License Certificate Policy

“Maximizer” refers to Maximizer Software Solutions Pty Ltd. “You” and “your” refers to the individual or entity that has ordered programs or services from Maximizer or an authorized distributor. “Programs” refers to the Licensed Software products and program documentation which you have ordered.

License Grant. Maximizer grants you a perpetual, non-exclusive, limited right to use its programs solely for your internal business operations subject to the terms of this License and the program documentation. You may allow your agents and contractors to use the programs for this purpose subject to the terms of this certificate. Additional licenses may be obtained at the then current list price and will be subject to the terms of this certificate.

Ownership. Maximizer retains all ownership and intellectual property rights to the programs and product upgrades. You may make a sufficient number of copies of each program for your licensed use and one copy of each program for backup purposes.

Restrictions. You may not, without the prior express written authorization of Maximizer: sub-license, re-license, rent, lease, assign, or copy the programs except as authorized under this certificate; use more than the number of licenses granted under this certificate; use the programs for other than the licensed uses; directly or indirectly disassemble, de-compile, reverse-engineer, transcribe, translate, adapt, modify or in any manner change the programs; or, remove or modify any program markings or any notice of propriety rights.

Fees. You will pay Maximizer all fees or other amounts due under this certificate, plus any and all applicable taxes within 30 days of the respective invoice due date. You will pay interest on overdue amounts at the rate of 1½% per month or 18% per annum.

Supplemental Licenses. If, after the Effective Date, you subsequently purchase additional licenses of the Licensed Software, these Supplemental Licenses will be included under this certificate.

Termination. If you breach the terms of this certificate and fail to correct the breach within 30 days after Maximizer notifies you, Maximizer may, at its discretion, terminate this License and your use of the programs. Upon termination of this certificate for any reason, you must pay all accrued amounts within 30 days and provide Maximizer with a signed “Certificate of Destruction”. In the event that this certificate is terminated, you will not be entitled to a refund of any Fees or other amounts paid.

Maintenance Services. Maintenance & Support Services are not provided under this certificate.

Warranties. Maximizer warrants that the programs will substantially conform with all material operational features and performance characteristics as described in the program documentation for a period of one year after Maximizer delivers such programs to you; provided, however, that (i) the programs are installed and implemented by Maximizer or a Maximizer Certified Solution Provider, (ii) the programs are operated in accordance with all instructions supplied by Maximizer, (iii) you employ sufficiently trained staff to manage and support the programs as recommended by Maximizer, (iv) you notify Maximizer in writing of any nonconformity, error, or defect within 10 days of the appearance thereof, and (v) you have promptly and properly installed all corrections and updates made available to you by Maximizer. If you promptly notify Maximizer in writing of any such nonconformity, error, or defect, Maximizer at its sole and exclusive option, will use commercially reasonable efforts to repair the program(s), exchange the program(s), or provide a workaround for the program(s).

Disclaimer. MAXIMIZER DOES NOT GUARANTEE THAT THE PROGRAMS WILL MEET YOUR REQUIREMENTS, PERFORM ERROR-FREE OR UNINTERRUPTED, OR THAT MAXIMIZER WILL CORRECT ALL PROGRAM ERRORS. MAXIMIZER SUPPLIES THE PROGRAMS “AS IS” AND TO THE EXTENT PERMITTED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND TAKE THE PLACE OF ALL OTHER EXPRESS OF IMPLIED WARRANTIES OR CONDITIONS INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE. IF MAXIMIZER CANNOT SUBSTANTIALLY CORRECT A BREACH OF ITS WARRANTIES IN A COMMERCIALLY REASONABLE MANNER, YOU MAY END YOUR PROGRAM LICENSE AND RECOVER THE LICENSE FEES PAID TO MAXIMIZER UNDER THIS CERTIFICATE, AS APPLICABLE. THIS IS YOUR EXCLUSIVE REMEDY. 

