NORTHPOINT SOFTWARE - END USER LICENSE

1. Background

1.1 Ducala Pty Ltd trading as Northpoint (Northpoint) is the owner of this software described in this license as the Software.

1.2 By clicking the ["I Accept"], installing the Software, signing this license (or the License Details), or by accessing and/or using the Software (whichever occurs first), the Licensee agrees to be bound by this license. If the Licensee does not agree to the terms of this license, it must not commence use of, or continue using, the Software.

1.3 The Software is only available to the Licensee if it has purchased a license to use the Software from an Approved Reseller.

1.4 The Licensee warrants and represents that:

(a) it has the legal capacity and authority to accept and enter into this license;

(b) it will only use the Software in accordance with this license; and

(c) the requirements of clause 1.3 have been met.

1.5 Northpoint reserves the right to alter this license at any time. Any amendments made to this license will be effective immediately on the amendments being made available via the Software (including via any Update) or otherwise on the website operated by Northpoint for the Software including at www.northpoint.com.au.

2. The Software

2.1 The Software relies on Input Data being made available by the Licensee or by a third party on the Licensee's behalf (including by an Approved Reseller). The Input Data is read, altered, processed, manipulated and otherwise handled by the Software. The Licensee expressly approves such use of the Input Data by Northpoint for the purpose of operating the Software, and acknowledges that all rights in the processes undertaken by the Software using the Input Data and the output of any such processes created by the Software are or will be owned by Northpoint (as more particularly described in clause 3.3)

2.2 The accuracy, effectiveness and output of the Software is reliant on the accuracy of Input Data, and that Input Data being made available in a format nominated by Northpoint in a timely manner as required by Northpoint. Northpoint is not responsible for the performance or output of the Software where such performance or output is the result of the Input Data.

2.3 The Licensee must co-operate and work with Northpoint and/or the Approved Reseller at the direction of Northpoint throughout the term of this license to ensure that the necessary interface between the Input Data and the Software is maintained, and that the Input Data is of the suitable standard and quality required for the Software to operate to Northpoint's satisfaction.

2.4 Northpoint may issue new releases, revisions, or enhancements (together Updates) to the Software either free of charge or for an additional fee. The then current version of this license applies in relation to all Updates.

2.5 Northpoint has the right to change, modify, restrict, expand, suspend or Update the Software and any aspect or feature of the Software at any time.

2.6 All requests for modifications to, or customisations of, the Software must be made by the Licensee to the applicable Approved Reseller. Such requests will be dealt with in accordance with the terms of the Approved Reseller Agreement.

2.7 Minimum hardware, software and other system requirements may be specified by Northpoint for the Software from time to time. The Licensee must ensure that its hardware, software and systems comply with these minimum requirements throughout the term of this license.

3. License Rights

3.1 Subject always to compliance with the terms of this license, Northpoint grants to the Licensee a limited non-exclusive, non-transferable license to use the Software for the Licensee's normal business purposes or such other purpose as is expressly approved by Northpoint in writing.

3.2 The Licensee may make the Software available to its Personnel. The number of Personnel who are entitled to access the Software is described in the License Details. The number of users may be defined as a number of people, a number of individual machines or both. If the number of Personnel is increased during the term of this license, Northpoint reserves the right to increase the License Fee on account of the additional Personnel.

3.3 The Licensee acknowledges and agrees that the Software is proprietary to Northpoint and that nothing in this license:

(a) transfers or assigns to the Licensee (or any third party) any Intellectual Property Rights owned or used under license by Northpoint, including in or in relation to the Software; and

(b) all existing Intellectual Property Rights and goodwill in the Software are vested, and all future Intellectual Property Rights and goodwill in the Software will vest in, Northpoint.

3.4 The Licensee must not:

(a) alter, modify or remove any branding, copyright warnings or messages included in or on the Software;

(b) alter or modify the Software;

(c) reverse engineer, decompile or otherwise attempt to derive the Software source code from the object code;

(d) purport to assign or otherwise transfer the Software to any person; or

(e) unless otherwise authorised under the terms of this license (or an Approved Reseller Agreement), use the Software to develop, or combine the Software with, other software or documentation.

