Licence Agreement General Terms

This Agreement is formed between Blue Flag Pty Ltd (ACN 128 781 395) of 1/254 Dorcas Street, South Melbourne, Victoria, Australia 3205 (Us, Our, We, Supplier) and the customer as set out in the Order Form (You, Your).

THE PARTIES AGREE THAT:

1 Definitions and interpretation

1.1 Definitions

In this Agreement:

Agreement means this agreement and includes these Licence Agreement General Terms, the Order Form, the User Terms of Use and the Privacy Policy;

Applications means the applications made available to You through the Platform, asset out in the Order Form, which may be varied between the Parties in writing from time to time;

Business Day means any day that is not a weekend or public holiday in the State of Victoria, Australia;

Change of Control in relation to:

(a) a body corporate (including a body corporate acting in the capacity as trustee of a trust) means the occurrence of an event or circumstance where a person who is not presently able to do any of the following things becomes able to do one of the following things (whether directly or indirectly or through one or more intervening persons, companies or trusts):
(i) control the composition of more than one half of the body's board of directors;
(ii) be in a position to cast, or control the casting of, more than one half of the maximum number of votes that might be cast at a general meeting of the members of the body; or
(iii) hold or have a beneficial interest in more than one half of the issued share capital of the body;

(b) a trust means the occurrence of an event or circumstance where a person who is not presently the Controlling Person of that trust becomes the Controlling Person of that trust;

Commencement Date means the date upon which You execute the Order Form;

Confidential information means the confidential information of a Party which relates to the subject matter of this Agreement and includes all information:

(a) relating to trade secrets, know-how, financial information and other commercially valuable information of whatever description and in whatever form (whether written or oral) which may be disclosed by one Party to the other in connection with this Agreement or otherwise concerning the Platform, any technology, marketing strategies and business of the disclosing Party, the terms of this Agreement and any information which is by its nature confidential;

(b) that is designated by the disclosing Party to be confidential;

(c) which is by its nature confidential; or

(d) which the receiving Party ought reasonably to know is confidential, but does not include:

(e) information already known to the receiving Party at the time of disclosure by the other Party or information in the public domain other than as a result of disclosure by a Party in breach of its obligations of confidentiality under this Agreement;

Controlling Person means, in relation to a trust, the person in whom is vested the ability to appoint a new or additional trustee of that trust or remove the trustee of that trust or with whose instructions such trustees are accustomed to act or any other power which in all relevant circumstances would cause a reasonable person to believe that that person controlled the trust;

Default Interest means interest payable at the rate of 12 per cent per annum calculated on a daily basis;

Dispute means a dispute, difference or question relating to this Agreement including any dispute, difference or question regarding the breach, termination, validity or subject matter of this Agreement, or dispute as to the circumstances leading to the entry by the Parties into this Agreement or any claim whether in tort, negligence, equity, under statute or otherwise;

Fixed Percentage Increase means 4%;

Initial Term means the initial term of this Agreement as set out in the Order Form;

Intellectual Property Rights means all present and future intellectual and industrial property rights throughout the world, including all rights, whether conferred by statute, common law, equity or otherwise, in or in relation to:

(a) inventions, discoveries and novel designs (whether or not registered or registrable as patents or designs) including developments or improvements of equipment, products, technology, processes, methods or techniques;

(b) copyright (including future copyright) throughout the world in all literary works, artistic works, computer software and any other works or subject matter in which copyright subsists and may in the future subsist, and includes moral rights;

(c) obligations to have confidential information and trade secrets kept confidential and secret;

(d) trade and service marks (whether registered or unregistered), business names, trade names, domain names, logos and get-up; and

(e) circuit layouts;

Laws means all statutes, regulations, standards, by-laws, ordinances, subordinate legislation, industry codes of conduct and any government order, decree or other instrument;

Licence means the licence to use the Platform granted by Us to You on the terms of this Agreement;

Licence Agreement General Terms means the general terms set out in this document, which forms part of the Agreement;

Licence Fees means the fees set out in the Order Form, excluding GST unless otherwise provided for in the Order Form;

Notifiable Data Breach means an 'eligible data breach', as that term is defined by the Privacy Act, and any other suspected or actual circumstance that a party is required to notify to a third party under a Privacy Law;

Order Form means the order form which We supply to You containing commercial terms forming part of this Agreement;