Indemnification. If a person makes a claim against you stating that Maximizer's programs infringe their intellectual property rights, Maximizer will indemnify you provided that you (i) provide written notification within 30 days of receiving notice of the claim; (ii) give Maximizer sloe control of the defense and any settlement negotiations; and (iii) give Maximizer the information, authority, and assistance that it needs to defend against or settle the claim.

Limitation of Liability. NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTAL DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, DATA OR DATA USE. MAXIMIZER'S MAXIMUM LIABILITY FOR ANY DAMAGES WHETHER IN CONTRACT OR TORT WILL NOT EXCEED THE FEES WHICH YOU PAID TO MAXIMIZER UNDER THIS CERTIFICATE LESS AN AMOUNT EQUAL TO THE AMORTIZED COST OF THE FEES OVER A 5 YEAR PERIOD. IF SUCH DAMAGES RESULT FROM YOUR USE OF A PROGRAM, THE LIABILITY WILL BE LIMITED TO THE FEES PAID FOR THE RELEVANT PROGRAM. 

Press Releases. You acknowledge that Maximizer may make reference to you and your relationship to Maximizer in press releases, advertising and promotional materials and you consent to any such reference.

Audit. Maximizer may audit your use of the programs and you will cooperate and provide Maximizer with the reasonable assistance and access to information, so long as Maximizer gives you 45 days advance written notice. You will pay any Licensed Software and Maintenance Services Fee deficiencies.

Export Control. Canadian and US export control laws and other applicable export and import laws govern your use of the programs, including technical data. Neither the programs nor any direct product thereof may be exported, directly or indirectly, in violation of these laws, or may be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation.

Mutual Non Solicitation of Employees. During the Term of this certificate, and for a period of one year thereafter, Maximizer and you will not hire or allow affiliates to hire or offer to hire any employee of the other, or any person who was an employee of the other during the six months prior to the other hiring or offering to hire such person, unless otherwise agreed to by the other party in writing.

Relationship. You and Maximizer are independent contractors and neither is an agent, joint venturer, partner or employee of the other and Maximizer will not be obligated by any certificates or representations made by you to any person, nor with respect to any other action by you, nor will Maximizer be obligated for any damages to any person whether caused by your actions, failure to act, negligence or wilful conduct.

Entire Certificate. This certificate is the entire certificate between you and Maximizer for the programs and Maintenance Services ordered and supersedes all prior or contemporaneous certificates or representations. If any terms of this certificate are found to be invalid or unenforceable, the remaining provisions will remain effective.

Governing Jurisdiction. This Certificate and its application and interpretation will be governed exclusively by the laws prevailing in New South Wales, Australia which will be deemed to be the proper law hereof. The parties hereby irrevocably attorn to the jurisdiction of the courts of New South Wales, Australia in the event of any proceedings regarding this Certificate. 

 

Product Upgrade Assurance

“Maximizer” refers to Maximizer Software Solutions Pty Ltd. “You” and “your” refers to the individual or entity that has ordered Product Upgrade Assurance (PUA) from Maximizer or an authorized distributor under this certificate. “Certified Solution Provide” means a reseller of certain Maximizer products that has met and maintained Maximizer's minimum requirements for selling and supporting those products.

Product Upgrade Assurance (PUA). PUA received under this Certificate are provided under Maximizer's policies which are subject to change from time to time.

PUA includes:

• Minor patches to the current and next version of Maximizer
• Major upgrades to the latest full version of Maximizer
• The latest features, enhancements, service releases and fixes.

Ensures compatibility with latest operating systems and productivity tools.

 

PUA does not include:

• support; remote or on-site
• implementation services
• database administration; system, network or network security configuration;
• software customisation; or training.

These excluded services may be obtained from Maximizer or a local Maximizer Certified Solution Provider at their then current rates and costs. PUA does not include third party products that are either not part of the Licensed Software or are bundled with the Licensed Software.

Software & Documentation Updates. Maximizer may provide you, at its discretion and at your request, with all fixes, Version Releases and Service Releases to the Licensed Software that Maximizer makes generally available to other Maximizer licensees and does not market as independent features or new modules. Maximizer will not retroactively provide you with Software & Documentation Updates that were released during the Term of the certificate once the certificate has lapsed.

