Licensing

End User License Agreement

THIS END USER LICENSE AGREEMENT is dated: 1st August 2016

Between

ATAME PTY LTD (ACN 612 840 605) (ATAME)

and

THE USER (Licensee)

BACKGROUND

1. ATAME is the exclusive licensee of the Software and has the authority to sub-license the Software to the Licensee.
2. The Licensee has requested, and ATAME has agreed to grant the Licensee a Licence, to use the Software and the Templates on the terms and conditions set out below.

Agreement

1. Definitions and Interpretation
1. In this Agreement unless the contrary intention appears, the following words and expressions have the following meanings:

   "Business Day" means any day which is not a Saturday, Sunday or public holiday;

   "Confidential Information" means any information (written, oral or stored in any form) which comes into either party’s possession for the purpose of or as a result of the use or provision of the Software pursuant to this Agreement, any information provided to the Licensee by ATAME, or to ATAME by the Licensee in confidence, all Licensee data uploaded to or via the software and all information in relation to the Licensee’s clients, and any information specified by either party as confidential and/or trade secrets. Confidential Information does not include information which is in the public domain prior to the information coming into the receiving party’s possession, required to be disclosed by law or disclosed with the written consent of the disclosing party;

   “Event of Default” means if either party:

   1. commits a material breach of this Agreement, including but not limited a failure to pay any amount due and payable under this Agreement;
   2. commits an act of Bankruptcy;
   3. has an application for the appointment of a liquidator for its winding up whether voluntary or involuntary;
   4. has a receiver, official manager, controller or administrator appointed or has any action taken by a mortgagee of the party in possession to appoint a trustee in respect of the party or its assets;
   5. allows judgement or other legal execution to remain unsatisfied for a period of seven days;
   6. should be investigated under any offence provisions of the Corporations Act 2001 (Cth) and be prosecuted for such offence other than offences of a minor or inconsequential nature; or
   7. should enter into a formal or informal scheme of arrangement, composition or any similar arrangement or activity with its creditors;

   “Licence Fee” means the fee set out in; www.atame.com.au

   "Party" means a party to this Agreement and "Parties" has a corresponding meaning;

   “Template” means each audit program template which forms part of or is included in the Software; and

   “Term” means the period set out in Clause 5.

2. In this Agreement unless the contrary intention appears:
1. words and expressions defined in the Background or elsewhere in this Agreement have the meaning ascribed to them and form part of this Agreement;
2. clause headings and the table of contents are inserted for convenience only and are not to be used in the interpretation or construction of this Agreement;
3. words importing the singular include the plural and vice versa;
4. a reference to an annexure, clause, paragraph, recital or schedule is a reference to an annexure to, clause or paragraph of, or recital or schedule to this Agreement.
2. Application of This Agreement

   By using, browsing or accessing the Software the Licensee agrees to be bound by this Agreement.

3. Good Faith

   Each party shall act in good faith towards the other and use its best endeavours to comply with the spirit and intention of this Agreement.

4. Licence

   ATAME hereby grants the Licensee a non-exclusive licence to use the Software on the terms and conditions set out in this Agreement.

5. Term

   The Agreement commences on acceptance by the Licensee of this Agreement or first use of the Software by the Licensee, whichever is earlier, and continues unless terminated under clause 14 of the Agreement.

6. Use of the Software

   The Licensee shall only use the Software in respect of the audit program as set out inwww.atame.com.au]. In the event that the Licensee requires use of the Software for more than the licensed audit program or library template, it must first obtain ATAME’s approval in writing and pay such additional Licence Fee as applicable to the additional audit program templates.

7. Licence Fees

   In consideration for the licence granted in this Agreement the Licensee shall pay to the ATAME the Licence Fees set out in pricing. The Licence Fees are payable upon purchase of an audit program Template.

8. Bug Fixes
   1. ATAME shall be responsible for all “bug-fixes” in relation to the Software and the Licensee shall immediately report and refer any requests for big-fixes to ATAME upon receipt.
9. Sub-Licenses

   The Licensee may not grant any sub-licenses of the Software, including to related or associated entities without the prior written consent of ATAME