Parties means the parties to this Agreement;

Personal Information has the same meaning as in the Privacy Act (or where context requires, has the meaning given to the corresponding terminology under another relevant Privacy Law);

Platform means the platform made available to You by Us via the login function at [your subdomain].ontrak.app and includes any Applications made available to You through it;

Privacy Act means the Privacy Act 1988 (Cth), including the Australian Privacy Principles;

Privacy Laws means, in relation to a party:

a) the Privacy Act including the Australian Privacy Principles, irrespective of whether the party would otherwise be bound to comply at Law;

b) all other Laws applicable to that party and which are relevant to the Processing of Personal Information by that Party; and

c) all other Laws applicable to the other party and which are relevant to the Processing of Personal information by that other Party and which the other party has notified in writing to the first mentioned party;

Privacy Policy means the privacy policy which appears on the Website, as amended from time to time;

Processing (or Process) means collection, use, adaption, alteration, storage, transfer, disclosure or any other handling of Personal Information;

Related Bodies Corporate has the meaning given to that term in the Corporations Act 2001 (Cth);

Renewal Term has the meaning it is given by clause 2(a)(ii) of these Licence Agreement General Terms;

Special Terms means the special terms, if any, set out in the Order Form which form part of this Agreement;

Term means the Initial Term and each of the Renewal Terms (if any);

User Terms of Use means the terms of use which Users must agree to for the purpose of using the Platform; and

Users means the users of the Platform under Your Licence.

1.2 Interpretation

In this Agreement, unless the context otherwise requires:

(a) headings and notes in square brackets are for convenience only and do not affect the interpretation of this Agreement, except for the purpose of rectifying any erroneous cross-reference;

(b) words importing the singular include the plural and vice versa;

(c) words importing a gender include all genders;

(d) a reference to a paragraph, clause, or schedule is a reference to a paragraph, clause, or schedule to this Agreement;

(e) references to any document or agreement include references to such document or agreement as amended, novated, supplemented, varied or replaced from time to time;

(f) all monetary amounts referred to in this Agreement are in AUD or Australian currency unless expressly stated otherwise;

(g) a reference to a party to this Agreement includes that party’s legal successors (including executors and administrators) and permitted assigns; and

(h) the words ‘including’, ‘includes’ or ‘for example’ or similar expressions are not words of limitation.

2 Agreement and grant of Licence

(a) This Agreement commences on the Commencement Date and, subject to its earlier termination or expiration under the terms of this Agreement, shall continue for the Initial Term.

(b) At the end of the Initial Term, the Agreement shall cease unless the Parties agree to extend it for a further period of time (a Renewal Term) or continue hold over the Agreement in the manner contemplated in clause 2(c) below.

(c) If after the end of this Agreement:

(i) the Parties continue to provide the License for the License Fees without objection and without specifically agreeing to a Renewal Term or executing a new agreement; or

(ii) the Parties have business dealings in connection with the provision of licenses for fees

then:

(iii) those circumstances or dealings will not constitute either a renewal of this Agreement or a waiver of the ability to terminate this Agreement (as applicable);

(iv)the provisions of this Agreement will apply to the Parties until a new agreement is executed in respect of the License; and

either Party may terminate the period of holding over at any time by giving the other Party 90 days' notice in writing.

(d) During the Term, We grant the Licence to You and You accept the Licence on the terms of this Agreement.

(e) From the Commencement Date, You are responsible and liable for all Users' use of the Platform. Users may only use the Platform in accordance with User Terms of Use as notified by Us from time to time.

(f) The Order Form and these Licence Agreement General Terms may only be varied by agreement between the Parties in writing.

(g) If there is any inconsistency between any of the terms of this Agreement, then, to the extent of the inconsistency, the order of precedence will be as follows:

(i) the Order Form;

(ii) these Licence Agreement General Terms;

(iii) the User Terms of Use; and

(iv) the Acceptable Use Policy.

3 Payment of Licence Fees

(a) In consideration of Us granting the Licence to You, You must pay the Licence Fees to Us in accordance with each valid tax invoice We render to You in accordance with the Order Form and this Agreement (Invoice).