Term. The term of this certificate will be for a period of 1 year from the Effective Date of this certificate, plus automatic 1-year renewals, unless written notice is given by either party 30 days prior to the anniversary date of this certificate.

Late Payment Penalties. In the event whereby the PUA renewal has lapsed beyond the renewal period a penalty of two months for every month in arrears and one year in advance will apply.

Ownership. Maximizer retains all ownership and intellectual property rights to the Maximizer Software.

Fees. PUA is calculated at 20% of the then current list price of the Maximizer Licensed Software initially and subsequently purchased. You will pay Maximizer directly or via a Maximizer Certified Solution Partner all fees or other amounts due under this certificate, plus and all applicable taxes within 30 days of the respective invoice due date. You will pay interest on overdue amounts at the rate of 1½% per month or 18% per annum.

Warranty. PUA does not extend the warranty period for the Software, expand upon or in any way alter the warranty provisions set out in the License Certificate which applies to your licensed copy of the Software.

Termination. If you breach the terms of this certificate and fail to correct the breach within 30 days after Maximizer notifies you, Maximizer may terminate this Certificate and your use of the Licensed Software. Upon termination of this certificate for any reason, you must pay all accrued amounts within 30 days. In the event that this certificate is terminated, you shall not be entitled to a refund of any Fees or other amounts paid.

Reasonable Efforts. Maximizer does not guarantee results under this certificate, but agrees to use reasonable efforts in attempting to accomplish its obligations and will be entitled to payment on that basis.

 

Disclaimer. MAXIMIZER DOES NOT GUARANTEE THAT THE PRODUCT UPGRADE WILL MEET YOUR REQUIREMENTS, PERFORM ERROR-FREE OR UNINTERRUPTED, OR THAT MAXIMIZER WILL CORRECT ALL ERRORS. MAXIMIZER SUPPLIES THE PRODUCT UPGRADE ASSURANCE “AS IS” AND DOES NOT WARRANT CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE. MAXIMIZER DOES NOT WARRANT THAT THE LICENSED SOFTWARE WILL INTEGRATE ERROR-FREE WITH ALL AVAILABLE APPLICATIONS AND OPERATING SYSTEMS. 

Limitation of Liability. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTAL DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, DATA OR DATA USE. MAXIMIZER'S MAXIMUM LIABILITY FOR ANY DAMAGES WHETHER IN CONTRACT OR TORT WILL NOT EXCEED THE FEES WHICH YOU PAID TO MAXIMIZER UNDER THIS CERTIFICATE.

Maintenance & Support Policy

“Maximizer” refers to Maximizer Software Solutions Pty Ltd. “You” and “you” refers to the individual or entity that has ordered maintenance services from Maximizer or an authorized distributor under this agreement. “Designated Technical Support Contact” means an individual designated by you to represent you in contacts with Maximizer's Technical Support Department. Such individuals, normally restricted to 3 per Licensee, must be sufficiently technically competent to communicate, receive and implement instructions on the Licensed Software and the hardware upon which it is configured. “Certified Solution Provider“ means a reseller of certain Maximizer products that has met and maintained Maximizer's minimum requirements for selling and supporting those products.

Errors, Releases, Workarounds. “Error” means a situation where Maximizer has diagnosed that the Licensed Software does not substantially conform with the documentation when the Licensed Software is being used by you for common applications of the software, and with common hardware and network configurations. “Version Release” means a scheduled release of the Licensed Software that adds and/or enables a new feature, an innovation, performance improvement, or a major enhancement to the previous release of Licensed Software. “Service Release” means a non-scheduled Licensed Software release that modifies the Licensed Software as a result of revisions to the current release, or corrections and/or fixes to the current release of the Licensed Software. “Workaround” means a change in the procedures followed by you to avoid an Error without substantially impairingthe use of the Licensed Software.

