End User License Agreement

1. Definitions
“Activeport” means the group of companies controlled by Activeport Group Ltd irrespective of whether the control is direct or indirect (including through subsidiaries of Activeport Pty Ltd) and whether it is because of control of shares, votes at general meetings of shareholders, votes at meetings of directors or the or removal of directors or otherwise.
“Designated System” means the server, operating system and database the Software is licensed to be on as identified in the relevant Order.
“Intellectual Property Rights” means all trademarks, service marks, trade secrets, patents, patent applications, moral rights, and any other proprietary rights.
“Property” is defined in clause 11.1.
“SaaS” refers to the ‘software as a service’ model of providing access to the Software via a remote hosted server, accessible via the internet or other network.
“Services” means Software subscription, maintenance services, support services, implementation services, Network Services and any other quoted product or service provided to a customer.
“Site” or “PoP” means the location as identified in the relevant Customer Contract where Customer is authorised to use the Software.
“Software” means the Software program(s) identified in a Customer Contract (including all modules and features of the Software program(s) and any modified, updated, or enhanced versions of such program(s) that Activeport may provide to Customer pursuant to a Customer Contract executed by the parties.
“Source Code” means the human-readable version of a Software program that can compiled into executable code excluding the source code for any Software (or portion of the Software) not owned by Activeport.
“Software Subscription Services” means Activeport’s standard usage license and maintenance services for the Software (including the provision of Updates and Upgrades), as amended from time to time, that may be acquired by the Customer pursuant to a Customer Contract.
“Third Party Product” means a Software program owned by a third party other than Activeport (“Third Party Supplier”) and which is licensed by Activeport to the Customer in a Customer Contract.
“Usage Report” means a report of Customer’s usage of the Software, including details of the current license restriction (for example, the number of instances, locations, interfaces, or features), in a form to be agreed upon by the parties.

2. License Grant
If the parties have executed a Customer Contract for Software Subscription Services, Activeport grants to Customer a non- exclusive, non-transferable license to use the Software solely for Customer’s internal business purposes, during the Term, on the Designated System(s) at the Site or via SaaS, in accordance with the Documentation and the restrictions in the Customer Contract. Customer may make a reasonable number of copies of the Software solely for backup or archival purposes. This Software and all copies shall be subject to all the terms and conditions of the relevant Customer Contract. Nothing in this EULA or a Customer Contract shall be deemed to transfer title to or provide Customer with any rights in the Software or Documentation. The Licensee will not create or permit to exist a security interest over the Software or Documentation or in any modifications to, or enhancements, software updates or new releases of, the Software or Documentation. For the purposes of the foregoing, “security interest” means a security interest that is subject to the Personal Property Securities Act 2009 (Cth) or any other mortgage, pledge, lien, charge or other arrangement of any kind which in substance secures the payment of money or the performance of any obligation, or that gives a creditor priority over unsecured creditors.

3. Restrictions on Use
Customer agrees not to (a) modify, adapt, alter, translate, or create derivative works from the Software; (b) merge the Software with other Software; (c) sublicense, lease, rent, loan, or otherwise transfer (subject to clause 11.6) the Software to any third party, (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the Source Code for the Software; (e) otherwise use or copy the Software or the Source Code except as expressly allowed under clause 2. LICENSE GRANT; (f) publish the results of any benchmark tests run on the Software or any component of the Software; (h) use the Software to develop a product that is competitive with the Software; or (i) enable or use functionality in the Software that is not licensed to Customer under any Customer Contract.

4. Software Subscription Services
4.1 SaaS. Licensees who access the Software via SaaS will not, nor attempt to: (a) provide, publish, post or create a link to the remote hosted Software without Activeport’s express written permission; (b) transmit to or via the remote hosted Software any unlawful, threatening, libellous, defamatory, obscene, dangerous, inflammatory, pornographic or profane material, any material that could constitute or encourage conduct that will be considered a criminal offence, give rise to civil liability or would otherwise violate any laws, nor any materials, malware, spyware, computer viruses or other materials which may adversely affect the security or content of the remote hosted Software; (c) violate the security or any security measures of the remote hosted Software; (d) probe, scan or test the vulnerability of the remote hosted Software or any associated systems or networks; (e) interfere with the service to any other user of the remote hosted Software; nor (f) use any device, software or routine to interfere or attempt to interfere with the proper working of the remote hosted Software.

5. Software Support
Software Support means assistance provided to users of the Activeport technology, encompassing a wide range of services to troubleshoot and resolve technical issues related to the Activeport software. Customers can only book Activeport Support if they meet the below conditions: a) A Valid Software Support Agreement from Activeport, b) the support ticket has been raised in accordance with the Software Support Agreement and c) that the customer’s account isn’t in arrears.