3.5 Except as permitted under the Copyright Act 1968 (Cth), or any other applicable law in the location from which the Licensee accesses the Software, it may not adapt, reproduce, publish or distribute copies of the Software or any information or material contained in or derived from the Software in any form (including by e-mail or other electronic means), without Northpoint's prior written consent or as otherwise permitted by this clause 3.

4. License Fees and Charges

4.1 The Licensee must pay the License Fees to the Payee.

4.2 Unless otherwise agreed in writing, all License Fees must be paid within 30 days of the invoice date.

4.3 License Fees must be paid in full and without setoff or deduction.

4.4 Northpoint may alter the Payee at any time and/or direct that future License Fees are paid directly to Northpoint, including because:

(a) the Payee is no longer an Approved Reseller (and Northpoint has approved the Licensee's ongoing use of the Software);

(b) Northpoint's arrangements with the Payee have changed; or

(c) Northpoint has appointed a new Approved Reseller.

5. Goods and services tax

5.1 Unless specifically described in this license as 'GST inclusive', any sum payable (or amount included in the calculation of a sum payable), or consideration to be provided, under or in accordance with this license does not include any amount on account of GST.

5.2 Where any supply to be made by one party (Supplier) to another party (Recipient) under or in accordance with this license is subject to GST (other than a supply the consideration for which is specifically described in this license as 'GST inclusive'):

(a) the consideration payable or to be provided for that supply but for the application of this clause (GST Exclusive Consideration) shall be increased by, and the Recipient shall pay to the Supplier, an amount equal to the GST payable by the Supplier in respect of that supply (GST Amount); and

(b) the Recipient must pay the GST Amount to the Supplier, without set-off, deduction or requirement for demand, at the earlier of:

(i) the time that the GST Exclusive Consideration is payable or to be provided; and

(ii) the time that the Supplier has to pay the GST in respect of that supply.

5.3 If any payment to be made to a party under or in accordance with this license is a reimbursement or indemnification of an expense or other liability incurred or to be incurred by that party, then the amount of the payment must be reduced by the amount of any input tax credit to which that party is entitled for that expense or other liability, such reduction to be effected before any increase in accordance with the preceding sub-clause.

5.4 Notwithstanding any other provision of this license, the Recipient need not make any payment for a taxable supply made by the Supplier under or in accordance with this license until the Supplier has given the Recipient a tax invoice in respect of that taxable supply.

5.5 If an adjustment event has occurred in respect of a taxable supply made under or in accordance with this license, any party that becomes aware of the occurrence of that adjustment event must notify each other party to that taxable supply as soon as practicable, and all of those parties agree to take whatever steps are necessary (including to issue an adjustment note), and to make whatever adjustments are required, to ensure that any GST or additional GST on that taxable supply, or any refund of GST (or part thereof), is paid no later than 28 days after the Supplier first becomes aware that the adjustment event has occurred.

5.6 A word or expression used in this clause 5 which is defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the same meaning in this clause.

6. Training and Installation

6.1 The Licensee is responsible for the installation of the Software.

6.2 The Approved Reseller has been authorised by Northpoint to undertake training, installation and support for the Software in accordance with arrangements agreed by the Approved Reseller directly with the Licensee.

7. Term and Termination

7.1 Unless terminated sooner in accordance with the terms of this license, the Licensee can continue to access and use the Software until the sooner of:

(a) the Licensee terminating the license under clauses 7.2 or 7.4;

(b) Northpoint terminating the license under clauses 7.3 or 7.4; or

(c) Northpoint directing that the Software is no longer being made available.

7.2 Following the completion of the Minimum Term (if any) the Licensee may terminate this license without cause by providing three months notice in writing. If the Licensee seeks to terminate prior to the expiry of the Minimum Term (other than for breach under clause 7.4), it must immediately pay all License Fees that would have been payable for the remainder of the Minimum Term.

7.3 Northpoint can terminate this license with immediate effect:

(a) by providing 30 days notice in writing to the Licensee at any time;

(b) if the applicable Approved Reseller Agreement is terminated for any reason; or

(c) if the Licensee suffers an Insolvency Event.