Maintenance Services. Annual Maintenance Services purchased under this Agreement are provided under Maximizer's maintenance policies which are subject to change from time to time. Maintenance Services may include telephone¹ or email² support to Designated Technical Support Contacts, commercially reasonable efforts to correct Errors and certain software and documentation updates. Maintenance Services does not include remote or on-site implementation; database administration; system, network or network security configuration; software customization; or training. These additional services may be obtained from Maximizer or a local Maximizer Certified Solution Provider at their then current rates and costs. Maintenance Services does not include third party products that are either not part of the Licensed Software or are bundled with the Licensed Software.

Telephone Maintenance and Usage Support. Maintenance Services include answering questions to Designated Technical Support Contacts and providing a reasonable level of guidance to you regarding the use of the Licensed Software; responding to reports of Errors in the Licensed Software; and determining if the reported Error is a result of a problem in the Licensed Software or an environmental, configuration or installation problem. You acknowledge that you are responsible for providing documentation sufficient for Maximizer to reproduce the Error on Maximizer's master copy of the Licensed Software, including a written, detailed description of the problem, log files, core dumps, data files, or any other information requested by Maximizer.

Software & Documentation Updates. Maximizer may provide you, at its sole discretion and at your request, with all fixes, Version Releases and Service Releases to the Licensed Software that Maximizer makes generally available to other Maximizer licensees and does not market as independent features or new modules. Maximizer will not retroactively provide you with Software & Documentation Updates that were released during the Term of an agreement once an agreement has lapsed.

Error Corrections. Maximizer will use commercially reasonable efforts during normal business hours to correct Errors in the current version of the Licensed Software in a timely manner by providing the repair or replacement of object or executable code versions of the Licensed Software, or a Workaround for the Licensed Software. Where it is determined that the Error does not have a substantial business impact on you in terms of the loss of functionality, a correction for the Error may not be provided until the development of a future Version Release or Service Release.

Errors Not Caused by the Licensed Software. If Maximizer reasonably believes that a problem you report may not be due to an Error in the Licensed Software, Maximizer will notify you and Maximizer shall not proceed further unless you provide written instruction to do so. If upon resolution of the problem Maximizer determines that the Error is not a result of an Error in the Licensed Software, you will be invoiced for time and materials at Maximizer's then standard rates for the time spent in the resolution process.

No Support for Altered Versions of the Licensed Software. Maximizer has no obligation to correct Errors or to provide telephone support on any version of the Licensed Software that has been altered or modified by you.

Expiry of Support for Versions of the Software that Maximizer Can No Longer Support. As Maximizer makes available Version Releases, it will cease to support certain existing releases used by you. Versions supported by Maximizer at any given time are listed at http://www.maximizer.com.au.

Term. The term of this agreement will be for a period of 1 year from the Effective Date of this agreement and automatic renewal for 1 year unless written notice is given by either party 30 days prior to the anniversary date of this agreement. In the event whereby the Maintenance renewal has not been paid prior to the renewal date penalties will apply.

Penalties. In the event whereby the Maintenance renewal has not been paid prior to the renewal date a penalty equivalent to the number of months in arrears will apply (up to 12 months then by negotiation). This event and penalty payment then entitles the customer to all maintenance facilities as set out within this agreement. For example, a customer with Maintenance renewal date on 30 June 2009 has not paid until 8 August 2009 then a penalty of 2 months will apply in addition to the original annual renewal fee.

Ownership. Maximizer retains all ownership and intellectual property rights to the Maintenance Services.

Fees. Maintenance Services are calculated at 20% of the then current list price of the Maximizer Licensed Software initially and subsequently purchased with a minimum of $1,000 for Premier Level and $500 for Silver Level. You will pay Maximizer all fees or other amounts due under this agreement, plus any and all applicable taxes within 30 days of the respective invoice due date. You will pay interest on overdue amounts at the rate of 1½% per month or 18% per annum.