Support does not apply to any unavailability or performance issues of an Activeport Product or Service: (a) that occur as a result of a planned maintenance event; (b) is caused by factors outside of ActivePort’s reasonable control, including any force majeure event; (c) that result from any actions or inactions of the end customer or any third party; or (d) that result from customer equipment, software or other technology that is the responsibility of the end customer or any third party.

5.1 Access. In order to enable Support Services to be provided as efficiently as possible, the Customer must ensure Activeport is provided with remote access to the Software and Designated System. Where remote access to the Software and Designated System is restricted by means of a secure firewall, secure network or other security mechanism, the Customer must ensure Activeport is provided with all network and security rights, privileges and information necessary to enable Activeport to access the Software and Designated System to provide the Support Services. The minimum access requirements under this clause enable authorised Activeport personnel to review the exact Customer environment (including software, data and operational items) and significantly improve problem analysis and resolution. Only those Activeport personnel who are specifically authorised by the Customer will be permitted to access the Customer Designated System and Sites. Activeport will, where requested by the Customer, comply with all reasonable security requirements in order to obtain such access.

5.2 Exclusions and Limitations. Activeport is entitled (at its discretion) to refuse to provide Support Services or charge additional fees on a time and materials basis for doing so if: (a) Customer fails to provide authorisation, approvals or information necessary for Activeport to resolve a reported Work Order or adequate access to the Designated System or Site as required by clause 5.1. ACCESS; (b) the Customer fails to provide trained personnel capable of assisting in the resolution of a Work Order; (c) despite reasonable efforts of Activeport and the Customer, the defect, issue, incident or problem reported in a Work Order cannot be replicated or otherwise identified; (d) the Customer is in default of any Official Order under the EULA with Activeport and has not remedied the breach in accordance with the terms of the EULA; or (e) to the extent that the defect, issue, incident or problem reported in a Work Order is caused by (or its extent or impact worsened by): (i) any modification or customisation made to the Software; (ii) a failure of the Customer to accept or implement a Fix, Update or Upgrade offered by Activeport (iii) a failure by the Customer to use the Software correctly and in accordance with the Documentation; (iv) a failure by the Customer to maintain data integrity and validation; (v) changes to system settings made by the Customer or a third party in any manner other than strictly in accordance with the Documentation or as approved by Activeport; (vi) the Customer running “house-keeping” programs in any manner other than strictly in accordance with the Documentation or as approved by Activeport; (vii) an event of force majeure (including, for example, power interruption or communication problems); (viii) changes made to the Designated System on which the Software runs, relocation of relevant equipment, re-hosting to new equipment or interconnection or interface of the Software with any other software; (ix) any queries, changes, deletions, or additions to data or data structures made outside of the Software or within a database upon which the Software relies; (x) the Customer failing to provide suitable information or resources required for the replication, analysis, or explanation of reported problems, or lack in the fitting, testing, or acceptance by the Customer of solutions provided; (xi) a virus or any other form of disabling code is introduced by the Customer or other unauthorised third party; (xii) the Customer failing to implement security procedures to protect the Software and Designated System consistent with industry best practice; or (xiii) the Software being used with any software or hardware not recommended or supported by Activeport.

5.3 Old Systems. To reflect the additional costs of servicing earlier releases of Software and out-of-date or obscure Designated System configurations, Activeport reserves the right to withdraw Software Support Services or charge additional Software Support Services Fees for a particular release of Software or Designated System. Activeport further reserves the right to withdraw Support Services, or to elect to cease providing updates and upgrades for the whole or any part or component of any Software on providing the Customer with 12 months advance notice in writing.

6. License Usage
The Customer agrees to maintain accurate records of its use of the Software, including the number of users, devices, circuits or other metrics as specified in the applicable Customer Contract. Upon request, the Customer shall provide Activeport with a monthly usage report, detailing the consumption of the Software (including, but not limited to, the number of active users, devices, transactions, circuits, sites, PoPs or other applicable metrics) no later than ten (10) business days following the end of each calendar month. Such reports shall be submitted in a format reasonably specified by Activeport and certified as accurate by an authorised representative of the Customer. Activeport, or its authorised representatives, shall have the right, upon reasonable prior written notice of at least thirty (30) days and no more than once per calendar year (unless non-compliance is suspected), to conduct an audit of the Customer’s systems, records, and facilities to verify compliance with the terms of the Customer Contract, including the scope of licenses purchased and usage thereof. Such audits shall be conducted during regular business hours in a manner that minimises disruption to the Customer’s operations. The Customer shall reasonably cooperate with Activeport during the audit, including by providing access to relevant records and systems as necessary. If the audit reveals that the Customer has exceeded the authorised use of the Software, the Customer shall promptly pay the Supplier any additional license fees, maintenance fees, or other charges applicable to such excess use, as determined by the Supplier’s then-current pricing, and shall bear the reasonable costs of the audit if the underpayment exceeds five percent (5%) of the fees owed. Activeport agrees to treat all information obtained during the audit as confidential in accordance with the confidentiality provisions of a Customer Contract.

