CNXION End User License Agreement (EULA)

CNXION End User License Agreement (EULA)


Please read this Agreement carefully.  It is a legal document that explains your rights and obligations related to your use of the CNXION Platform and related content.  By downloading or using this software or any related content, you are agreeing to be bound by the terms of this Agreement.  If you do not or cannot agree to the terms of this Agreement, please do not download or use this software or any related content.

Certain words or phrases are defined to have certain meanings when used in this Agreement.  Those words and phrases are defined below in Section 25.

You are the natural person indicated in your CNXION profile (Company Name, Full Name of Representative)

Your agreement is with Hunted Hive Pty Ltd (referred to in this Agreement as “Us, we, CXNION”


1. License Grant


CNXION grants you a non-exclusive, non-transferable, non-sublicensable (except as described in this Agreement) license to use, reproduce, display, perform, and modify the Licensed Technology for the purpose of running an online marketplace of web application,  for lawful purposes. (the “License”).  However, the rights that CNXION grants you under the License are subject to the terms of this Agreement, and you may only make use of the License if you comply with all applicable terms.

The License becomes effective on the date you accept this Agreement or download the Platform Code or any Content.  The License does not grant you any title or ownership in the Licensed Technology.  

(A) Allowed forms of Distribution and Sublicensing

You may only Distribute the Licensed Technology as follows:

          a. Distribution to end users - You may provide access to the Licensed Technology via web services only access as  part of a Product or Service to end users who are subject to an end user license agreement which explicitly disclaims any representations, warranties, conditions, and liabilities related to the Licensed Technology.  The Product or Service may not expose any uncooked source code or object format code or any Platform Tools.  

          b.  Distributions to employees and contractors - You also may Distribute Content (other than Paid Plug-ins) to a Platform Licensee who is your employee or your contractor who does not have rights under their license to the same Content, but only to permit that Platform Licensee to utilize that Content in good faith to develop a Product on your behalf for Distribution by you under the License, and not for the purpose of Content pooling or any other Distribution or sublicensing of Content that is not permitted under this Agreement.  Recipients of such a Distribution have a limited license to use, reproduce, display, perform, and modify that Content to develop your Product as outlined above, and for no other purpose.  

           c.  Distribution of Non-Source-Code Programming Language Integration - You may Distribute an integration of a programming language other than Source-Code for the Licensed Technology, but if you do, the integration must be Distributed free of charge to all Platform Licensees, must be available in source code form (including, but not limited to, any compiler, linker, toolchain, and runtime), and must permit Distribution free of charge, on all platforms, in any Product.

You may not sublicense the Licensed Technology in Source Code format.  You may not sublicense the Licensed Technology in object code format, or any Content, except to grant end users the ability to use a Product or Service that you Distribute as permitted in Section 1(a) above.  

When you generate revenue from a Product or Service, or Distribute it to end users, you must provide CNXION with advance notification at wearecnxion.com/release, as early as reasonably possible, including the name of the Product, the format of distribution, unique Product ID (where applicable), and the distribution channel(s).

(B) Other Restrictions

(i) CNXION-Only Content

For CNXION-Only Content, you may exercise your rights under the License only if and to the extent that the CNXION-Only Content is utilized in combination with the Platform Code.  For example, you may not develop or Distribute a Product that consists of or contains CNXION-Only Content but does not contain and require the Platform Code (including as modified by you under the License) for its use.  The CNXION-Only Content is subject to all of the terms of this Agreement that apply to Content, as well as the additional limitations described in this paragraph.  All references in this paragraph to CNXION-Only Content include modified versions thereof made by you under the License.

(ii) Non-Compatible Licenses

You may not combine, Distribute, or otherwise use the Licensed Technology with any code or other content which is covered by a license that would directly or indirectly require that all or part of the Licensed Technology be governed under any terms other than those of this Agreement (“Non-Compatible License”).  Code or content under the following licenses, for example, are prohibited:  GNU General Public License (GPL), Lesser GPL (LGPL) (unless you are merely dynamically linking a shared library), or Creative Commons Attribution-ShareAlike License.  Code or content under the following licenses, for example, are allowed:  BSD License, MIT License, Microsoft Public License, or Apache License.  You may not sublicense the Licensed Technology under a Non-Compatible License.

(iii) General Restrictions

You may not engage in any activity with respect to the Licensed Technology, including as incorporated into a Product, (1) for any gambling-related activities or Products (as defined by law in the jurisdiction of use); (2) for operation of nuclear facilities, aircraft navigation, aircraft communication systems or air traffic control machines, or for military use in connection with live combat; (3) in violation of any applicable law or regulation (in either the jurisdiction of use, or in Australia); (4) in which the Licensed Technology is rented or leased; (5) that misappropriates any of CNXION’s other products or services; (6) in support of a claim by you or any third party that the Licensed Technology infringes a patent: (7) or for any other purpose that we may notify you of from time to time.