Supplemental Licenses. If, after the Effective Date, you subsequently purchase additional licenses of the Licensed Software, these Supplemental Licenses will be included under this agreement. The Supplemental Fee is calculated using the following formula where the Supplemental Licenses are the additional licenses to be purchased, the Supported Licenses are the number of licenses under the signed agreement, and the Annual Fee is the Fees paid under the signed agreement:

 

 

Termination. If you breach the terms of this agreement and fail to correct the breach within 30 days after Maximizer notifies you, Maximizer may terminate this Maintenance Agreement and your use of the Maintenance Services. Upon termination of this agreement for any reason, you must pay all accrued amounts within 30 days. In the event that this agreement is terminated, you shall not be entitled to a refund of any Fees or other amounts paid.

Reasonable Efforts. Maximizer does not guarantee results under this agreement, but agrees to use reasonable efforts in attempting to accomplish its obligations and will be entitled to payment on that basis.

 

Disclaimer. MAXIMIZER DOES NOT GUARANTEE THAT THE MAINTENANCE SERVICES WILL MEET YOUR REQUIREMENTS, PERFORM ERROR-FREE OR UNINTERRUPTED, OR THAT MAXIMIZER WILL CORRECT ALL ERRORS. MAXIMIZER SUPPLIES THE MAINTENANCE SERVICES “AS IS” AND DOES NOT WARRANT CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE. MAXIMIZER DOES NOT WARRANT THAT THE LICENSED SOFTWARE WILL INTEGRATE ERROR-FREE WITH ALL AVAILABLE APPLICATIONS AND OPERATING SYSTEMS.

¹ Available to Premier Level Support customers only

² Available to both Premier & Silver Level Support customers

 

Professional Services Policy

The Customer is in need of professional services consulting on Maximizer products, MAXIMIZER represents that it is duly qualified and agrees to perform all services described in this contract to the satisfaction of the Customer. Therefore, in consideration of the mutual covenants set forth in this Agreement, which the parties acknowledge are sufficient, MAXIMIZER and the Customer agree as follows:

Definitions

In this Agreement:

1. “Agreement” means this agreement including any recitals and Schedules to this agreement, as amended, supplemented or restated from time to time;
2. “Documentation” means the user manuals and other documentation specified in Schedule “A” of this Agreement under the heading “Documentation”, and such other documentation as may be provided by MAXIMIZER to the Customer for use with the Licensed Software;
3. “Fee” has the meaning given to it in Section 3.1;
4. “Licensed Products” means the Licensed Software and the Sublicensed Software in object code form only;
5. “Professional Services” means the set of services which is specified in Schedule “A” of this Agreement.
6. “Tax” or “Taxes” includes all present and future taxes, surtaxes, duties, levies, imposts, rates, fees, assessments, withholdings, dues and other charges of any nature imposed by any Governmental Authority (including income, capital (including large corporations), withholding, consumption, sales, use, transfer, goods and services or other value-added, excise, customs, anti-dumping, countervail, net worth, stamp, registration, franchise, payroll, employment, health, education, business, school, property, local improvement, development, education development and occupation taxes, surtaxes, duties, levies, imposts, rates, fees, assessments, withholdings, dues and charges) together with all fines, interest, penalties on or in respect of, or in lieu of or for non-collection of, those taxes, surtaxes, duties, levies, imposts, rates, fees, assessments, withholdings, dues and other charges;

1. PROFESSIONAL SERVICES

Subject to the terms and conditions of this Agreement, MAXIMIZER will provide consulting services at the Customer site or the Maximizer offices or designated place of work during normal working hours. All activity performed will be conducted in accordance with the agreed scope of work.

2. INTELLECTUAL PROPERTY RIGHTS AND OBLIGATIONS

MAXIMIZER owns all rights, title, and interest in all of the intellectual property rights, including copyrights, patents, trade secrets, trademarks, and service marks in the Works and Documents created and paid for under this contract. Works means all inventions, improvements, discoveries (whether or not patentable), databases, computer programs, reports, notes, studies, photographs, negatives, designs, drawings, specifications, materials, tapes, and disks conceived, reduced to practice, created or originated by MAXIMIZER in the performance of this contract. Works include “Documents”. Documents are the originals of any databases, computer programs, reports, notes, studies, designs, specifications, materials, tapes, disks, or other materials, whether in tangible or electronic forms, prepared by MAXIMIZER in the performance of this contract. The Works and Documents will be the exclusive property of MAXIMIZER and the Customer upon completion or cancellation of this document must immediately return all such Documents to MAXIMIZER. The Customer assigns all right, title, and interest it may have in the Works and the Documents to MAXIMIZER.