(b) Subject to clause 3(c), if You do not pay any of the Licence Fees to Us on or by the due date on the Invoice (Due Date), Default Interest will be payable on the overdue amount and, if any payment of Licence Fees and interest is owing to Us after 30 days from the Due Date, We may do any or all of the following:

(i) suspend Your Licence;

(ii) terminate this Agreement;

(iii) notwithstanding any other term of this Agreement, initiate proceedings to recover the Licence Fees and Default Interest then outstanding as a liquidated debt from You.

(c) If You dispute the whole or any part of the amount claimed in an Invoice rendered by Us to You in connection with this Agreement, You must pay any undisputed portion on or by the Due Date. Either You or We can refer the dispute regarding the disputed amount to the dispute resolution procedure prescribed by clause 9 of this Agreement. If it is determined by that process that a further amount is payable in addition to the disputed amount, You must pay that amount to Us together with Default Interest on the outstanding amount since the Due Date.

4 Licence conditions

(a) We warrant that We have the authority to grant the Licence to You.

(b) The Licence We grant to You is a limited, revocable, non-transferable, non-assignable, non-exclusive licence for the Users to access and use the Platform in accordance with this Agreement.

(c) You warrant that:

(i) You have obtained all the necessary authorisations and consents for You to validly enter into, and perform all of Your obligations arising under, this Agreement; and

(ii) You will only allow persons who have been provided with a username and password by Us to use the Platform.

(d) We will provide Your appropriate representative with a reasonable amount of training to enable you to use the Platform. We will also provide technical support to the Platform for both maintenance and updates on an ongoing basis including new features, improvements and enhancements.

(e) We agree to provide support during the Term by way of a support ticketing system which enables Users to report technical issues or perceived data inaccuracies within the Platform. In the event that We receive notice of a technical issue or perceived data inaccuracy within the Platform through the support ticketing system, We will use reasonable endeavours to investigate the issue, and attempt to resolve the issue within a reasonable period of time as set out in the TRAK LMS Service Levels which have been provided to you.

(f) You are responsible for ensuring that there is no unauthorised use of the Platform by Users or any other persons under your Licence. You acknowledge that any unauthorised use of the Licence and the Platform would cause significant harm to Our business which could not be calculated by damages alone, and that the award of other legal and equitable remedies such as specific performance would be required in addition to monetary damages to adequately compensate Us for any such unauthorised use.

(g) Before the Commencement Date, You must supply Us with a list of the persons You wish to appoint as Users of the Platform under this Licence, and obtain Our consent to the appointment of those Users (which consent will not be unreasonably withheld or delayed). Should the Users You wish to appoint under this Licence change during the Term, You must obtain Our written consent to any such change.

5 Ownership and Intellectual Property Rights

(a) Notwithstanding anything written elsewhere in this Agreement or in any other document, You acknowledge that We are the sole owner of the Platform, including any copies, modifications, updates or new releases whether modified by Us, You (or by Your officers, employees, contractors, associates, affiliates or agents) or any third party.

(b) To the extent permitted by law, all Intellectual Property Rights in the Platform, including any copies, modifications, updates or new releases of the Platform, are vested in and retained by Us. For the avoidance of doubt, nothing in this Agreement gives rise to any assignment, acquisition, transfer or conveyance of any kind whatsoever of any Intellectual Property Rights.

(c) Neither You, nor Your Users, officers, employees, contractors, associates, affiliates or agents may publish, make publically available, electronically transmit or otherwise share with any third party any of the data or content accessed or receive through the Platform unless, and only to the extent that, You have been expressly authorised to do so by Us.

(d) You indemnify Us against any loss or damage suffered or incurred by Us as a result of Your infringement (or the infringement by Your officers, employees, contractors, associates, affiliates or agents) of the Intellectual Property Rights attaching to the Platform.

(e) You grant to Us an irrevocable, perpetual, non-exclusive, fully paid-up, royalty-free, world-wide licence to use Your logo, trademark or corporate name for the purposes of promoting Your association with the Platform.

6 Indemnity and Liability

(a) You indemnify Us and Our Related Bodies Corporate and their respective officers and employees and contractors (for whom We enter into this Agreement as trustee) in respect of all direct damages, costs, losses or other liability incurred by any of the Indemnified or awarded (or agreed to be paid by settlement or compromise) as a result of any claim, allegation, action or proceeding made or brought against any of the Indemnified arising out of or in connection with:

(i) any negligent, unlawful or wilfully wrong act or omission by You or the Users;

(ii) any breach of this Agreement by You or the Users;

(iii) any unauthorised use of the Platform, by a User, or one of Your employees or contractors or otherwise, in connection with Your Licence.