10. Confidential Information
1. All Confidential Information supplied to the Licensee by ATAME, or to ATAME by the Licensee, other than where such information is in the public domain by reason other than by the fault of the recipient party, is supplied in confidence solely for the use of the recipient party under this Agreement for as long as this Agreement shall continue in force. The recipient party shall keep such trade secrets and Confidential Information confidential and shall not disclose the same to any other person at any time during the life of this Agreement or after its termination.
2. The recipient party must:
1. keep the disclosing party's Confidential Information confidential and not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the prior written approval of the disclosing party;
2. take all reasonable steps to secure and keep secure all disclosing party's Confidential Information coming into its possession or control; and
3. not memorise, use, modify, reverse engineer or make copies, notes or records of the disclosing party's Confidential Information for any purpose other than in connection with the performance by the recipient party of its obligations under this Agreement.
3. The obligations of confidentiality under clause 10.2 above do not apply to any information that:
1. is generally available to the public (other than by reason of a breach of this Agreement);
2. is required to be disclosed by any applicable Law; or
3. is requested to be disclosed by the disclosing party.
11. Intellectual Property
1. The Licensee acknowledges and agrees that nothing in this Agreement shall constitute an assignment or transfer to the Licensee of any intellectual property rights in the Software or any Template, or any enhancements or customisations of the Software or any Template. For the avoidance of doubt the Licensee acknowledges and agrees that ATAME is and shall remain the owner of all intellectual property rights in relation to the Software and all Templates including but not limited to, copyright, design right (registered or unregistered), trade or service marks (registered or unregistered) (save those which are licensed from third parties) and patents in the design, development, production and operation of the Software, in the Software, the Templates, the documentation, and future releases and the proceeds of the services provided by ATAME pursuant to this Agreement.
2. The Licensor acknowledges that the Licensee shall remain the owner of its pre-existing intellectual property including but not limited to, copyright and trademarks (registered or unregistered) which it may upload though its use of the Software or any Template.
12. Indemnity by the Licensee

    The Licensee acknowledges and agrees that ATAME shall not be liable to any third party, including the Licensee’s customers, in respect of the services rendered by the Licensee or the software and the Licensee agrees and undertakes to indemnify and hold harmless ATAME against any losses, costs, damages and reasonable expenses incurred by ATAME as a result of claims by third parties against ATAME arising out of or involving the services rendered by the Licensee using the software or otherwise.

13. Warranties and Indemnity by ATAME
1. ATAME warrants to the Licensee that it holds a license to all intellectual property in the Software and that the Software and the Templates do not infringe the intellectual property rights of any third party.
2. ATAME agrees and undertakes to indemnify and hold harmless the Licensee against any losses, costs, damages and reasonable expenses incurred by the Licensee as a result of claims by third parties against the Licensee arising out of a breach by ATAME of the above warranty.
3. To the full extent permitted by law, ATAME excludes all warranties, whether express or implied, including any warranties or representations concerning availability of the Software, quality, completeness, accuracy, suitability, acceptability or fitness for purpose in relation to the Software, the Templates, the conduct of any users, all links to or from the Software.
4. Subject to the consumer guarantees provided for in consumer protection legislation (including the Australian Consumer Law) ATAME excludes all liability for any loss, damage, claim, cost or expense whatsoever arising out of or in connection with this Agreement of the Software and the Templates.
14. Termination

    If the Licensee commits an Event of Default and fails to remedy such default within fourteen (14) days after receipt of a notice in writing from ATAME requiring remedy of such breach, ATAME shall have the right to terminate this Agreement immediately, by notice in writing to the Licensee.

15. Rights on Termination
1. Any termination of this Agreement shall be without prejudice to the rights of either party against the other in respect of anything done or omitted to be done under this Agreement prior to such termination or in respect of any sums or claims outstanding at the time of such termination and neither party shall be entitled to make any claim for compensation upon the other party by reason of termination other than where such claim is based on the fault of the other party.
2. Immediately upon termination of this Agreement by either party, the Licensee shall:
1. pay any outstanding balances to ATAME;
2. return to ATAME any and all information or material relating to the Software, the Templates, and/or ATAME’s business provided to the Licensee by ATAME during the currency of this Agreement; and
3. discontinue use of the Software and Templates and any identification which associates the Licensee with ATAME and/or the Software or the Templates
16. Force Majeure

    Either party shall be excused from performing any or all of its obligations under this Agreement if that party becomes wholly or partially unable to carry out such obligations for reasons beyond its control but only for so long as those reasons prevent performance. If an event of force majeure continues for more than four (4) weeks either party may terminate this Agreement by notice in writing to the other party.

17. Assignment

    The Licensee may not assign this Agreement or their rights or obligations under it, without the prior consent in writing of ATAME.

18. Governing Law

    This Agreement is governed by the laws of the State of Queensland, Australia. The parties irrevocably submit themselves to the jurisdiction of the courts of that State.

19. Waiver

    A waiver by either party of any of the terms and conditions of this Agreement in any one instance shall not be deemed to be a waiver of such term or condition for the future, nor or any subsequent breach thereof. All rights, remedies, undertakings, obligations and agreements contained in this Agreement shall be cumulative and none of them shall be in limitation of any other remedy, right, undertaking, obligation or agreement of either party.

20. Entire Agreement

    This Agreement contains the entire understanding of the parties relating to the subject matter herein contained, and this Agreement cannot be changed or terminated orally. This Agreement supersedes any previous agreements and negotiations between the parties in relation to the Software.

21. Severability

    In the event that one or more provisions of this Agreement are rendered invalid because it contravenes any statute, regulation, by-law or order or otherwise contravenes or offends any provision of law or equity, that provision shall to the necessary extent be read down or excised from this Agreement.

22. Variation

    This Agreement shall only be capable of being varied in writing signed by the parties to this Agreement or persons authorised to sign agreements on behalf of the parties to this Agreement.

23. No Partnership

    Nothing in this Agreement shall constitute a partnership or joint venture between any of the parties.

Last updated: August 2017