3. FEE

3.1 Fee

The Customer will pay to MAXIMIZER the amounts set out in Schedule “A” beside the words “Amount Due” (the "Fee"), plus all applicable Taxes. The Fee will be due and owing upon receipt of the invoice for the same.

3.2 Price Increases

The Customer acknowledges that the Fee specified in Schedule “A” are subject to increase from time-to-time by MAXIMIZER with 30 days notice to the Customer.

3.3 Overdue Amounts

The Customer agrees to pay interest on overdue amounts at the rate of 15% per annum compounded monthly.

4. TERM AND TERMINATION

4.1. Term of License

This Agreement will take effect, and the term of this Agreement (the “Term”) will commence, upon the acceptance and execution of this Agreement by the Customer and MAXIMIZER and will continue indefinitely unless terminated.

4.2 Termination by Maximizer

This Agreement and the License will, at the option of MAXIMIZER, terminate upon the occurrence of any one or more of the following events:

1. where the other party has defaulted in the performance of any of its covenants under this Agreement and has failed to remedy such default after being given fourteen days notice in writing of the default by the non-defaulting party;
2. the appointment of any type of admin istrator or the entry or proposed entry by the party into any scheme, composition or arrangement with any of its creditors;
3. the appointment of a receiver over the whole or part of its assets; or
4. where the other party has committed an act of bankruptcy

4.3 Termination by Customer

The Customer may, at its election, terminate this Agreement upon forty-five (45) days written notice to MAXIMIZER. In the event that the Customer so elects to terminate this Agreement, the Customer shall not be entitled to a refund of any part of the Fee.

4.4 Effect of Termination

In the event that the Customer so elects to terminate this Agreement, the Customer shall not be entitled to a refund of any part of the Fee. Upon termination, MAXIMIZER shall be entitled to payment, determined on a pro rata basis, for services performed. Upon termination of this Agreement all copies and modifications of the Software in any and all forms, and the Documentation are on the written request of MAXIMIZER to be delivered to MAXIMIZER at the Customer's expense. Where MAXIMIZER does not request the return of the Licensed Materials as set out above, the Customer will destroy the Licensed Products and all copies and modifications related thereto and the Documentation and provide proof of such destruction to MAXIMIZER within 30 days of termination.

 

5. DISCLAIMERS AND LIMITATION OF LIABILITY

1. MAXIMIZER warrants that the services provided by it under this Agreement shall be provided with due care and skill and that any materials supplied by it in connection with those services will be reasonably fit for the purpose for which they are supplied.
2. Except to the extent that any exclusion, restriction, or modification or certain conditions, warranties or rights is prohibited in the context of this Agreement by the Trade Practices Act 1974 (Commonwealth) or any equivalent State or Territory legislation as the same may apply to the provisions of the services under this Agreement, the warranties in Clause 5(a) above are in lieu of and the Customer waives all other warranties relating to the provision of the services and the Software, expressed or implied, arising under the statute or at common law, including but not limited to the implied warranties of merchantability and fitness for a particular purpose. MAXIMIZER neither assumes nor authorises the Customer or any other persons to assume for MAXIMIZER any other warranty except as may be specifically provided in writing by MAXIMIZER.
3. MAXIMIZER shall not be liable to the Customer or third parties for any damages, including any incidental, special, indirect or consequential damages or loss, (whether under contract, tort or otherwise), including but not limited to the loss of profit or damages stemming from the loss of data or data being rendered inaccurate, whether or not the Customer has been advised of the possibility of such damage or loss and whether or not such damage or loss arises from MAXIMIZER's negligence or breach of any agreement. To the extent permitted under the Trade Practices Act or an equivalent State or Territory legislation in connection with the provision of the services and the Software, MAXIMIZER's liability to the Customer for any breach of any condition or warranty shall be limited, at the option of MAXIMIZER, to one or more of the following:

    i. the supplying of the services again; or

    ii. the payment of the costs of having the services supplied.