You also may not sell, transfer, dispose of or grant a security interest, charge or mortgage in the Licensed Technology. Any attempt to do so shall be void and unenforceable against us.


2. User License


The Licensed Technology is licensed to you for use by a single User (other than Paid Plug-ins, which may also be used by your Paid Plug-in Users as described below).  The User may store the Licensed Technology on any of the User’s computers, but the Licensed Technology cannot be shared with others (including any other employees or agents) except through a permitted Distribution as described above.  

In order to access and download the Platform Code and Content, you must set up an Account.  You may not share or allow others to use your Account.  You are responsible for the security of your Account.  For questions regarding your Account, please go to wearecnxion.com/contact. We may restrict access to or block your access to your Account at any time, without prior notice if we reasonably believe you have breached any term of this Licence.

Under the License, the User may use the Licensed Technology for as long as you comply with this Agreement. If you allow an employee or contractor to use the Licensed Technology, you are responsible for that employee or contractor’s compliance with this Licence, and agree to indemnify us for any loss or damage we may suffer as a result of that employee or contractor breaching any term of this Licence.   


3. New Versions and Content


During the term of your License, you will be entitled to access future Versions of the Platform Code and new Content that CNXION chooses to make available to you.  CNXION does not have any obligation to make new Versions of the Platform Code or new Content available.  Nor does CNXION have any obligation to continue to make available for access or download any or all Versions of the Platform Code or Content.  However, any Versions of the Platform Code and Content that CNXION has made available to you, and for which you have accepted any applicable amendment to this Agreement as described in Section 22, are considered part of the Licensed Technology and may be used under the License (as amended by that amendment).

We may change features and functions available in each Version of the Platform Code. This may result in a changed usability experience, and some features may be permanently removed. You acknowledge that we are not required to maintain all features and functionality of the platform and we are not liable to you for any loss or damage you may suffer as a result of such changes.


4. Paid Content


CNXION may make Paid Content available to you for a fee.  Your License to Paid Content is subject to your payment of the associated fee.  In addition, your Paid Plug-in Users’ use of any Paid Plug-in under the License is subject to your payment of the associated fee for each Paid Plug-in User for that Paid Plug-in.  When you pay the fee to obtain Paid Content, you are purchasing from CNXION the right to have your License include that Paid Content.  Regardless of any references CNXION may make outside this Agreement to purchasing or selling Paid Content, Paid Content is licensed, not sold, to you under the License.

When you provide payment information to CNXION or its authorized processor, you represent that you are an authorized user of the payment card, PIN, key, account, or other payment method specified by you, and you authorize CNXION to charge such payment method for the full amount of the transaction. 

From time to time, CNXION may display links to Third Party Licensor Content on the Marketplace.  CNXION does not license or provide Third Party Licensor Content to you under this Agreement.  Any use of Third Party Licensor Content requires you to enter into a separate license agreement directly with the provider of the Third Party Licensor Content.  The terms of your license agreement with the provider of the Third Party Licensor Content will govern all matters related to your use of Third Party Licensor Content rather than the terms of this Agreement.  


5. Fees and Costs 


You agree to pay CNXION a royalty equal to 1% of all worldwide transaction value  actually attributable to each Product or Service, regardless of whether that revenue is received by you or any other person or legal entity, as follows:

     a.  Gross transaction value resulting from any and all in-app purchases, downloadable content, microtransactions, subscriptions, sale, transfer, or exchange of content created by end users for use with a Product, or redemption of virtual currency, either within a Product or Service or made externally but which directly affect the operation of the Product or Service;

     b.  The gross transaction value from in-app advertising and affiliate programs;

     c.  The gross transaction value from advance payments for a Product or Services (from a publisher or otherwise); and

     d.  The gross transaction value of any other form actually attributable to a Product or Service (unless excluded below).


However, no royalty is owed on the following forms of revenue:


     1.  The first $3,000.00 in gross revenue for each Product or Service per calendar quarter;

     2.  Consulting fees or work-for-hire fees which are non-recoupable for services performed using the Licensed Technology

     3.  Revenue from a Product or Service which solely relies on the Licensed Technology for production of non-interactive linear media (e.g., PDF, Docs, Emails) and which is Distributed in a form that does not contain the Licensed Technology      

     4.  Revenue from a Product or Service which is only Distributed to Platform Licensees (such as through the Marketplace);

     6.  Revenue from ancillary products which are not software and which do not contain embedded information (such as QR codes) which affects the operation of the Product (e.g., comic books, soundtracks, apparel); 

     7.  Financial winnings generated by awards for the Product or Service;

     8.  Revenue from donations for a Product or Service which are not tied to Product or Service access or in-Product in-Service benefits; and


The royalty is based on gross transaction value from end users, regardless of whether you sell your Product or Service to end users directly, self-publish via the App Store or any similar store, or work with a publisher.  The following simplified example illustrates the application of the royalty to gross sales:  if your Product earns $10 on the App Store, Apple may pay you $7 (having deducted 30% as a distribution fee), but your royalty to CNXION would still be 1% of $10 (or $0.10).

