Software License Agreement

CATAPULT VISION

This Software License (“Agreement”) is entered into as of the date you execute the quotation that was sent to you by Catapult (“Quotation”, and constituting an “Order Schedule”) between the Catapult entity named in the Quotation (“Catapult”), and the Company named in the Quotation (“Company”, “you”, “your”). This Agreement sets forth the terms and conditions that apply to the software licenses and services you receive from Catapult and its affiliates.

1. Orders

Your initial order for the Software licenses (and other goods and services) is set forth in the Quotation. Additional orders may be made by separate signed written agreement in a form agreed by the parties (such agreement constituting an “Order Schedule”). You may not use the Software licenses for any illegal or unauthorised purpose nor may you, violate any laws in your jurisdiction (including but not limited to copyright laws).

2. Licenses and Services

2.1 Subject to the Company complying with its obligations under this Agreement, Catapult:

2.1.1 Will provide the Company with the Services for the Term; and

2.1.2 grants the Company a non-exclusive, non-transferable license for the Term to use the Local Software, and access and use the features and functions of the Software Services, solely for the Purpose and subject to the following restrictions:

2.1.2.1 the Company may only install the Local Software on the number and type of computers specified in the quotation.

2.2 The Company acknowledges and agrees that:

2.2.1 it is responsible for providing the computer, hardware, software, Internet access and all equipment necessary to access and use and receive the benefit of the Local Software and the Services;

2.2.2 after the Term Catapult is under no obligation to maintain a copy of any Data that was uploaded to the Software Services and such Data may be deleted by Catapult at its discretion;

2.2.3before a User may access and use the Software Services and the Local Software, that User must accept the applicable EULA; and

2.2.4 the Company is liable for any breach of a EULA by any User that has accepted (or purported to accept) a EULA on behalf of the Company (including any User that has used a Company issued email address when registering for the Software Services or Local Software or accepting a EULA).

2.3 The Company must procure that each User keeps his or her individual license key details for the Local Software and login details for the Software Services secure and confidential and does not permit any other person to use these details.

3. Term and Termination

3.1 This Agreement commences on the Commencement Date and continues for the period specified in item 3 of the Schedule (Initial Term). On the last day of the Initial Term and each anniversary of this day (each an Expiry Date), this Agreement will automatically renew for the period specified in item 4 of the Schedule (Further Term) unless one party has notified the other party in writing at least 90 days prior to the relevant Expiry Date that this Agreement will end on that Expiry Date.

3.2 A party (First Party) may terminate this Agreement with immediate effect by giving written notice to the other party where:

3.2.1 the other party commits a breach of a material provision of this Agreement and that breach is either incapable of remedy, or if capable of remedy is not remedied within 21 days of the other party receiving written notice from the First Party requiring the breach to be remedied;

3.2.2 the other party ceases to carry on business, is subject to any form of insolvency administration, or ceases to be able to pay its debts as they become due; or

3.2.3 any step is taken: (a) by a mortgagee to take possession or dispose of the whole or part of the other party’s assets, operations or business; (b) to enter into any arrangement between the other party and its creditors; or (c) to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a provisional liquidator, a liquidator, a controller, an administrator or other like person of the whole or part of the other party’s assets, operations or business.

3.3 If this Agreement expires or is terminated for any reason, the Company must immediately pay Catapult all Fees owing, and the accrued rights and remedies of each party remain unaffected.

3.4 Data

3.4.1 The Company represents and warrants to Catapult that it has the right to deal with (including upload or transmit to the Software Services) all Data, and that all Data:

3.4.1.1. is true, current and correct;

3.4.1.2 does not infringe any patent, trade mark, trade secret, copyright or other intellectual or proprietary right of any party;

3.4.1.3 is not misleading or deceptive, unlawful, libellous, defamatory, obscene, pornographic, indecent, lewd, harassing, threatening, abusive, inflammatory or otherwise objectionable;

3.4.1.4 does not contain any viruses, time bombs, cancelbots, Trojan horses, worms or other computer programming routines or engines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information;

3.4.1.5 was not obtained by way of an invasion of privacy or publicity rights, and all people depicted within the Data have consented to their depiction within the Data, including providing all consents required by the Privacy Act 1988 (Cth) and any other privacy law that applies to the Company or an individual the subject of the Data;

3.4.1.6 does not contain images or footage of minors; and

3.4.1.7 if uploaded to the Software Services, can be lawfully used, hosted, published and transmitted by Catapult to provide the Software Services to the Company.