(b) To the extent permitted by law, We exclude all liability to You or anyone else for indirect or consequential loss or damage of any kind (however caused) arising or related to this Agreement, including liability for loss of revenue, loss of profits, loss of opportunity, or any other form of consequential, special, indirect, punitive or exemplary loss or damage.

(c) Where We are not entitled to exclude Our liability under this Agreement, Our total cumulative liability under this Agreement, whether in contract, tort (including negligence) under statute, strict liability or otherwise shall not exceed an amount equal to the total Licence Fees paid or payable by You over the immediately preceding 6 month period of the Term.

(d) We will provide the Platform to You under this Agreement with due care and skill and in accordance with any non-excludable guarantees which apply to the service under this Agreement. We do not guarantee that the service We provide or the content accessed through the Platform will be continuously available or free from errors, nor do We warrant, endorse, guarantee or assume responsibility for any products or services (or claims or statements about those products or services) that You may view in connection with the Platform that are supplied by third parties. Where We are not permitted to exclude Our liability for any loss or damage in connection with Our breach of any non-excludable guarantee, Our liability for any such breach will be limited, at Our option, to re-supplying the Licence or re-payment of the cost of having the Licence supplied again.

(e) We indemnify You and Your Related Bodies Corporate and their respective officers and employees and contractors (for whom You enter into this Agreement as trustee) in respect of all direct damages, costs, losses or other liability incurred by any of the Indemnified or awarded (or agreed to be paid by settlement or compromise) as a result of any claim, allegation, action or proceeding made or brought against any of the Indemnified arising out of or in connection with:

(i) any negligent, unlawful or wilfully wrong act or omission by Us or our employees;

(ii) any breach of this Agreement by Us or our employees;

(iii) any unauthorised use of the Platform, by a User, or one of our employees or contractors or otherwise, in connection with Your Licence.

7 Termination

(a) Either Party may terminate this Agreement (and the Licence We grant to You under it) immediately by written notice if any of the following events occur:

(i) the other Party breaches a material obligation under this Agreement and fails to rectify that breach within thirty (30) days after receiving written notice from the non-breaching Party requiring the breach to be rectified;

(ii) any type of administrator, receiver or liquidator is appointed in respect of the other Party’s business, property or affairs; or

(iii) the other Party enters into any scheme, composition or arrangement of any kind with any of its creditor.

(b) If this Agreement is terminated in accordance with clause 3 or this clause 7, You must ensure that the Users immediately cease using the Platform and erase and destroy (as appropriate) software or any materials or documentation related to the Platform from Your Users' operating systems and hardware and certify in writing to Us that they have been erased or destroyed (as the case may be).

(c) Termination of this Agreement (and the Licence We grant to You under it) does not affect any of Our accrued rights or liabilities, nor shall it affect any provision of this Agreement which are expressly or by implication intended to continue in force after such termination.

8 Confidentiality and Data Breach

(a) A Party will not, without the prior written approval of the other Party, disclose the other Party’s Confidential Information.

(b) Notwithstanding this clause 8, a Party will not be in breach of this Agreement in circumstances where it is legally compelled to disclose the other Party’s Confidential Information.

(c) Each Party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this Agreement, do not make public or disclose the other Party’s Confidential Information.

(d) Each Party must immediately inform the other Party upon becoming aware of any breach of this clause 8 or of any unauthorised, unintended or undesirable disclosure of the Confidential Information, and must provide the other Party with all reasonable assistance in remedying any such breach or disclosure.

(e) During the Term and for two (2) years after termination of this Agreement, the Parties must not disclose the amount or details of any Licence Fees paid under this Agreement, or any other term of this Agreement, to any third party without each other’s prior written consent.

(f) Notwithstanding anything written elsewhere in this Agreement, a Party may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its solicitors, auditors, insurers and accountants.