Royalties that you pay on an advance payment for a Product or Service that is recoupable by the payer, such as a bulk sale of end user accounts to a distributor, may be credited against future royalty payments that you incur under this Agreement for that Product or Service.

Royalties must be reported and paid on a per-Product per-Service basis.  The $3,000 per Product/Service per calendar quarter royalty exemption may not be aggregated across multiple Products.

Within 45 days after the end of each calendar quarter in which a Product or Service earns revenue outside of the above-listed royalty exclusions, you must pay to CNXION the full amount of the royalty due for that quarter and send CNXION a royalty report on a per Product / Service basis (the “Royalty Report”).  Detailed information on royalty reporting and payment can be found at wearecnxion.com/release.

If you do not provide us with the Royalty Report in the timeframe specified in this Licence, we may  - without prejudice to any other rights we have under this Licence or at law - provide you with an invoice for an amount that we believe is a reasonable estimate of the royalties due to us for that quarter. This invoice is called the “Estimate Invoice”. You agree that - in the absence of satisfactory evidence to the contrary - the amount shown in any Estimate Invoice is correct.

If we issue you with an Estimate Invoice, you must pay us that amount shown in the Estimate Invoice within the timeframe specified in the Estimate Invoice. 

If you pay an Estimate Invoice and later provide us with evidence that is satisfactory to us that the amount paid was higher than that required under this Licence, we will apply the amount overpaid by you as a credit on your next royalty payments. We are not required to make a refund of any overpayment made under an Estimate Invoice. We are not required to reimburse you for any interest which would have accrued on the overpayment.

The royalty will be payable under this Agreement with respect to each Product or Service for as long as any Platform Code or Content (including as modified by you under the License) incorporated in or used to make the Product are protected under copyright or other applicable intellectual property law.


6. Payments


For convenience, we quote our pricing in US Dollars, however all payments must be made to us in Australian Dollars. Payments made in currencies other than Australian Dollars are subject to the exchange rate for that currency that is offered by our bank at the time we receive the payment.

You must provide us with details of a valid Credit Card and all authorities necessary for us to be able to debit the fees and charges payable to us. We may immediately suspend your access to or ability to use any service that we provide you with under this Licence (without prior warning) if we are prevented from debiting your Credit Card for any reason including (but not limited to): insufficient funds to make payment, invalid or incorrect card details, faults or errors arising from the issuing bank or payment processor.

We may charge you interest on any overdue payment to us.

The interest payable will be an amount which is 3% above the Reserve Bank of Australia’s Cash Rate, which is published on the Reserve Bank of Australia’s website from time to time (https://www.rba.gov.au/statistics/cash-rate/) per calendar quarter (compounding).

You are responsible for all taxes on all payments required to be made by you under this Agreement (other than taxes that CNXION is obligated to pay on its income, which are CNXION’s responsibility).  If you are required by a government agency to reduce your payment to CNXION for any reason, you are required to provide sufficient documentation to CNXION supporting the withholding.  For questions about withholding taxes or taxes in general, please go to wearecnxion.com/contact

In this clause, the term “GST” means the Goods and Service Tax referred to under A New Tax System  (Goods and Services Tax) Act 1999, (the “GST Act”), and any other act which amends the GST Act.

All fees and payments quoted due to us are quoted without including any GST.

If any service that we provide is deemed to constitute a “supply” as defined within the GST Act, or we are required to make payment of GST on any amount which you have paid us, then you must pay us the amount of GST payable in addition to the amounts which are set out in this Licence. You indemnify, and keep us indemnified for any GST which we are required to pay as a result of any payment we receive from you.


7. Records and Audits

  

You agree to keep accurate books and records related to your development, manufacture, Distribution, and sale of Products and related revenue.  CNXION may conduct reasonable audits of those books and records.  Audits will be conducted during business hours on reasonable prior notice to you.  CNXION will bear the costs of audits unless the results show a shortfall in payments in excess of 1% during the period audited, in which case you will be responsible for the cost of the audit.


8. Support


In this clause 8, the following terms have the following special meanings:

  1. “Onboarding” means the work that we have agreed to carry out in the Onboarding Flow Phases, shown in our Sales Proposal Document; and

  2. “Onboarding Period” means the period of time in which we will carry out the Onboarding.

We will assist you in setting up the Licenced Technology for use during the Onboarding Period. During the Onboarding Period, we may provide assistance, advice or other work which we believe is reasonably necessary for you to utilise the Licence Technology for its intended purpose.