4. Fees

4.1 The Company must pay Catapult the Fees (and all Taxes) in accordance with the payment terms set out in the Quotation. To the maximum extent permitted by law, the Fees are not refundable.

4.2 If any payment owing to Catapult is not made within 14 days of the due date, Catapult may, without prejudice to any of its rights:

4.3 charge the Company interest at a rate of 10% per annum calculated on a daily basis from the due date; and/or

4.3.1 without notice, restrict the Company’s ability to access or use the Local Software, Software Services and/or suspend provision of any other Services, up until (and including) the date payment is made in full.

4.3.2 All payments the Company is required to make under or in respect of this Agreement shall be made free and clear of and without deduction for any present or future deductions, withholdings or payments whatsoever imposed by any Government Agency in respect of that amount for or on account of any Tax, except to the extent that any withholding tax payable to any Government Agency is creditable to Catapult.

4.4 The Company must: (a) indemnify Catapult against any loss Catapult suffers or cost Catapult incurs because the Company does not make the deduction, withholding or payment; (b) promptly give Catapult a copy of any document relating to the amounts paid or payable in respect of the deduction, withholding or payment made by the Company; and (c) pay to the relevant Government Agency on time the full amount of the deduction, withholding or payment.

4.5 Currency: All amounts due under this Agreement are payable in the currency specified in the Order Schedule.

5. Liability

5.1 To the maximum extent permitted by law (and subject to clause 6.2):

5.1.1 the Local Software and Services are provided to the Company “as is”, and Catapult does not provide any warranties or make any representations in respect of the Local Software or Services (including that the Local Software or any Service will be uninterrupted or error free or fit for any purpose) beyond those expressly stated in this Agreement or otherwise agreed to in writing by Catapult;

5.1.2 Catapult and its affiliates will not be liable to the Company or to any other person for any indirect, incidental, special or consequential loss or damage, loss of profits (or anticipated profits) or business or business opportunity, loss of data, or damage to goodwill or reputation, irrespective of whether the loss or damage is caused by or relates to breach of contract or tort (including negligence) or otherwise, or a party or any other person was previously notified of the possibility of the loss or damage; and

5.1.3 the maximum aggregate liability of Catapult and its affiliates for all claims made by the Company in connection with this Agreement for losses, damages or costs, regardless of how they arise (including liability for breach of contract or negligence), is limited to the amount of Fees actually paid by the Company to Catapult under this Agreement in the 12 month period immediately prior to the event giving rise to the Company’s first claim.

5.2 Nothing in this Agreement unlawfully modifies or excludes (or purports to unlawfully modify or exclude) the representations, guarantees and warranties and other legal rights provided to the Company under any consumer protection law (including the Competition and Consumer Act 2010 (Cth) (ACL)) or other laws of any jurisdiction.

5.3 Catapult’s liability for its failure to comply with a consumer guarantee under the ACL (other than a guarantee under section 51, 52 or 53 of the ACL) is limited, at Catapult’s option, to one or more of the following: (a) when the breach relates to 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, and/or the payment of the cost of having the goods repaired; and (b) when the breach relates to services, the supplying of the services again, and/or the payment of the cost of having the services supplied again.

5.4 The Company indemnifies, releases and holds harmless Catapult, its affiliates and each of their directors, officers, employees, agents, and contractors (Indemnified Parties) from and against any and all losses, damages, liabilities, obligations, harm, charges, costs and expenses (including all legal fees) incurred by an Indemnified Party in connection with any breach by the Company of any of its obligations or warranties under this Agreement.

5.4.1 Software Services and/or suspend provision of any other Services, up until (and including) the date payment is made in full.

5.5 All payments the Company is required to make under or in respect of this Agreement shall be made free and clear of and without deduction for any present or future deductions, withholdings or payments whatsoever imposed by any Government Agency in respect of that amount for or on account of any Tax, except to the extent that any withholding tax payable to any Government Agency is creditable to Catapult.