7. Warranties
7.1 Performance. Whilst the Customer is receiving Software Subscription Services in accordance with a Customer Contract, Activeport will ensure that the Software, when used as permitted by Activeport and in accordance with the instructions in the Documentation (including use on the Designated System), will operate substantially as described in the Documentation. Activeport does not warrant the Customer’s use of the Software will be error-free or uninterrupted. Activeport will at no additional cost and as its sole obligation and Customer’s exclusive remedy for any breach of this warranty, use commercially reasonable efforts to correct any reproducible error in the Software reported to Activeport. This warranty shall immediately become void in the event of any modification being made to the Software without the prior written consent of Activeport.

7.2 Network Services Activeport does not warrant or represent the performance, accuracy, reliability or continued availability of the Network Services or that the Network Services will operate free from faults, errors or interruptions. Customer acknowledges that the Network Services may not be available from time to time because of several factors, including capacity constraints, electromagnetic interference, adverse weather conditions, excessive network use, equipment failure, Force Majeure event; or during maintenance activities and that in such circumstances, Activeport is not obliged to supply the Network Services.

Activeport and its suppliers will, from time to time, conduct scheduled or unscheduled maintenance which may interfere with the provision of Services. Activeport will use its best endeavours to provide Customer with 10 workings days’ notice of any scheduled maintenance were reasonably possible. Activeport will use reasonable efforts to rectify identified Faults within a reasonable period. Activeport is not responsible for rectifying Faults where the Fault arises in or is caused by its suppliers outside its reasonable control, but we will request that suppliers rectify such Faults. Customer is responsible for repairing Faults relating to equipment, which is not owned by Activeport. Activeport will use its best endeavours to provide the Network Services in accordance with the relevant Service Levels as set out in the Customer Contract. The Customer is required to report to Activeport, any error or failure by Activeport in respect of the delivery and performance of the Services as set out in the Customer Contract. The Customer will: a) ensure all equipment used by the Customer in connection with the Network Service has suitable space and power, and complies with law, regulations, and any Activeport requirements; b) Assist Activeport and its Personnel to comply with their obligations set out in General Activeport Obligations, and assist Activeport and its Personnel to safely, efficiently, and legally provision, supply and access the Sites, equipment, data and information; c) Not use or attempt to use the Service, or allow an End User to use the Service, other than for its intended purpose, to break laws, infringe upon anyone else’s rights, or harm property or people or to in a way that damages, interferes with or interrupts the Service, the Activeport Network or, a supplier; d) Comply with all relevant laws and directions of a Regulator relating to the Service.

7.3 Disclaimers. To the extent permitted by law, the express warranties in this clause 8 are in lieu of all other warranties, express, implied, or statutory, regarding the Software, Services and any materials developed during the performance of the Services, including any warranties of merchantability, fitness for a particular purpose, title, and non- infringement of third-party rights. To the extent that third party products are provided to the customer under a Customer Contract, the warranties and indemnities provided to the customer under a Customer Contract will be limited to those that Activeport is able to obtain from the supplier. Customer acknowledges that it has relied on no warranties other than the express warranties in the Customer Contract.

8. Infringement Claims
8.1 Activeport will defend and indemnify the Customer against a successful third party claim that the Software infringes an Intellectual Property Right of any third party, provided that: (a) the Customer notifies Activeport in writing within thirty (30) days after it becomes aware of the claim; (b) Customer provides Activeport with sole control of the defence and all related settlement negotiations (other than negotiations that may impose an obligation or liability on Customer); and (c) the Customer provides Activeport with the assistance, information and authority necessary to perform Activeport’s obligations under this clause. Reasonable out-of-pocket expenses incurred by the Customer in providing such assistance will be reimbursed by Activeport.
8.2 Activeport shall have no liability for any claim of infringement based on use of a superseded or altered version of Software or use not contemplated within the Documentation if the infringement would have been avoided by the use of a current unaltered version of the Software which Activeport offers to the Customer as contemplated in the Documentation.
8.3 In the event the Software is held or is believed by Activeport to infringe, Activeport will have the option, at its expense, to (a) modify the Software to be non-infringing; or (b) obtain for the Customer a license to continue using the Software. In the event that neither of these options is commercially reasonable, either party may terminate the Customer Contract to the extent that it relates to the infringing portion of the Software and may pursue its rights at law. This clause 8. INFRINGEMENT CLAIMS states Activeport’s entire liability and the customer’s exclusive remedy for any claims of infringement.