The Onboarding Period runs for a period of 84 days from the date you enter into this Licence. We may elect to extend the Onboarding Period, at our sole discretion.

At the conclusion of the Onboarding Period, we are not required to provide any further assistance, work or support with respect to the Licenced Technology. However, we may elect to provide additional assistance, work and support on terms which are at our own discretion.

Additional support resources may be obtained at wearecnxion.com/content.


9. Feedback and Contributions  


If you provide CNXION with any Feedback, CNXION is free to use the Feedback however it chooses.  If you make any Contribution available to CNXION, you hereby assign to CNXION all right, title, and interest (including all copyright, patent, and other intellectual property rights) in that Contribution for all current and future methods and forms of exploitation in any country.  If any of those rights are not effectively assigned under applicable law, you hereby grant CNXION a non-exclusive, fully-paid, irrevocable, transferable, sublicensable license to reproduce, distribute, publicly perform, publicly display, make, use, have made, sell, offer to sell, import, modify and make derivative works based on, and otherwise exploit that Contribution for all current and future methods and forms of exploitation in any country.  If any of those rights may not be assigned or licensed under applicable law (such as moral and other personal rights), you hereby waive and agree not to assert all of those rights.  However, you may continue to freely use any Feedback that you provide to CNXION, and you may continue to use, in any manner consistent with the License, any Contribution that you make available to CNXION. 

You understand and agree that CNXION is not required to make any use of any Feedback or Contribution that you provide.  You agree that if CNXION makes use of your Feedback or Contribution, CNXION is not required to credit or compensate you for your contribution.

You represent and warrant that you have sufficient rights in any Feedback or Contribution that you provide to CNXION to grant CNXION and other affected parties the rights described above.  This includes but is not limited to intellectual property rights and other proprietary or personal rights.


10. Third Party Software


The Platform Code includes Third Party Software components.  If Third Party Software has separate software license or attribution requirements, the license terms or other attribution requirements for Third Party Software components can be found in the installation directory for each Platform version (under the /licenses sub-folder).  By entering into this Agreement and using Third Party Software, you are accepting the terms of those licenses.  In this case, the Third Party Software terms will govern your use of the Third Party Software, and if there is inconsistency, those terms will take precedence over the terms of the License for the Third Party Software.  You agree that the owners of the Third Party Software are intended third party beneficiaries to this Agreement in relation to your uses of Third Party Software.  

To the fullest extent allowed by law, you agree that we are not liable to you for any loss, damage, cost (including loss of business) or other harm suffered by you as a result of any defect, breach, error or other failure of the Third Party Software.


11. Ownership


We and our licensors own all title, ownership rights, and intellectual property rights in the Platform Code and Content.  We are not required to grant you access to any Platform Code or Content that we own, and you are not permitted to attempt to gain access without our consent.

You own all rights in the Products or Services you develop under the License, other than the Platform Code and Content, Third Party Software, and any Contributions. You grant us a royalty free, worldwide, exclusive and non-transferable Licence to access, copy, alter, or otherwise utilise any code or content produced developed under this Licence for the purpose of allowing us to improve and enhance existing features or services that we offer, or for the purpose of allowing us to create new features and services for our own benefit or profit.

All rights granted to you under this Agreement are granted by express license only and not by sale, and all of those rights are limited by the terms of this Agreement.  No license or other rights will be created hereunder by implication, estoppel, or otherwise.  Any attempted sublicense under this Agreement that is not consistent with the terms of this Agreement will be null and void. 

You indemnify and keep us indemnified for any loss, damage or cost incurred as a result of any attempt to transfer, dispose of or sub-licence this Licence.

You warrant to us that any data, graphics, designs, photos, video, sounds, recordings or other intellectual property which you post, upload, link to, or otherwise attach to any app or website hosted on our server(s) belong to you, or you hold all necessary licences and permissions from the creator to post such material. You indemnify, and keep us indemnified for any cost, loss or damage we may incur as a result of your breach of this warranty.


12. Proprietary Notices and Attribution


You agree to retain and reproduce in all copies of the Licensed Technology the copyright, trademark, and other proprietary notices and disclaimers of CNXION and third parties as they appear in the Platform Code and the Content.  

You agree to place the following notices in the credits for any Product (replacing xxxx with the current year):

“[Product/Service name] uses the CNXION Platform.  CNXION is a trademark or registered trademark of CNXION in the Australia and elsewhere”

“CNXION Platform, Copyright 2016 – xxxx, CNXION.  All rights reserved.”