4. The Customer shall at all times indemnify and hold harmless MAXIMIZER and its officers, employees and agents from and against any loss (including legal expenses on a solicitor-own client basis) or other liability incurred or suffered by MAXIMIZER or its officers, employees or agents resulting directly or indirectly from:
   
    i. a breach by the Customer, its officers, servants or agents, of any of its obligations under this Agreement; or
    ii. any wilful, unlawful or negligent act or omission of the Customer, its officers, servants or agents.
5. MAXIMIZER will not be liable for any damages caused by delay in delivering or furnishing any services referred to in this agreement.
6. MAXIMIZER does not guarantee results under this Agreement but merely agrees to use reasonable efforts in attempting to accomplish its obligations and will be entitled to payment on that basis.

6. NOTICE AND DELIVERIES

Any and all notices given hereunder will be in writing, and will be delivered in person or sent by registered mail, facsimile, or electronic mail to the parties at their respective addresses herein above given. Any and all deliveries to be made hereunder will be delivered in person or sent by registered mail to the parties to the contacts and respective addresses herein above given. Either party may change such address by written notice to the other party. A notice or a delivery will be deemed to have been received by the intended recipient on the date of delivery, if delivered in person, by facsimile, or by electronic mail, or, if sent by registered mail, 48 hours after the hour of mailing.

 

7. NON-SOLICITATION OF EMPLOYEES

During the Term of this Agreement, and for a period of one year thereafter, the Customer agrees not to hire or offer to hire or allow its affiliates to hire or offer to hire:

1. any employee of MAXIMIZER; or
2. any person who was an employee of MAXIMIZER during the six months prior to the Customer hiring or offering to hire such person,

unless otherwise agreed to by MAXIMIZER in writing.

Penalty for solicitation of employees is $50,000.

 

8. GENERAL

1. This Agreement sets forth the entire Agreement and understanding between the parties as to the subject matter of this Agreement and merges all prior discussions between them, and neither of the parties shall be bound by any addition to or modification of this Agreement, or by any conditions, definitions, warranties, or representations with respect to the subject matter of this Agreement, other than as expressly provided herein;
2. This Agreement and its application and interpretation will be governed exclusively by the laws prevailing in New South Wales, Australia which will be deemed to be the proper law hereof. The parties hereby irrevocably attorn to the jurisdiction of the courts of New South Wales , Australia in the event of any proceedings regarding this Agreement;
3. The terms of this agreement are several. If the whole or any part of a provision of this Agreement is invalidated, by operation of law or otherwise, the provision or part will to that extent be deemed omitted and the remainder of this Agreement will remain in full force and effect;
4. The headings and captions in this Agreement are for convenience only and do not form a part of this Agreement and will not be used to interpret, define or limit the scope, extent or intent of this Agreement or any of its provisions;
5. In this Agreement the word "including" when following any general term or statement is not to be construed as limiting the general term or statement to the specific items or matters set forth or to similar items or matters but rather as permitting it to refer to all other items or matters that could reasonably fall within its broadest possible scope;
6. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns;
7. No amendment, waiver, termination or variation of the terms, conditions, warranties, covenants, agreements and undertakings set out herein shall be of any force or effect unless the same is reduced to writing duly executed by all parties hereto in the same manner and with the same formality as this Agreement is executed;
8. No waiver of any of the provisions of this Agreement shall constitute a waiver of any other provision (whether or not similar) and no waiver shall constitute a continuing waiver unless otherwise expressly provided;
9. Time is of the essence of this Agreement;
10. Neither party will be liable for its failure to perform any of its obligations under this Agreement due to a cause beyond its control including acts of God, fire, flood, explosion, strikes, lockouts or other industrial disturbances, laws, rules and regulations or orders of any duly constituted governmental authority or non‑availability of materials or transportation or means of communication.
11. This Agreement may be executed and delivered in any number of counterparts with the same effect as if all parties had all signed and delivered the same document and all counterparts and adopting instruments will be construed together to be an original and will constitute one and the same agreement;
12. Any party may deliver an executed copy of this Agreement by fax but that party will immediately dispatch by delivery person to the other party an originally executed copy of this Agreement;
13. The parties hereto are independent contractors and neither is the agent, joint venture, partner or employee of the other and MAXIMIZER shall not be obligated by any agreements or representations made by the Customer to any person, nor with respect to any other action of the Customer, nor shall MAXIMIZER be obligated for any damages to any person whether caused by the Customer's actions, failure to act, negligence or will-full conduct.

