DICK SMITH CARE
This agreement is between Dick Smith Electronics Pty Ltd (ABN 34 000 908 716) ("
we"
, "
us"or "
our") and the person described as the customer in the Order ("
you"or "
your").
1 About this agreement
(a) We offer a range of diagnostic services packages which include operational support, computer maintenance services and/or other services for certain computers, as further described in the detailed product information at dicksmith.com.au ("Services").
(b) You may ask us to provide certain of the Services by completing and submitting an order form provided by us to you ("Order"), whether through our website or otherwise, to us. If we accept your Order, then we will provide the relevant Services to you on these terms and conditions and the terms set out in the Order (together, the "Agreement"). These terms and conditions prevail over the terms set out in the Order to the extent of any inconsistency.
2 Services
2.1 Supply of Services
(a) We will supply the relevant Services set out in the Order to you on the terms of this Agreement. Unless otherwise agreed, all Services apply only to the single computer specified in the Order.
(b) We reserve the right to determine the method, manner and means by which the Services will be performed. We are not required to perform the Services for you during any particular hour of the day or night,and the time spent accessing your computer is at our discretion, subject to your access times and security requirements. You further agree that we are not required to devote our efforts full-time to the performance of the Services, that we have other clients and that we offer services to the general public. The order and sequence in which the Services are to be performed will be subject to our discretion.
(c) We may send you service related messages via email or your mobile phone, for example, in relation to scheduled maintenance, credit card expiry and updates.
2.2 Extra services
We are not required to provide additional time and/or services that are not set out in the service description referred to in clause 1(a) , the Order or that are in addition to the scope of a pre-booked job set out in an Order ("Extra Services"). If you ask us to perform any Extra Services and we agree to do so, at our discretion and subject to availability, then we will perform those Extra Services under the terms of this Agreement. If so, you agree to pay us the fees for the Extra Services calculated on a time and materials basis at our then current rates and any other fees for those Extra Services that we notify you at that time.
2.3 Service Period
We will supply the relevant Services to you on the date specified in the Order(or, if not specified, the date we accept the Order) for the period specified in that Order ("Service Period"), unless earlier cancelled or terminated in accordance with this Agreement.
2.4 Products
(a) A Service may include the supply of an internet security and online back-up computer software package or other software packages("Product"). If that Service is selected by you in the Order, then we will provide the Product to you as part of that Service .
(b) The Product is subject to the terms and conditions of the licensor of that Product, and your use of that Product is subject to those terms and conditions.
(c) Unless otherwise specified, you are responsible for installing the Product. If you do not install the Product,then we may not be able to provide the Services, or a relevant part of the Services, to you, and we will not be liable for any such non-performance.
(d) We may also request that you download or install other software on your computer to enable us to provide the Services to you ("Additional Products"). By obtaining any such Additional Products, you agree to the terms of that end user licence agreement specified by the licensor for those Additional Products, including the terms set out in Attachment 1 to these terms and conditions, or otherwise provided to you with the relevant Additional Product. If you do not down load or install the requested Additional Products, then we may not be able to provide the Services, or the relevant part of the Services, to you, and we will not be liable for any such non-performance.
2.5 Exclusions
(a) Subject to paragraph (b) and unless otherwise specified in the Order, the Services do not include:
(i) transfer of the Services to a computer other than the computer specified in the Order pursuant to clause 2.1;
(ii) electrical or other environmental work;
(iii) support for servers and complex networked environments;
(iv) hardware fixes;
(v) fixes for manufacturer related software malfunctions;
(vi) administration tasks (e.g. e-mail filing or other) and set-up or administration of domains, web site, servers, VOIP phone;
(vii) router/network devices;
(viii) third party software usage issues such as for accounting programs, CAD programs, video/music/photo editing etc;
(ix) installation of software packages;
(x) where the Services are not performed on a newly purchased computer, more than 30 minutes of our time remedying any pre-existing issue in such a computer.
(xi) any other services specifically excluded in the service descriptions set out in the detailed product information at dicksmith.com.au.