No other license or right in the CNXION or our Trademarks is granted under this Agreement.  All use of the CNXION and our Trademarks will inure to the sole benefit of CNXION and us.  You agree not to engage in any activity that could tarnish, dilute, or affect the validity or enforceability of the CNXION or our Trademarks or cause consumer confusion or diminish any goodwill relating to any of CNXION or our Trademarks.  If you wish to make further use of the CNXION Trademarks, please go to wearecnxion.com/branding-guidelines-and-trademark-usage

We may use your trademarks, service marks, trade names, and logos used with any Product, as well as publicly released screenshots and video content from the Product or Service, in connection with our marketing, advertising, and promotion of the CNXION Platform in any and all media without restriction.


13. Privacy Policy & Data Collection


In entering into this Licence and using the CNXION Platform, you accept the terms of our Privacy Policy, which can be viewed at: wearecnxion.com/privacy-policy

We may update our Privacy Policy from time to time. When we update our Privacy Policy, we may send  ask you to agree to the terms of this Licence again. If you do not agree, we are permitted to prevent you from accessing CNXION until you agree.

If you are a resident of the European Union, you agree that:

  1. We are not based within the European Union; and

  2. We do not market directly to, or target clients within the Eurpoean Union, and

  3. We are not bound by Regulation (EU) 2016/679 “General Data Protection Regulation”.

You acknowledge that, as a default setting, the Platform Code will collect and send to us hardware and usage data from end users of Products and Services.  This functionality is used by us to improve the Platform Code and may be used to allow us (and other third parties) to market services and products to you, and your end users  

You must take all steps necessary to ensure that all agreements, licences and privacy policies that you enter into with your end users allow us to carry out all steps set out within this Licence.


14. Disclaimers and Limitation of Liability 


The Licensed Technology, the Marketplace, and all other materials and information provided by us (the “CNXION Materials”) are provided on an “as is” and “as available” basis, “with all faults” and without warranty of any kind. 

To the fullest extent possible at law, we, our licensors, our affiliates disclaim all warranties, conditions, common law duties, and representations (express, implied, oral, and written) with respect to the CNXION Materials, including without limitation all express warranties, implied warranties, and conditions of any kind, such as title, non-interference with your enjoyment, authority, non-infringement, merchantability, fitness or suitability for any purpose (whether or not CNXION knows or has reason to know of that purpose), system integration, accuracy or completeness, results, reasonable care, workmanlike effort, lack of negligence, and lack of viruses, whether alleged to arise under law, by reason of custom or usage in the trade, or by course of dealing.  Without limiting the generality of the foregoing, CNXION, its licensors, and its and their affiliates make no warranty that (1) any of the CNXION Materials will operate properly, including as integrated in any Product or Service, (2) that the CNXION Materials will meet your requirements, (3) that the operation of the CNXION Materials will be uninterrupted, bug free, or error free in any or all circumstances, (4) that any defects in the CNXION Materials can or will be corrected, (5) that the CNXION Materials are or will be in compliance with a platform manufacturer’s rules or requirements, or (6) that a platform manufacturer will approve any of your Products, or will not revoke approval of any Product for any or no reason. CNXION, its licensors, and its and their affiliates do not guarantee continuous, error-free, virus-free, or secure operation of or access to the CNXION Materials.  This paragraph will apply to the maximum extent permitted by applicable law. 

To the maximum extent permitted by applicable law, neither CNXION, its licensors, nor its or their affiliates, nor any of CNXION’s service providers, shall be liable in any way for loss or damage of any kind resulting from the use or inability to use the CNXION Materials or otherwise in connection with this Agreement, including but not limited to loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses.  In no event will CNXION, its licensors, nor its or their affiliates, nor any of CNXION’s service providers be liable for any loss of profits or any indirect, incidental, consequential, special, punitive, or exemplary damages, or any other damages arising out of or in connection with this Agreement or the CNXION Materials, or the delay or inability to use or lack of functionality of the CNXION Materials, even in the event of CNXION’s or its affiliates’ fault, tort (including negligence), strict liability, indemnity, product liability, breach of contract, breach of warranty, or otherwise and even if CNXION or its affiliates have been advised of the possibility of such damages.  These limitations and exclusions regarding damages apply even if any remedy fails to provide adequate compensation.

However, nothing in this clause constitutes an attempt to contract out of the Australian Consumer Law, as shown at Schedule 2 of the Competition and Consumer Act 2010 (the “ACL”).

Where the standard of service provided by us does not meet the standards imposed by the ACL, you agree that  our liability to you is limited to the lesser of either:

  1. Resupply of the services and work which failed to meet the required standard; or

  2. Damages calculated at 10% of the total costs and royalties that you paid to us in the quarter in which the error or fault complained of arose.

You agree that you will limit any claim in any court or tribunal against us to the amounts specified above.