9. CONFIDENTIALITY

Each party will treat as confidential all information obtained from the other party in connection with this Agreement which is designated as confidential by the other party or which is by its nature clearly confidential. The recipient party will not disclose this information to any person (except to those employees, agents, sub-contractors, suppliers and other representatives who need to know it) or use this information for purposes other than the performance of its obligations under this Agreement without the other party's prior written consent.

 

This clause will not extend to information which:

1. was in the possession of the recipient party before receiving it; or
2. is public knowledge (other than as a result of a breach of this clause); or
3. is independently developed by the recipient party without access to or use of such information.

These obligations of confidentiality will survive any termination of this Agreement.

 

10. GOOD AND SERVICES TAX ("GST")

10.1 Definition

1. For the purposes of this clause: “GST” means GST within the meaning of the GST Act.
2. “GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (as amended).
3. Expressions set out in italics in this clause bear the same meaning as those expressions in the GST Act.

10.2 Amounts otherwise payable do not include GST

Except where express provision is made to the contrary, and subject to Clause 10, the consideration payable by any party under this Agreement represents the value of any taxable supply for which payment is to be made.

10.3 Liability to pay any GST

Subject to clause 10.4, if a party makes a taxable supply in connection with this Agreement for a consideration , which, under clause 10.2, represents its value , then the party liable to pay for the taxable supply must also pay, at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the taxable supply.

10.4 Tax invoice

A party's right to payment under clause 10.3 is subject to a valid tax invoice being delivered to the party liable to pay for the taxable supply.

 

Return Policy & Shipping Terms

Maximizer reserves the right, at its discretion, to change, modify, add or remove portions of these terms and conditions at any time. Please check these terms and conditions periodically for changes. Your continued use of this site or any Maximizer website following the posting of changes to these terms and conditions will mean you accept those changes.

Return of Software

Maximizer offers trial versions of its software so customers have adequate opportunity to assess the value of products prior to purchase. Therefore, Maximizer does not accept returns on its products purchased:

• Directly from Maximizer once they have either been shipped from our warehouse or downloaded from our website; or
• Indirectly through Maximizer business partners.

Replacement of Damaged or Defective Items

Maximizer will replace software shipped from Maximizer's warehouse or downloaded from Maximizer's website only if such software is defective or damaged. Please contact Customer Service in the event of defective or damaged software. You must contact Customer Service within 30 business days after receiving or downloading such software in order for Maximizer to replace such software.

Retail Products Purchased from External Distributors

Retail products purchased from an external distributor (including Maximizer business partners) are subject to the return policies of that distributor.

Bundled Software

Maximizer does not accept returns on products obtained as part of a bundle with other computer services or equipment, or distributed by another company as part of a software compilation.

Services

Maximizer does not accept returns on its services (including without limitation customer support contracts, professional services, and product customisations) that are sold to customers under contract. Paid professional services work will be forfeited and no credit or refund provided if not used within 12 months of purchase.

Online Training

Online training courses offered by Maximizer are non-refundable.

Products Purchased Outside Australia & New Zealand

For return policies on products and services purchased outside of Australia & New Zealand, please refer to the Global offices.

Shipping Terms

These terms and conditions apply only in the case of products shipped or downloaded within the Australia. Unless noted otherwise, if prices are mentioned on the Maximizer website, these do not include the cost of shipping, taxes or brokerage fees. Shipping delivery times vary based on delivery address. Maximizer does not guarantee time of delivery.

To obtain further information, please contact Customer Service