(b) We may provide services for the items referred to in paragraph 2.5(a) under the terms of this Agreement at a later date at a charge notified by us to you at that time. If those charges are performed on a time and materials basis, then the estimated fees provided by us are indicative quotes only. If you decide not to pay the additional Fees required to complete the services, then we will not charge you any additional Fees, but we may not be able to complete all of the Services specified in the Order.
(c) We are not obliged to supply the Services for any products (including the Product and Additional Products) that are unlicenced (or which are used in breach of its licence terms). We will not support any illegal practices and do not in any way condone any such illegal practices.
(d) If we, in our discretion, offer you a trial package, only one trial package per computer is permitted. If you accept a trial package, you give permission for us to call you, email you and also send you messages via the help desk during and after the trial period. This correspondence will be to deliver you with the trial package services and remind you of the opportunity to take up Services. You may opt out of receiving this correspondence at anytime following the end of the trial period or by requesting to cancel the service via email at service@mobiletechxperts.com.au.
(e) Response times cannot be guaranteed for support hours of over 2 hours per computer in any one month.
(f) While we will use due care and skill and all commercially reasonable efforts to provide the services you require, we cannot guarantee that the Services will fix or resolve any or all of your computer issues, problems or concerns.
2.6 Limitations
We may not be able to provide the Services (and are not liable for any such failure to provide the Services) if:
(a) you do not have a working broadband internet connection to receive the Services;
(b) if relevant, you have:
(i) not installed the Product or the Additional Products to allow us to perform certain of the Services; or
(ii) altered, modified or disables the Product or the Additional Product or its settings or configurations;
(c) in our reasonable opinion, you have not complied with your obligations under this Agreement or you do not follow our reasonable instructions, for example, you actively or continuously download malicious software or visit sites that cause this to happen despite our warnings;
(d) you do not schedule the Services to be performed where those Services are required to be scheduled by you;
(e) you have not paid any Fees which are due and owing at the time we are required to provide the Services to you; or
(f) an event beyond our reasonable control occurs that impact the provision of the Services.
2.7 On-site services
Where the Service package includes an on-site service, that service will be supplied to you at the site specified in the Order ("Site"). To enable us to perform the Services, you must:
(a) provide us with full and safe access to the Site including, where relevant, the facilities, equipment, software and network at that Site;
(b) provide us with a safe working environment and, where relevant, safe access to electrical power;
(c) ensure all relevant outlets (for example, Foxtel outlets) and antennae are in good working order; and
(d) ensure that an adult is present at the Site for the entire period the Services are performed.
2.8 Remote access
(a) You grant to us (and our nominees), the right to:
(i) access your computer remotely for the purpose of providing you with the Services specified in the Order; and
(ii) modify your computer systems to the extent necessary to provide the Services specified in the Order.
(b) The delivery of remote access and delivery of Services may require the use of data provided by your internet service provider. Please contact your internet service provider regarding pricing for data usage.
2.9 Cancellations
(a) You may cancel the Services by notice to us. If you cancel the Services:
(i) you are entirely responsible for the removal of the Product and any Additional Products from your computer; and
(ii) within the first three months, you must pay the Fees for a minimum three month period (if they have not been otherwise paid in advance).
(b) We may cancel one or more Services immediately by notice to you if:
(i) you breach this Agreement, and fail to remedy that breach within 10 days of our notice to do so (or such longer period as specified in our notice);
(ii) you do not make a payment of the Fees by the due date,and fail to make such payment within 10 days of our notice to do so (or such longer period as specified in our notice); or
(iii) you are declared bankrupt or otherwise become subject to the laws of bankruptcy or, where relevant, you are or become insolvent .
3 Fees and payments
3.1 Fees
(a) You agree to pay all fees and charges (including any minimum charges) under this Agreement ("Fees"). Unless otherwise specified, all Fees are exclusive of GST.
(b) The Fees will be specified in the Order or, if not so specified, the Fees will be our then current relevant fees and charges. We will provide our current fees and charges to you on request.
(c) You will pay the Fees in advance, on either an up front or monthly basis as specified in the Order, unless otherwise agreed. You agree to pay the applicable Fees immediately on receipt of our invoice or as otherwise set out in the Order.