7.4 Either party may terminate this license by giving the other party notice if:

(a) the other party breaches a term of this license and fails to remedy the breach within 14 days after receiving notice requiring it to do so; or

(b) the other party breaches a term of this license where that breach is not capable of remedy.

7.5 Following termination of this license for any reason, the Licensee:

(a) must make payment of all amounts due and payable under the terms of this license to the Payee;

(b) must cease all use of the Software and immediately uninstall, destroy or otherwise permanently remove from its possession, power, custody or control the Software; and

(c) if Northpoint or an Approved Reseller has made any documentation or other material available to the Licensee relating to the Software, immediately destroy any such documentation or other material.

7.6 Termination of this license does not affect any accrued rights or remedies of either party.

8. Liability and indemnities

8.1 The Licensee acknowledges and agrees that the Software is made available by Northpoint on an 'as is' basis, and that, subject to clause 8.3, no warranty or representation is made about the suitability of the Software for any particular purpose, the availability of the Software, the performance of the Software or the accuracy of any data, information, reports or results generated or otherwise made available by the Software.

8.2 To the extent permitted by law, all conditions, warranties, guarantees, rights, remedies, liabilities and other terms implied by statute, custom or the common law are excluded from this license. Where legislation implies any condition or warranty, and that legislation prohibits Northpoint from excluding or modifying application of, or its liability under, any such condition or warranty, that condition or warranty will be deemed included but Northpoint's liability will be limited for a breach of that condition or warranty to the minimum remedy provided for in that law.

8.3 If a supply by Northpoint under these terms and conditions is a supply of goods or services to a consumer within the meaning of the Australian Consumer Law, nothing contained in these terms and conditions excludes, restricts or modifies the application of any provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law, provided that, to the extent that the Australian Consumer Law permits Northpoint to limit its liability, then Northpoint's liability shall be limited to:

(a) in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and

(b) in the case of goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods,

8.4 As a condition of the Licenee's use of the Software, it agrees to indemnify and keep indemnified Northpoint and all of its officers, agents, employees or contractors (Those Indemnified) against all Damages whether incurred by or awarded against Northpoint or Those Indemnified that Northpoint or Those Indemnified may sustain or incur as a result, whether directly or indirectly, of:

(a) any breach of this license by the Licensee;

(b) the Licensee's access to and/or use of the Software;

(c) Northpoint's access to and/or use any Customer Data;

(d) the Licensee's dealings with Northpoint or an Approved Reseller in connection with the Software; and/or

(e) any loss of, or damage to, any property, or injury to, or death of, any person caused by the Licensee's access to and/or use of the Software.

9. Disclaimer

9.1 The Licensee is responsible at all times for conducting its business in accordance with all relevant Laws.

9.2 The Software is designed to assist the Licensee to conduct its business and provide a range of other value added features and benefits. Usage of the Software may not result in the Licensee's compliance with all relevant Laws, and is not designed or intended to achieve such compliance.

10. Dispute Resolution

10.1 If the Licensee claims that a dispute has arisen out of or in relation to this license (Dispute), the Licensee must comply with this clause 9 before it starts arbitration or court proceedings.

10.2 The Licensee must give Northpoint a notice setting out details of the Dispute within 48 hours of the Licensee becoming aware of the Dispute.

10.3 During the 14 days after a notice is given under clause 10.2, Northpoint and the Licensee must use their reasonable efforts to resolve the Dispute. If they cannot resolve the Dispute within that period, they must refer the Dispute to a mediator if either of them requests.

10.4 If Northpoint and the Licensee cannot agree on a mediator within seven days after a request under clause 10.3, the chairman of LEADR or the chairman's nominee will appoint a mediator.

10.5 The role of a mediator is to assist in negotiating a resolution of the Dispute. A mediator may not make a binding decision on a party to the Dispute except if the party agrees in writing.

10.6 Any information or documents disclosed under this clause 9:

(a) must be kept confidential; and

(b) may only be used to attempt to resolve the Dispute.