(g) Handling of personal information

In Processing any Personal Information in connection with this Agreement, Supplier must:

(i) use the Personal Information only for the purpose of performing its obligations under this Agreement;

(ii)comply with all Privacy Laws (irrespective of whether it would be required to comply at Law);

(iii)not do or omit to do anything that causes You to comply with its obligations under the Privacy Laws;

(iv)comply with all of Your privacy, data protection and data security policies and procedures that you notify to Supplier from time to time;

(v) promptly comply with all of your reasonable directions relating to the Processing of Personal Information under this Agreement (including any such direction to cease Processing or to destroy or de-identify certain Personal Information, or to do anything reasonably required by you to assist with complying with its obligations under the Privacy Law and its other contractual arrangements);

(vi) store Personal Information only in Australia;

(vii) not transfer or disclose any Personal Information outside of Australia except with your prior written approval (which approval may be withheld or subject to conditions at your discretion);

(viii) not do or omit to do anything that causes a Notifiable Data Breach involving such Personal Information;

(ix) notify you immediately if there is any suspected or known security incident involving the Personal Information, including any unauthorised access, modification or disclosure or misuse, interference or loss of Personal Information (irrespective of whether the incident is a Notifiable Data Breach) and do all things necessary to address, or deal with, that incident as and when required by you; and

(x)notify you immediately if it receives a privacy related complaint or enquiry, or is subject to any assessment, investigation or other action involving any Personal Information, and to the extent permitted by Law not respond to any such complaint, enquiry, assessment, investigation or other action except in a manner prior approved by you.

(h) Notifiable data breach

In the event that you have reasonable grounds to suspect or believe that an incident is a Notifiable Data Breach for both parties, then, to the extent permitted by Law, you may by written notice to Supplier:

assume control of any assessment, remedial action, preparation of a statement and/or notification processes required under the applicable Privacy Law in respect of that Notifiable Data Breach; and

require Supplier not to undertake such assessment, remedial action, preparation of a statement and/or notification and to instead rely on the steps taken by you in connection with those actions in accordance with the relevant provisions in the applicable Privacy Law.

9 Dispute Resolution

(a) In the event of a Dispute, the Parties must comply with this clause 9 before starting any arbitration or court proceedings (except proceedings for urgent injunctive relief).

(b) A Party claiming that a Dispute has arisen must give the other Party notice setting out details of the Dispute.

(c) During the fourteen (14) days after a notice is given under clause 9(b) (or longer period if the Parties to the Dispute agree in writing), each Party to the Dispute must use reasonable efforts to resolve the Dispute. If the Parties cannot resolve the Dispute within that period, a Party may refer the Dispute to a binding arbitration to be conducted in Victoria through the Law Institute of Victoria and will be conducted by one or more arbitrators accredited by the Law Institute of Victoria.

(d) A Party must not start court proceedings in relation to a Dispute until it has exhausted the mandatory procedures of this clause 9.

10 Notices

(a) A notice, consent or other communication under this Agreement is only effective if it is:

(i) in writing, signed by or on behalf of the person giving it;

(ii) addressed to the person to whom it is to be given; and

(iii) either:

(A) delivered or sent by pre-paid mail (by airmail, if the addressee is overseas) to that person’s address; or

(B) sent by email to that person’s email and the machine from which it is sent produces a delivery log which signifies that the email was sent and relayed to its intended recipient successfully.

(b) A Party’s mail address and email address are as set out in the Order Form or as that Party notifies the other Party in writing from time to time.

(c) If any notice, consent, information, application or request is delivered, or read report in relation to it is received, on a day that is not a Business Day, or if on a Business Day, after 5pm on that day, it is to be treated as having been given or made at the beginning of the next Business Day.

11 General

(a) This Agreement is not to be interpreted against the interests of a Party merely because that Party proposed this Agreement or some provision of it or because that Party relies on a provision of this Agreement to protect itself.

(b) Neither Party may assign, whether in whole or part, the benefit or any rights or obligations under this Agreement to any third party without the other Party’s prior written consent.

(d) This Agreement will be governed by and interpreted in accordance with the laws of Victoria, Australia. You irrevocably submit to the non-exclusive jurisdiction of the courts of the State of Victoria, Australia.

(e) If a Party does not exercise or enforce any right or provision under this Agreement, it will not constitute a waiver of such right or provision. Any waiver of any provision under this Agreement will only be effective if it is in writing and signed by the Parties.

(f) If any part of this Agreement is found to be void, unlawful or unenforceable, it will be deemed to be severed from this Agreement to the extent of its invalidity, illegality and/or unenforceability only and the remainder of this Agreement will remain in full force and effect.