9. Limitation of Liability
In no event will Activeport be liable for any consequential, indirect, exemplary, special, or incidental damages (including additional costs arising from delay or increased inefficiency, loss of contracts or loss of use), or any lost data, lost profits, lost revenue, loss of anticipated saving, loss of production, business interruption, or lost opportunity, arising from or relating to the use of Activeport Software and Services (including arising from negligence), regardless of whether the loss was within the contemplation of the parties at the time of starting to use the Activeport Software or not. In addition, Customer disclaims all liability of any kind of Activeport’s suppliers and related companies. These limitations shall apply even if any other remedy fails of its essential purpose. In no event will Customer or any of its affiliates raise any claim relating to or under this EULA (a) more than 2 years after the discovery of the circumstances giving rise to such claim.

10. Term and Termination
10.1 Termination. Activeport may terminate this EULA if the other party breaches any material provision of this Agreement and does not cure such breach within thirty (30) days after receiving written notice thereof.

10.2 Effects of Termination. On Termination or Expiration of: (a) this EULA, all Customer Contracts shall continue unaffected; (b) a Customer Contract for Software Subscription Services, the Customer must promptly discontinue all use of the Software and return or destroy all copies of the Software or Documentation; and (c) any Customer Contract, all amounts under the Customer Contract relating to the Services provided by Activeport prior to termination become immediately due and payable, regardless of the contracted time for payment. The parties acknowledge that this is payment for obligations performed and is not a penalty.

11. General
11.1 Proprietary Rights. The parties agree that, subject to any contrary declaration in the Customer Contract, the Intellectual Property Rights in any materials developed during the performance of any Services shall vest in Activeport on creation. The Software and Documentation and any materials developed during the performance of Services (Property), and all worldwide Intellectual Property Rights therein, are the exclusive property of Activeport and its suppliers. Customer acknowledges that the Property including where relevant its structure, organization, and any Source Code constitutes valuable trade secrets of Activeport and its suppliers. All rights in and to the Property not expressly granted to Customer in a Customer Contract are reserved by Activeport and its suppliers. Nothing in a Customer Contract will be deemed to grant, by implication, estoppel or otherwise, a license under any of Activeport’s existing or future patents. Customer will not remove, alter, or obscure any proprietary notices (including copyright notices) of Activeport or its suppliers on the Property

11.2 Modifications. Customer shall not make any modification (including to the Source Code) or use the Software to develop any other product or derivative work, without the prior written consent of Activeport. All right, title and interest in any modification or derivative work of the Software or any part of it including all Intellectual Property Rights, shall be owned by and exclusively vested in Activeport. Customer agrees to execute, or have executed, any documents or instruments deemed reasonably necessary by Activeport to transfer to and vest all such right, title and interest in Activeport. Should Customer require use of source code to develop integration with the Software, Customer must send a written request to Activeport, identifying relevant details of the product with which integration is sought and the nature of the information required. Upon receipt of that notice, Activeport will make available to the Customer information that may reasonably be required to allow Customer to develop the integration.

11.3 Compliance with Laws. Customer will comply with all applicable export and import control laws and regulations in its use of the Property and, in particular, Customer will not export or re-export the Property without all required government licenses and Customer agrees to comply with the export laws, restrictions, national security and regulations of all applicable foreign agencies or authorities. Customer will defend, indemnify, and hold harmless Activeport from and against any violation of such laws or regulations by Customer or any of its agents, officers, directors, or employees.

11.4 Force Majeure. Activeport shall not be liable for any delays in performance of any of the obligations hereunder due to causes beyond its reasonable control including, without limitation, fire, strike, war, acts or terrorism, riots, acts of any civil or military authority, acts of God, computer viruses, internet failures, judicial action, unavailability or shortages of labour, materials or equipment, failure or delays in delivery of vendors and suppliers or delays in transportation.