You agree that any liability that we may have to your for any loss, damage or other cause of action arising from the services provided or this Licence will expire on the earlier of either:

  1. Two years from the date you would reasonably have been expected to become aware of such loss, damage or other cause of action; or

  2. Two years from the date you made the last payment to us for any amount due under this Licence.

  3. You agree that any claim against us that is raised after the timeframes set out above are barred, and consent to us pleading this clause as a complete defence to any claim raised.


15. Indemnity


You agree to indemnify, pay the defense costs of, and hold CNXION, its licensors, its and their affiliates, and its and their employees, officers, directors, agents, contractors, and other representatives harmless from all claims, demands, actions, losses, liabilities, and expenses (including legal fees, costs, and expert witnesses’ fees on an “own client” basis) that arise from or in connection with (a) any step that we take to enforce a  term of this Licence against you as a result of your breach (or threatened breach) of this Licence, regardless of whether or not such step requires us to commence proceedings in any court or tribunal, (b) any claim brought by any third party to whom you Distribute or sublicense the Licensed Technology in violation of this Agreement (including without limitation any claim that the Licensed Technology infringes a patent), (c) any claim that any Product or any other matter you created, or your exercise of the CNXION Licenses, infringes any third party’s intellectual property rights or other proprietary or personal rights (except to the extent of any claim that your authorized use of unmodified Platform Code or Content originally provided to you by CNXION under this Agreement infringes any patent, trademark or copyright), or (d) any federal, state, or foreign civil or criminal actions related to any Product.  You agree to reimburse CNXION on demand for any costs incurred by CNXION and any payments made or loss suffered by CNXION, whether in a court judgment or settlement, based on any matter covered by this Section 15.

If you are prohibited by law from entering into the indemnification obligation above, then you assume, to the extent permitted by law, all liability for all claims, demands, actions, losses, liabilities, and expenses (including legal s’ fees, costs and expert witnesses’ fees on an “own client” basis) that are the stated subject matter of the indemnification obligation above.  

In all cases, you agree that any costs, fees, loss or damage recoverable by us under this clause 15 may be recovered from you as a liquidated debt.


16. Export Compliance


You agree to comply with all applicable federal and foreign laws, regulations, and rules, and complete any required undertakings.  You will obtain any necessary export license or other governmental approval prior to accessing, downloading, exporting, re-exporting, or releasing the Licensed Technology. You represent and warrant that at all times during the course of this Licence,  you are not and will not deal with any person or entity that is) prohibited in engaging in any international trade arrangements, by reason of any sanction, law or declaration by any government or competent entity.


17. Term and Termination


A. Term of the License.  This Licence Agreement will continue in effect unless terminated as described below.

B. Termination by us.  We may terminate this Licence  in the manner set out below:


  1. No Fault Termination - We may terminate this Agreement for any reason whatsoever by giving you 30 days notice in writing.

  2.  Termination for Breach - if you breach any term of this Licence, or we reasonably suspect that you have breached a term of this Licence, we will provide you with notice stating how we consider you have breached this Licence and the steps we require you to take to remedy the breach. If you fail to take the steps required to remedy the breach within 7 days, we may - without prejudice to any other rights we may have under this Licence or at law - terminate this Licence..


C. Termination for by you - You may terminate this Licence by giving us 30 days notice in writing, provided you are not in breach of the Licence at the date of giving such notice, and do not fall into breach of the Licence during the following 30 days.

D. Effect of Termination - On termination of the Licence you must (a) no longer exercise any of the rights granted to you by the CNXION Licenses, a(b) destroy all copies of the Licensed Technology in your possession and cease distributing any Products developed under this Agreement.  (c) destroy all Products in your inventory.; within 30 days of the date the Licence terminates: provide us with a Royalty Report for the period up to the end of the Licence; and (e) pay us the any royalties or outstanding charges due under this Licence within 7 days of receiving a request for payment from us.

If we terminate the Licence as a result of a breach by you, then in addition to the requirements set out in clause 17D (Effect of Termination), we may also take all steps necessary to enforce any rights arising against you for a breach of this Licence, including (but not limited to) commencing court proceedings for damages and costs, or equitable orders such as injunctions or orders for specific performance.

E. No Refunds  

Except to the extent required by law, all payments, fees and royalties are non-refundable under all circumstances, regardless of whether or not this Licence has been terminated.

F. Surviving Provisions

Sections 5-7, 9-11, 13-15, 17-19, and 23-27 will survive termination of this Agreement.


18. Governing Law and Jurisdiction


You agree that this Agreement will be deemed to have been made and executed in the State of Queensland, Australia, and any dispute will be resolved in accordance with the laws of Queensland, excluding that body of law related to choice of laws, and of the Australia.  