5.6 The Company must: (a) indemnify Catapult against any loss Catapult suffers or cost Catapult incurs because the Company does not make the deduction, withholding or payment; (b) promptly give Catapult a copy of any document relating to the amounts paid or payable in respect of the deduction, withholding or payment made by the Company; and (c) pay to the relevant Government Agency on time the full amount of the deduction, withholding or payment..

6. Intellectual Property Rights

6.1 The Company acknowledges that all of the trade marks, trade names, copyright, designs, patents and other intellectual property and proprietary rights, whether registered or unregistered, (collectively, IP) relating in any way to the Local Software, any of the Services, and any goods, software, other applications, or documentation or materials provided to the Company or any User in connection with or as part of the Services or for use in conjunction with any Local Software or Services (or that the Company or any User is able to access due to the provision to it of any Services), (collectively, Catapult Property) are and shall remain the sole property of Catapult or its licensor. The Catapult Property, as well as all business and pricing information of Catapult and its affiliates (Confidential Information) constitutes confidential information of Catapult (or its affiliates) and the Company must keep (and procure that its officers, employees, agents, contractors and Users keep) such Confidential Information confidential, and not disclose any Confidential Information to any person unless otherwise authorised in writing by Catapult.

6.2 The Company must not (and it must ensure that the Users do not) access any source code of, or copy, reverse engineer, adapt, decompile, vary or modify, any Catapult Property or any component of it, or attempt to do so, or directly or indirectly assist or permit anyone else to do so.

6.3 The Company hereby assigns to Catapult all of the IP in any improvements, developments or modifications made by it (or any of its officers, employees, agents, contractors or Users) to any Catapult Property (Improvements), such assignment to be effective immediately upon the creation of the Improvements, and the Company warrants to Catapult that it has all rights necessary to make such an assignment.

6.4 The Company will indemnify and keep indemnified Catapult and its affiliates from and against any and all losses, damages, liabilities, obligations, harm, charges, costs and expenses (including all reasonable legal fees) incurred by Catapult or its affiliates by reason of the Company (or any officer, employee, agent, contractor or User) doing, permitting or otherwise authorising anything, or omitting to do, permit or authorise anything (including anything in breach of this Agreement) that results in an infringement of any of the Catapult Property (except to the extent that such acts or omissions were done with the prior written consent of Catapult, or were otherwise expressly permitted by this Agreement).

7. General Terms

7.1 This Agreement constitutes the entire agreement between the parties in relation to its subject matter. All prior discussions, undertakings, agreements, representations, warranties and indemnities in relation to that subject matter are replaced by this Agreement and have no further effect.

7.2 This Agreement may not be amended or varied except in writing signed by all parties, provided that Catapult reserves the right to unilaterally correct any error or omissions of any kind in any Additional Equipment Order and the correction will be binding on the Company and Catapult.

7.3 The Company may not assign this Agreement without the prior written consent of Catapult. Catapult may assign this Agreement in whole, or in part, or appoint any person to perform any, or all, of its obligations under this Agreement.

7.4 If any provision of this Agreement is found to be invalid or unenforceable, this provision will be severed from this Agreement and this will not affect the validity or enforceability of the other provisions of this Agreement, which will remain in full force and effect.

7.5 Each party must do or cause to be done all things necessary or reasonably desirable to give full effect to this Agreement and the transactions contemplated by it (including, but not limited to, the execution of documents).

7.6 Clauses 2.2, 4, 5, 6, and 7 survive expiry or termination of this Agreement.

7.7 The laws of Victoria, Australia govern this Agreement and the parties agree to submit to the non-exclusive jurisdiction of courts of this State.

7.8 If there is a dispute between the parties, the parties agree to use their best endeavours to resolve the dispute promptly and in good faith.If the parties are unable to resolve the dispute, then the parties agree to submit the dispute for mediation before a mutually agreeable mediator located in Melbourne, Australia (with the costs of the mediator to be shared by the parties).  If the dispute is not resolved by mediation, either party may pursue any remedy available to it under the laws of Victoria, Australia.

7.9 No party is liable for any failure to perform or delay in performing its obligations under this Agreement (other than an obligation to pay money) if that failure is due to anything beyond that party’s reasonable control.