11.5 Inspections. Customer will permit Activeport or its representatives to review Customer’s relevant records and inspect Customer’s systems including remote monitoring of the Customer’s use of the Designated System to ensure compliance with each Customer Contract. Activeport will give Customer at least five (5) days advance written notice of any such inspection and will conduct the same during normal business hours in a manner that does not unreasonably interfere with Customer’s normal operations. In the event that such inspections identify Customer usage of Software exceeds the relevant restriction in the Customer Contract, then Customer must immediately pay to Activeport (at Activeport’s then current list price) or Activeport’s Partner, the additional Fees to reflect the Customer’s actual use of the Software, together with Activeport’s costs of the inspection including the Fees of any professional advisers instructed by Activeport to assist in the Customer’s new license will become effective upon payment of such invoice.

11.6 Assignments. No Customer Contract nor any rights, duties or obligations set forth in any Customer Contract, including without limitation, licenses with respect to the Software, may be assigned, sublicensed, encumbered, mortgaged, assumed. or otherwise by Customer, in whole or in part, whether directly or by operation of law, including by way of sale of assets, merger or consolidation, or a transaction that results in the equity owners of Customer before the transaction owning less than a majority of the outstanding equity of Customer following the transaction (which shall be considered an assignment hereunder), without the prior written consent of Activeport, and any attempt to do so without the express prior written consent of Activeport (which consent shall be in its sole discretion) shall be deemed a material breach of the Customer Contract(s) which is incapable of being remedied and shall automatically terminate the Software license(s) and all other rights granted to Customer thereunder. Subject to the foregoing, each Customer Contract will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.

11.7 Notices. All notices, consents, and approvals under any Customer Contract must be delivered in writing by courier, by electronic facsimile (email), or by certified or registered mail (postage prepaid and return receipt requested) to the other party at the address set forth on in the relevant Customer Contract, and will be effective upon receipt or an email confirmation message or five (5) business days after being deposited in the mail as required above, whichever sooner. Either party may change its address by giving written notice of the new address to the other party.

11.8 Governing Law and Venue. Each Customer Contract and any claims related to them will be governed by the laws of the jurisdiction of Western Australia and, regarding Intellectual Property Rights or confidentiality, by Australian Commonwealth laws; as such laws apply to contracts between residents of that state performed entirely within such state. The United Nations Convention on Contracts for the International Sale of Goods does not apply to any Customer Contract. Any dispute action or dispute proceeding arising from or relating to any Customer Contract must be brought in Perth, Western Australia. In the event of a court action or civil proceeding arising from or relating to any Customer Contract each party irrevocably submits to the jurisdiction and venue of the courts of Perth, Western Australia as the venue for any such action or proceeding.

11.9 Remedies. Except as provided in clauses 7. WARRANTIES and 8. INFRINGEMENT CLAIMS, the parties’ rights and remedies under any Customer Contract are cumulative. Customer acknowledges that the Software contains valuable trade secrets and proprietary information of Activeport, that any actual or threatened breach of clause 4 will constitute immediate, irreparable harm to Activeport for which monetary damages would an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought by a party to enforce a Customer Contract, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.

11.10 Severability. If any provision of the EULA is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Without limiting the generality of the foregoing, Customer agrees that clause 9. LIMITATION OF LIABILITY will remain in effect notwithstanding the unenforceability of any provision in clause 7. WARRANTIES.

11.10 Construction. The headings of clauses of this EULA are for convenience and are not to be used in interpreting this EULA. As used in this EULA, the word “including” means “including but not limited to.”
11.11 Counterparts. This EULA and any Customer Contract may be executed in counterparts. each of which will be considered an original, but all of which will constitute the same instrument

11.12 Beneficiaries. The vendors of any Software not owned by Activeport that is provided to the Customer under a Customer Contract shall be third party beneficiaries of the relevant Customer Contract.

11.13 Third Party Products. Activeport warrants that it has and shall continue to have the necessary rights from Third Party Suppliers to grant licenses to the Customer to use the Third-Party Products under the relevant Customer Contract and for the term of that Customer Contract. Customer acknowledges that Support Fees for Third Party Products are based on the fees to Activeport by the Third-Party Supplier. Should a Third-Party Supplier increase the fees charged to Activeport, the Customer understands and agrees that Support Fees under a Customer Contract will increase accordingly. Similarly, Activeport will pass on to Customer the benefit of any decrease in the Support Fee charged by any Third-Party Supplier. Customer acknowledges that it is the responsibility of the Customer to monitor its usage of the Software (including Third Party Products) to ensure that it is properly, legally licensed. Any increase in the Customer’s usage of the Software over and above the relevant restriction in the Customer Contract may require an increase in the number of licenses for its Third-Party Products.

11.14 Contra Proferentum Rule. This EULA and any Customer Contracts may not be construed adversely to a party because that party prepared it.

11.15 Languages and Localisation. Unless otherwise stated in a Customer Contract, reference to any Software, Documentation or product refers to the non-localised English