Any action or proceeding brought to enforce the terms of this Agreement or to adjudicate any dispute must be brought in the Brisbane Registry of either the Magistrates Court, the District Court or the Supreme Court of Queensland,.  You agree to the exclusive jurisdiction and venue of these courts.  You waive any claim of inconvenient forum and any right to a jury trial.  The Convention on Contracts for the International Sale of Goods will not apply.  Any law or regulation which provides that the language of a contract shall be construed against the drafter will not apply to this Agreement.

If you commence any action to have any dispute arising from this Licence heard in any other jurisdiction, you agree to pay our legal costs (on an “Own Client” basis) incurred in responding to such action, regardless of whether or not you are ultimately successful is such action.


19. Class Action Waiver


You agree not to bring or participate in a class or representative action, private attorney general action, or collective arbitration related to the Licensed Technology or this Agreement.  You also agree not to seek to combine any action or arbitration related to the Licensed Technology or this Agreement with any other action or arbitration without the consent of all parties to this Agreement and all other actions or arbitrations.


21. Independent Contractor


You and CNXION are independent contractors and are not the legal representative, agent, joint venturer, partner, or employee of the other.  Neither party has any right or authority to assume or create any obligations of any kind or to make any representation or warranty on behalf of the other party.


22. Amendments of this Agreement

  

CNXION may issue an amended Agreement at any time in its discretion by providing notice to you or by providing you with digital access to the amended Agreement when you next log in to your Account, access the Marketplace, or download additional Content or new Versions.  You are not required to accept the amended Agreement.  However, in order to continue accessing your Account or the Marketplace or to download or use additional Content or new Versions, you must accept the amended Agreement.  By logging in to your Account, using the Marketplace, or downloading or using additional Content or a new Version, you hereby agree to be bound by the amended Agreement then most recently issued by CNXION.  If you do not accept the amended Agreement, you may not log in to your Account, access the Marketplace, download or use additional Content, or download or use any new Version that is made available by CNXION contemporaneously with or after the issuance of that amended Agreement (but this will not terminate your License for the Licensed Technology that you downloaded prior to the issuance of the amended Agreement).  If you are a company, acceptance of an amended Agreement by any of your Users will be binding on you.


23. Notices


Where this Agreement calls for notice from CNXION, including written notice, CNXION may provide notice to you at the email address that you provided when you registered for the License (or any updated email address you subsequently provide).  CNXION’s notices to you will be effective when they are sent to that email address.


24. No Assignment


You may not, without the prior written consent of CNXION, assign, transfer, charge, or sub-contract all or any of your rights or obligations under this Agreement, and any attempt without that consent will be null and void.  You also may not transfer your Account.  CNXION may at any time assign, transfer, charge, or sub-contract all or any of its rights or obligations under this Agreement.  For clarity, you are not prohibited by CNXION from assigning or transferring your rights in your Product, other than the Platform Code, Content, and Contributions.  Third Party Software assignment and transfer is governed by the terms of the applicable licenses.


25. Definitions


As used in this Agreement, the following capitalized words have the following meanings:

“Account” means a user account with a unique ID and associated password selected by you, which enables you to download the Platform Code and Content under the License.

“Content” means any code, artwork, or other content that CNXION makes available to you for use with the Platform Code, other than any Unreal Tournament Content and any Robo Recall Content.  For clarity, Content includes but is not limited to Paid Content and CNXION-Only Content.

“Contribution” means any code, whether in Source Code format or object code format, or any other information or content that you make available to CNXION by any means (e.g., via submissions to forums, wiki, or CNXION’s Gitlab/GitHub CNXION Platform Network, or through email or otherwise).  However, code, information, or content that you only make available to CNXION as part of a Marketplace Submission at wearecnxion.com/marketplace/submissions, and any Modified Platform Tools Package that you provide to CNXION for Distribution, do not constitute Contributions.  In addition, mere use of code or content with the Licensed Technology, without making that code or content available to CNXION, does not constitute a Contribution.

“Custom License” means any agreement between you and CNXION, or any sublicensor authorized by CNXION, other than this Agreement or any amendment to this Agreement, under which you are granted a license to use the CNXION Platform to develop one or more product(s).

“Custom Product” means a product developed pursuant to a Custom License.

“Distribute” means to provide or otherwise make a copy available, or to make its functionality available on a network.

“Platform Code” means the Source Code and object code of the CNXION Platform, including any future Versions, as made available to you by CNXION under this Agreement, and any object code compiled from that Source Code.

“Platform Licensee” means a third party who is separately licensed by CNXION to use the Platform Code and Content.

“Platform Tools” means (a) editors and other tools included in the Platform Code; (b) any code and modules in either the Developer or Editor folders, including in object code format, whether statically or dynamically linked; and (c) other software that may be used to develop standalone products based on the Licensed Technology.

“CNXION” means:

a. CNXION, a Queensland Company having its principal business offices at 4 Cherokee Cres, Mudgeeraba, QLD, Australia; or 

“CNXION Licenses” means the License

“CNXION Trademarks” means the trademarks, service marks, trade names and logos associated with CNXION, CNXION’s and other intellectual property, and the CNXION Platform.

