

20.6. Waivers; Modifications. No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. Except as set forth in Section 19 (Changes to this Agreement), any amendments or modifications to this Agreement must be executed in writing by the authorized representatives of QC 4 NDIS and you.

20.7. Interpretation. As used herein, “including” (and its variants) means “including without limitation” (and its variants). Headings are for convenience only. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions will continue in full force and effect.

20.8. Independent Contractors. The parties are independent contractors. This Agreement will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party.

21. Definitions.

Certain capitalized terms are defined in this Section 21, and others are defined contextually in this Agreement.

“Additional Services” means Technical Account Manager (“TAM”) services, Support and Maintenance or other services related to the Software provided to you by QC 4 NDIS, as identified in an Order.

“Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.

“QC 4 NDIS Policies” means QC 4 NDIS’s Acceptable Use Policy, Privacy Policy, Support Policy and (unless otherwise specified) any other policies or terms referenced in this Agreement.

“QC 4 NDIS Technology” means the Software (including all No-Charge Software), QC 4 NDIS Deliverables, their “look and feel”, any and all related or underlying technology and any modifications or derivative works of the foregoing, including as they may incorporate Feedback.

“Authorized Users” means the specific individuals whom you designate to use the applicable Software and for whom you have paid the required fees. Authorized Users may be your or your Affiliates’ employees, representatives, consultants, contractors, agents or other third parties who are acting for your or your Affiliates’ benefit or on your or your Affiliates’ behalf. Authorized Users also include any Secondary Users that you permit to use the Software, subject to Section 2.3 (Secondary Users).

“Documentation” means our standard published documentation for the Software.

“Feedback” means comments, questions, ideas, suggestions or other feedback relating to the Software, Support and Maintenance or Additional Services.

“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data.

“License Term” means your permitted license term for the Software, as set forth in an Order.

“New Releases” means any bug fixes, patches, major or minor releases, or any other changes, enhancements, or modifications to the Software that QC 4 NDIS makes available to you as part of Support and Maintenance.

“Order” means QC 4 NDIS applicable ordering documentation or other purchase flow referencing this Agreement. Orders may include purchases of Software licenses, Support and Maintenance, Additional Services, increased or upgraded Scope of Use or renewals.

“Product-Specific Terms” means additional terms that apply to certain Software and Additional Services, currently located here.

“Scope of Use” means your authorized scope of use for the Software as specified in the applicable Order, which may include: (a) number and type of Authorized Users, (b) numbers of licenses, copies or instances, or (c) entity, division, business unit, website, field of use or other restrictions or billable units.

“Software” means QC 4 NDIS commercially available software products (currently designated as “Server” deployments), including mobile applications of such products. Your Order will specify the Software that you may use.

“Support and Maintenance” means QC 4 NDIS support and maintenance services for the Software, as further described in the QC 4 NDIS Support Policy . Your level of Support and Maintenance will be specified in your Order.

“Training” means QC 4 NDIS -provided training and certification services.