(d) We provide the Services at sites throughout Australia . If the Services include on-site services at a Site that is not located within a 30 kilometre radius of a Dick Smith store, then we may charge you a travel charge of 79 cents per kilometre from our closest Dick Smith store to that Site.
3.2 Credit card information for monthly Fees
(a) You must provide Us with valid credit card (or visa/mastercard/amex debit card) details in relation to the monthly Fees.
(b) You agree to promptly notify us whenever your personal or billing information changes (including for example, your name, address,telephone number, credit card/debit card number or credit card/debit card expiration date);
(c) For any amount:
(i) not paid to us when due; or
(ii) paid by you via credit card/debit card which:
(A) the credit card issuer (the "issuer") later rejects or refuses to pay; or
(B) we are later required to reimburse the issuer, (each, a "chargeback")
then in each case, you agree to pay, in addition to the amount not paid, rejected or refused, any fees charged to us by the issuer. You agree to pay all reasonable costs incurred by us in collecting any amounts that you owe to us, whether incurred before or after any legal proceedings are commenced.
3.3 Taxes
(a) Subject to paragraphs (b) and (c), you must pay all taxes in connection with this Agreement.
(b) Where GST is imposed on a taxable supply made in connection with this Agreement and the recipient of that supply receives a tax invoice for that supply, the recipient must pay the GST to the supplier (without deduction or set off) by the tax invoice due date.
(c) If one party is required to indemnify or reimburse another party (Payee) for any cost, loss or expense, the indemnity or reimbursement payable does not include any amount for which the Payee (or an entity grouped with the payee for GST purposes) is entitled to an input tax credit, but will be increased in accordance with paragraph (b) if the amount payable is consideration for a taxable supply.
4 Risk and title
(a) Where relevant, the risk of loss or damage to the Product or Additional Products passes to you when we inform you that the Services have been successfully completed.
(b) Property in and title to each Product remains with us until we have received the Fees in full.
5 Warranty
5.1 Our warranty
(a) We warrant that the Services will be performed in a good and workmanlike manner, but do not warrant that the output of the Services will be free from all defects or that we can remedy or rectify any such defects.
(b) Subject to clause 6 , the Product and Additional Products supplied by us under this Agreement are covered by the relevant manufacturer's warranty. Please see the included documentation with your Product for more information on such warranty.
5.2 Your warranties
You warrant that:
(a) if relevant, you are the owner or lawful occupier of the Site, and have obtained all necessary permission and consents to enable us to perform the Services at the Site;
(b) you are the owner of the computer to which the Services relate, or you have obtained all necessary permissions and consents, to enable us to perform the Services on the computer; and
(c) you have the authority to enter in this Agreement.
6 Limitation of liability
6.1 Consumer customers
If you acquire the Services wholly or predominately for personal, domestic or household use or consumption, the following terms apply to you:
(a) We are responsible for loss suffered by you as a result of our breach of this contract if the loss was or should have been reasonably foreseeable by both you and us when this contract was entered into. We are not responsible for the types of loss set out in clause 6.1(d) .
(b) We are responsible for loss suffered by you as a result of our negligence if the loss was or should have been reasonably foreseeable when our negligence occurred. We are not responsible for the types of loss set out in clause 6.1(d) .
(c) You must back up your data on your systems. Subject to clause 6.1(a) and (b), we exclude all liability to you for loss or corruption of data or records, the cost of rebuilding, repairing or replacing lost or corrupted data, loss of use of any computer or network systems, or any damages claimed by you based on a third party claim.
(d) In addition to the types of loss excluded above, we are not responsible for:
(i) loss that was not caused by our breach of contract or by our negligence;
(ii) loss that was not reasonably foreseeable;
(iii) any increase in loss that was caused by your breach of contract or your negligence; and
(iv) business losses (such as lost data, lost profits,failure to realise expected profits or savings, lost revenue or business interruptions) or loss suffered by non-consumers.
(e) You must take reasonable steps to minimise the extent of any loss you may suffer as a result of the Services.