“Examples” means the Platform Code and Content made available by CNXION in the Samples and Templates folders in the install directory or in the Content Examples projects available through the Marketplace. 

“Feedback” means any feedback or suggestions that you provide to CNXION regarding the Licensed Technology or the Marketplace.  

“Licensed Technology” means any or all of the Platform Code and the Content, including as modified by you under the License.

“Marketplace” means the CNXION Platform digital marketplace or other CNXION Platform learning resource maintained by CNXION or its affiliates, through which, among other things, CNXION makes certain Content and Platform Code available for use under the License. 

 “Modified Platform Tools Package” means (a) Platform Tools, as modified by you under the License, that you provide to CNXION for Distribution, and (b) any code, artwork, or other content that you provide to CNXION for Distribution for use with the modified Platform Tools.

“Paid Content” means Content made available to you through the Marketplace for an additional fee, including but not limited to Paid Plug-ins.

“Paid Plug-in” means any Paid Content which includes a Python code plug-in. 

“Paid Plug-in User” means, for a particular Paid Plug-in, your individual employee or contractor for whom you have purchased the right to have your License include their use.

“Product” means any product developed under this Agreement that is made using the Licensed Technology or that combines the Licensed Technology with any other software or content, regardless of how much or little of the Licensed Technology is used.  

“Service” means any service developed under this Agreement that is made using the Licensed Technology or that combines the Licensed Technology with any other software or content, regardless of how much or little of the Licensed Technology is used.  

“Source Code” means the human readable form of a software program, including all modules it contains, plus any associated interface definition files, scripts used to control compilation, and installation of an executable (object code).

“Third Party Licensor Content” means third party content to which CNXION displays links in the Marketplace and that is designated in the Marketplace as content licensed directly from the third party content provider.

“Third Party Software” means third party software components included in the Platform Code.  For avoidance of doubt, software in the following directory - /Platform/Extras/ThirdPartyNotUE/ - is not Third Party Software under this Agreement and is not distributed under this Agreement.

“CNXION-Only Content” means Content that is designated in the Marketplace as usable only in conjunction with the Platform Code.  

“CNXION Platform” means the proprietary computer software program known as the CNXION Platform and any updates or upgrades to the program made available by CNXION.

“User” means an individual user who uses a valid Account to access the Platform Code, Content, and the Marketplace.  If you are an individual, “User” means you.  For legal entities, “User” means the individual employee or agent through whom you are exercising rights under this Agreement.

“Version” means any updated or upgraded version of the Platform Code or Content that CNXION chooses to make available to the public.

“You,” “your” or “yourself”, whether or not capitalized in this Agreement, means the person or other entity that is  listed on the first page of this agreement. If You are a natural person, then the term “You” “your” or “yourself” also refers to you executors, heirs and legal representatives..  If you are a corporation or trust, “you,” “your” and “yourself” includes any entity that controls, is controlled by, or is under common control with you, where “control” means the power, direct or indirect, to cause the direction or management of the entity in question, whether by contract or otherwise, or ownership of 50% or more of the outstanding shares or beneficial ownership of the entity in question.


27. Miscellaneous


This Agreement and any document or information referred to in this Agreement constitute the entire agreement between you and CNXION relating to the subject matter covered by this Agreement.  All other communications, proposals, and representations with respect to the subject matter covered by this Agreement are excluded.  

The original of this Agreement is in English; any translations are provided for reference purposes only.  You waive any right you may have under the law of your country to have this Agreement written or construed in the language of any other country.

This Agreement describes certain legal rights. You may have other rights under the laws of your jurisdiction. This Agreement does not change your rights under the laws of your jurisdiction if the laws of your jurisdiction do not permit it to do so. Limitations and exclusions of warranties and remedies in this Agreement may not apply to you because your jurisdiction may not allow them in your particular circumstance.  In the event that certain provisions of this Agreement are not enforceable in your jurisdiction, those provisions shall be enforceable to the furthest extent possible under applicable law.

Any act by CNXION to exercise, or failure or delay in exercise of, any of its rights under this Agreement, at law or in equity will not be deemed a waiver of those or any other rights or remedies available in contract, at law or in equity.

Unless otherwise stated in this Agreement, if any term of this Agreement is held by a court or tribunal of competent jurisdiction to be unenforceable, the term will be enforced to the maximum extent permissible and the remaining terms of this Agreement will remain in full force and effect.  You agree that this Agreement does not confer any rights or remedies on any person other than the parties to this Agreement, except as expressly stated.

CNXION’s obligations are subject to existing laws and legal process, and CNXION may comply with law enforcement or regulatory requests or requirements despite any contrary term in this Agreement.