10.7 The Licensee must pay its own costs of complying with this clause 9. Northpoint and the Licensee will equally pay the costs of any mediator.

10.8 Either Northpoint or the Licensee may terminate the dispute resolution process by giving notice to the other after it has complied with clauses 10.1 to 10.3. Clauses 10.6 and 10.7 survive termination of the dispute resolution process.

10.9 If either of Northpoint or the Licensee breach clauses 10.1 to 10.8, the other party does not have to comply with those clauses in relation to the Dispute.

11. General

11.1 No party is liable for any failure to perform or delay in performing its obligations under this license if that failure or delay is due to anything beyond that party's reasonable control. If that failure or delay exceeds 90 days the other party may terminate this license with immediate effect by giving notice to the other party. This clause does not apply to any obligation to pay money.

11.2 Any indemnity or any obligation of confidence under this license is independent and survives termination of this license. Any other term by its nature intended to survive termination of this license survives termination of this license.

11.3 This license constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.

11.4 A term or part of a term of this license that is illegal or unenforceable may be severed from this license and the remaining terms or parts of the terms of this license continue in force.

11.5 A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.

11.6 Except where this license expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.

11.7 This license is governed by the law of South Australia and each party irrevocably and unconditionally submits to the non exclusive jurisdiction of the courts of South Australia.

11.8 Payee means the Approved Reseller unless otherwise described in the License Details.

12. Defined Terms

Unless otherwise provided in this license:

Approved Reseller Agreement means the agreement between Northpoint and an Approved Reseller under which the Approved Reseller is provided with the right to market, distribute, sell and support the Software.

Approved Reseller means the approved reseller appointed by Northpoint for the Software and described as the approved reseller in the License Details or, if no approved reseller is named in the License Details, Northpoint.

Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth) as given effect under Part XI of the Competition and Consumer Act 2010 (Cth), and under the same or similar provisions of equivalent State and Territory fair trading acts, as amended or replaced from time to time.

Damages means liabilities, expenses, losses, damages and costs (including legal costs on a full indemnity basis (whether incurred by or awarded against a party)) including those associated with any third party claim.

Documentation means the user manuals and any other documents or material related to the Northpoint Software made available by Northpoint, together with any data, report, material or document generated by or using the Software.

Input Data means the following information uploaded into the Software by the Customer or a third party on behalf of the Customer (including an Approved Reseller):

(a) GPS location and related vehicle tracking data; and

(b) other information which Northpoint and an Approved Reseller and/or the Licensee agree in writing should form part of this definition of Data from time to time.

Intellectual Property Rights means all intellectual property rights, including but not limited to, the following rights:

(a) patents, copyright, rights in circuit layouts, designs, moral rights, trade and service marks (including goodwill in those marks), domain names and trade names and any right to have confidential information kept confidential;

(b) any application or right to apply for registration of any of the rights referred to in paragraph (a); and

(c) all rights of a similar nature to any of the rights in paragraphs (a) and (b) which may subsist anywhere in the world (including Australia),

whether or not such rights are registered or capable of being registered.

Laws means laws, acts, ordinances, rules, regulations, other delegated legislation, codes and the requirements and directions of any relevant Commonwealth, State and Local Government departments, bodies, instrumentalities and trusts and public authorities in force from time to time.

Licensee means the party described in the License Details.

License Details means the hard copy or electronic form made available by the Approved Reseller and signed or accepted by the Licensee containing the key terms on which the Licensee is being granted with access to the Software.

License Fees means the fees and charges payable by the Licensee to the Payee for the purposes of the Licensee accessing and using the Software under the terms of this licence.

Minimum Term has meaning described in the License Details

Payee means the Approved Reseller or such other party as described in the Licence Details as a payee or directed by Northpoint under clause 4.4.

Personnel means the officers and employees of the Licensee;

Update has the meaning described in clause 2.4.

Software means the software made available by Northpoint the Licensee or otherwise described in the License Details, and includes any improvements, enhancements, modifications or developments of that software (including any new releases, new versions or modifications) made available by Northpoint to the Licnesee and, unless indicated otherwise, includes all Documentation.



Minter Ellison Lawyers - Version 1 November 2012