6.2 Business customers
If you do not acquire the Services wholly or predominately for personal, domestic or household use or consumption, the following terms apply to you:
(a) Except as expressly stated in clause 5.1 and to the maximum extent permitted by law, we exclude all other conditions, warranties, liabilities or representations(express or implied, including terms implied or guarantees conferred by statute, law, equity, trade custom, prior dealing or otherwise) in relation to this Agreement or its subject matter, including all implied warranties concerning the performance, merchantability, suitability, non-infringement or fitness for a particular purpose of any of the Services, Product or Additional Products.
(b) Where a term is implied into this Agreement by law or a guarantee is conferred by law and such a term cannot be excluded then, to the maximum extent permitted by law, we limit our liability for a breach of such non-excludable terms to (at our option):
(i) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods or payment of the cost of having the goods repaired; or
(ii) in the case of services, the supplying of the services again or payment of the cost of having the services supplied again.
(c) Subject to clause 6.2(b) , we will not be liable to you for indirect and consequential loss (including loss of revenue, loss of profits, failure to realise expected profits or savings and any other commercial or economic loss of any kind) in contract, tort, under any statute or otherwise (including negligence) arising from or connected to this Agreement.
(d) You must back up your data on your systems. Subject to clause 6.2(b) , we exclude all liability to you for loss or corruption of data or records, the cost of rebuilding, repairing or replacing lost or corrupted data, loss of use of any computer or network systems, or any damages claimed by you based on a third party claim.
(e) Subject to clause 6.2(b) and 6.2(c) , our liability for loss or damage of any kind, however caused, whether in contract, tort, under any statute or otherwise (including negligence) arising out of or in connection with this Agreement, is limited for all claims in the aggregate to the Fees paid and payable under the Order.
7 Interpretation
In this Agreement, the words "including", "for example" or "such as" do not limit the meaning of the words to which the example relates or examples of a similar kind.
Attachment1 - iTOK Help Desk EULA
HelpDesk software
END USER LICENSE AGREEMENT
This End User License Agreement ("Agreement") is entered into by and between the user of this software ("you,""your" or "Licensee") and iTOK, Inc. ("we" or "Licensor"). You acknowledge that you have read this Agreement, that you understand it, and that you agree to honour and be bound by the terms and conditions contained herein. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software is licensed, not sold.
1. GRANT OF LICENSE
Subject to the terms and conditions of this Agreement, we grant to you a perpetual (subject to earlier termination as provided herein), worldwide, non-exclusive license to use the Software solely in conjunction with, and for the exclusive purpose of, receipt of Dick Smith Electronics Pty Ltd services through their third party service provider Quick Knowledge Pty Ltd.
2. TERMS AND CONDITIONS
2.1 You may make a reasonable number of copies of the Software, but solely for archival and backup purposes. If the Software contains documentation which is provided only in electronic form, Licensee may print one copy of such electronic documentation. All copies are subject to the provisions of this Agreement. Notwithstanding the foregoing, you may not copy the printed materials accompanying the Software. You must maintain an accurate record of the location of the copies of the copyright notice on all copies.
2.2 You license the Software on a per computer basis, and the installation of the Software for us on additional computers requires you to enter into a separate and independent license agreement applicable to each such computer.
2.3 The license granted herein is personal to you and is not transferable or assignable. In particular, you shall not attempt to sublicense, rent, lease, or otherwise transfer or permit any use by another of the Software or use the Software to benefit any third party.
2.4 You shall not reverse engineer, decompile, or disassemble the Software for any purpose whatsoever,nor shall you attempt to create the source code from the object code for the Software.
2.5 You shall not remove or alter any proprietary notice on the Software.
2.6 Use of the Software by you is subject to audit by Licensor to insure compliance with the terms and conditions of this Agreement. Non-compliance with these terms and conditions will result in the immediate termination of this license and may subject you to civil penalties as provided by law.
3. OWNERSHIP AND TITLE
You acknowledge that we retain the entire right, title and interest in and to the Software and all associated intellectual property rights (including, without limitation, all copyrights)related to the Software. No title to or ownership of the Software, or any proprietary rights related to the Software,is transferred under or by virtue of this Agreement. We reserve all rights not expressly granted in this Agreement. Any attempt by you to transfer any ownership rights in the Software shall be null and void.
4. CONFIDENTIALITY
4.1 In the performance of this Agreement or in contemplation thereof, you may have access to private or confidential information which we own or control or have controlled, including without limitation the Software (all such information collectively, the"Confidential Information").
4.2 You agree to maintain in strict confidence the Confidential Information. You shall secure and protect all Confidential Information. You acknowledge that you shall be responsible for any unauthorized disclosure of the Confidential Information and that any such breach shall be grounds for immediate termination of this Agreement.
4.3 You acknowledge that the unauthorized use, disclosure or transfer of the Confidential Information will: (i) substantially diminish the value to the Licensor of the Confidential Information; (ii) render Licensor's remedy at law for such unauthorized use, disclosure or transfer inadequate; and cause irreparable injury in a short period of time. If you breach any of your obligations with respect to the Confidential Information we shall be entitled to equitable relief to protect Licensor interests therein, including, but not limited to, preliminary and permanent injunctive relief. Such equitable remedies shall not be deemed to be the exclusive remedies for the breach shall be in addition to all other remedies available pursuant to this Agreement or at law or equity.
5. NO MAINTENANCE AND CUSTOMER SUPPORT
This Agreement does not provide you with any right to maintenance or support from Licensor, or any rights to receive any upgrades, fixes, modifications or other updates to the Software(collectively, "Updates"). However, if you receive or obtain access to any Updates, from Quick Knowledge Pty Ltd or otherwise,you hereby agree (i) that such Updates shall be treated in all respect as Software per the terms and conditions of this Agreement, and (ii) the term"Software" as used in this Agreement shall thereafter include such Updates.
6. TERM AND TERMINATION
6.1 This Agreement shall continue in effect until we terminate it as provided in any other section of this Agreement or with written notice upon the occurrence of any of the following events: (i) you breach any provision of this Agreement; (ii) you become insolvent;admit in writing of your insolvency or inability to pay your debts as they become due; (iii) you make or propose an assignment for the benefit of creditors; (iv) you commence or have filed against you any bankruptcy,reorganization, liquidation or insolvency proceeding under any law in any country for the relief of debtors; or (v) if any receiver, trustee, liquidator or custodian is appointed to take possession of a substantial portion of your assets.
6.2 Immediately upon termination or expiration of this Agreement, you shall delete and destroy all copies of the Software. Except with respect to the termination of the license grant hereunder, all other rights and obligations of the parties set forth in this Agreement shall survive termination of this Agreement.
7. NO WARRANTY AND DISCLAIMER OF LIABILITY
7.1THE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS, AND YOUR USE OF THE SOFTWARE IS AT YOUR OWN RISK. WE PROVIDE NO WARRANTIES WHATSOEVER AND WE DO NOT MAKE,AND HEREBY TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW DISCLAIM, ANY AND ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. .
7.2 IN NO EVENT SHALL WE BE LIABLE FOR SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR ANY OTHER CLAIM UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR OTHER MONETARY LOSS, BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION, OR ANY CLAIM BY LICENSEE OR ANY OTHER THIRD PARTY BASED ON A THIRD PARTY CLAIM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.3 THE SOLE AND MAXIMUM LIABILITY OF THE LICENSOR AND ITS AGENTS, EMPLOYEES, AFFILIATES, DIRECTORS, OFFICERS AND THIRD PARTY SERVICE PROVIDERS, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIMS WHATSOEVER, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY,TORT, INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT PAID WE RECEIVED FROM YOU FOR THIS LICENSE (INCLUDING NO AMOUNT, IF NO AMOUNT HAS BEEN PAID BY YOU). IN THE EVENT THIS LIMITATION OF DAMAGES IS HELD UNENFORCEABLE, THEN THE PARTIES AGREE THAT BY REASON OF THE DIFFICULTY IN FORESEEING ALL POSSIBLE DAMAGES WHICH YOU MAY INCUR, THE LICENSOR'S (AND ITS AGENTS, EMPLOYEES, AFFILIATES, DIRECTORS,OFFICERS AND THIRD PARTY SERVICE PROVIDER'S) LIABILITY TO YOU SHALL BE LIMITED TO THE SUM OF US $5.00 AS LIQUIDATED DAMAGES AND NOT AS A PENALTY OR THE COST OF REMEDYING THE DAMAGE, WHICHEVER IS LESS. YOU ACKNOWLEDGE THAT THE LICENSOR ENTERED INTO THIS AGREEMENT IN RELIANCE UPON SUCH LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH IN THIS AGREEMENT AND THAT THESE PROVISIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF PORTIONS OF THIS AGREEMENT ARE FOUND TO HAVE FAILED IN THEIR ESSENTIAL PURPOSE.
8. EXPORT RESTRICTIONS
This Agreement is expressly made subject to any laws, regulations, orders, or other restrictions on the export from the United States of America of computer software or information relating to such software and you agree to abide by all such limitations. Without limiting the foregoing, you agree to adhere to all applicable Export Laws and Regulations of the United States and that, absent any required prior authorization from the Office of Export Licensing, U.S. Department of Commerce, Bureau of Industry and Security or the U.S. Department of State, Directorate of Defense Trade Controls, you will not knowingly export or re-export (as defined in Part 772 of the Export Administration Regulations (15 C.F.R. Parts 730-774) and Part 120 of the International Traffic in Arms Regulations (22 C.F.R. Parts 120-130))directly or indirectly, through their affiliates, licensees, or subsidiaries,any of the Software to any country named in Country Groups D1, E1, or E2 in Supp.1 to Part 740 of the EAR or any other country hereafter restricted by the U.S. Law or governmental order, including destinations subject to sanctions administered by the U.S. Department of the Treasury, Office of Foreign Assets Control.
9. DISPUTE RESOLUTION.
You agree that any civil action thereby commenced by you shall be brought in a state or federal court of competent jurisdiction in Salt Lake County in the State of Utah, USA and that the decision of such court(s)shall be final. You hereby submit to the jurisdiction of such court(s)and waive any objection that they may now or hereafter have to the venue of any such action or proceeding in any such court(s) or that such action or proceeding was brought in an inconvenient forum and agree not to plead or claim the same.
10.COMPLETE CONTRACT.
This Agreement constitutes the entire agreement between the parties with regard to the subject matter hereof, and integrates all prior understandings and agreements between the parties with respect thereto, whether oral or written. You agree to accept the terms and conditions set forth in this Agreement to the exclusion of any standard terms you may customarily have for the purchase of software. No other agreement, representations, warranties or other matters, oral or written, purportedly agreed to or represented by or on behalf of the Licensor or any of its agents, employees and affiliates, or contained in any sales materials or brochures, shall be deemed to bind the parties hereto with respect to the subject matter of this Agreement. You acknowledge that you are entering into this Agreement based solely on the basis of the representations contained herein. Further, should any provisions of this Agreement be held void,voidable, or unenforceable for any reason, all remaining provisions of this Agreement shall remain in full force and effect. To the extent the scope of any provision is too broad in any respect to permit enforcement, you agree that such scope may be judicially modified accordingly.
11.APPLICABLE LAW AND TAXES.
This Agreement shall be governed by and construed in accordance with the laws of the State of Utah, USA disregarding any rules relating to the choice or conflict of laws. Any and all duties and taxes, except income taxes, imposed or assessed by reason of this Agreement or its performance, including but not limited to sales or use taxes, shall be paid by you.
12. ASSIGNMENT.
You may not assign your rights or obligations under this Agreement without the prior consent we give in writing. Subject to this limitation, this Agreement shall be binding upon and inure to the benefit of the heirs, successors, and assigns of the parties hereto.
13. WAIVER.
If we waive any breach or a default by you, such waiver shall not be construed as a waiver of any succeeding breach, nor shall any delay or omission on the part of Licensor to exercise or avail itself of any right, power or privilege operate as a waiver of any right, power or privilege by Licensor. No waiver, consent, modification, alteration, addition, or change of terms of this Agreement shall bind Licensor unless in writing and signed by an authorized signatory of Licensor, and then such waiver, consent,modification or change shall be effective only in the specific.