Software License Agreement

NOTICE TO ALL USERS:

PLEASE READ THIS CONTRACT CAREFULLY. BY CLICKING THE ACCEPT BUTTON OR INSTALLING THE SOFTWARE, YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN CONTRACT SIGNED BY YOU. DO NOT PROCEED IF YOU DO NOT AGREE

This Software Licence Agreement is made between you, and the Class family of companies – Class Super Pty Ltd ABN 46 121 158 503 and Class Investment Reporter Pty Ltd ABN 84 153 194 622 of Level 3, 228 Pitt Street, Sydney NSW 2000 (“Licensors”). By clicking on the “I/We accept the terms and conditions of this Software Licence Agreement” button you are indicating your acceptance of this Software Licence Agreement and agree to be legally bound by it.

RECITALS:

A. The Licensors carry on the Business of providing a range of superannuation and investment reporting software.

B. The Licensee is eligible to use this software under the terms outlined in this agreement.

C. The Licensee wishes to use the Licensor’s software and the Licensors agree to provide that software subject to the terms and conditions of this Software License Agreement (SLA).

INTERPRETATION

Headings are for convenience only and do not affect interpretation. The following rules apply unless the context requires otherwise:

D. The singular includes the plural, and the converse also applies.

E. A gender includes all genders.

F. Certain terms are defined in a schedule to this Agreement. If a word or phrase is defined, its other grammatical forms have the corresponding meaning.

G. A reference to a clause or schedule is a reference to a clause of or a schedule to this Agreement.

H. A reference to an agreement or document (including, without limitation a reference to this Agreement) is to the agreement or document amended, supplemented, novated or replaced, except to the extent prohibited by this Agreement or that other agreement or document.

I. A reference to a party to this Agreement or another agreement or document includes the party’s successors and permitted substitutes and permitted assigns (and where applicable, the party’s legal personal representatives)

J. A reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it.

K. A reference to conduct includes an omission, statement or undertaking, whether or not in writing.

L. A reference to an agreement includes any undertaking, deed, agreement, and legally enforceable arrangement, whether or not in writing, and a reference to a document includes an agreement (as so defined) in writing, and any certificate, notice, instrument or document of any kind.

M. Mentioning anything after include, includes or including does not limit what else might be included.

N. A reference to dollars and $’s is to Australian currency.

1. Commencement of Agreement

This SLA will commence on the date that the ‘Accept’ is clicked, or when a Licence Fee Agreement is executed by all parties or the date which the Licensee has an ‘Open fund’ on Class Super or Class Investment Reporter (“Software”), whichever occurs first, unless a current Agreement for the use of the Software has already been executed by the parties.

2. Licence

2.1 This Agreement outlines the terms and conditions for the use of the Software.

2.2 Upon payment of the Licence Fee, the Licensee is granted a non-exclusive, non-transferable, limited license (the “Licence”) to access and use the Software from a computer, device, workstation terminal, or other electronic device including a network server subject to the terms and conditions of this Agreement.

Without the Licensors prior written consent the Licensee must not sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Software in any way or reverse engineer or access the Software in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Software, or (c) copy any ideas, features, functions or graphics of the Software.

2.3 If the Licence Fee is not paid to the Licensor’s nominated bank account via direct deposit (electronic transfer) within 30 days of the due date following the issue of a tax invoice, without further notice the Licensors may suspend the Licence.

2.4 The Licensors warrant that they have the sole right and authority to grant this Licence to the Licensee. Without limiting the foregoing, the Licensors warrant that there are no existing restrictions or constraints to grant the Licence to the Licensee.

2.5 The Licensee warrants that no authorisation, consent, approval or licence of, or filing or registration with, any court or government department, commission agency or instrumentality is or will be necessary or required for the Licensors to enter into and give effect to this Agreement.

2.6 Except to the extent as may be necessary to use the Software, the Licensee shall keep confidential all details of the function, purpose and/or operation of the Software and of the contents of any manuals and other explanatory material supplied by the Licensors.

2.7 The Licensee acknowledges and agrees that other than the Licence nothing in this Agreement is intended to, nor shall it be construed to give the Licensee any intellectual property rights or other rights in any trademarks, know-how, business names, software or other materials provided by the Licensors under this Agreement.

3. Hardware Specifications

3.1 The Licensee agrees and acknowledges that the Software must be used in conjunction with hardware of equal or higher specifications than the minimum specifications set out on the Class web site (https://www.class.com.au/minimum-hardware-requirements).

3.2 The Licensors warrant that during the term of this Agreement, the Software will operate substantially in accordance with this Agreement when used in conjunction with the hardware and operating system specified on the Class web site (https://www.class.com.au/minimum-hardware-requirements).

4. Terms and Conditions

The Licensee agrees and accepts to the Terms and Conditions relating to the usage of Software and Data Services provided by the Licensor and/or Data Services supplied through the Licensors as specified on the Class web site (https://www.class.com.au/terms).

The Licensors utilise Web Services to facilitate interaction between the client and server components of the application. These Web Services may also be used for integration with other websites and systems (“Target Systems”) provided that prior permission to integrate to the Target Systems is obtained from Class Financial Services as detailed in the Licence Fee Agreement.

The Licensors will each provide comprehensive support services for the Software as detailed in the Licence Fee Agreement and any additional terms and conditions specific to this individual contract, if applicable, are detailed in the Licence Fee Agreement.

5. Liability

5.1 The Licensee acknowledges that the Software is not a substitute for accounting or legal advice in relation to superannuation or investment reporting.

5.2 The Licensors shall not be responsible for any unauthorised access to, or alteration of, the Licensee’s transmission or data, any material, information or data sent or received by the Licensee, regardless of whether the data is actually received by the Licensors or any transaction entered into by the Licensee or the Licensee’s failure to abide by this Agreement.

5.3 Notwithstanding any provision contained in this Agreement the Licensors shall not be liable to the extent that performance of any terms or provisions of this Agreement is delayed or prevented by revolution or other civil disorders; wars; acts or enemies; strikes; any act of terrorism; lack of available resources from persons other than parties to this Agreement; labour disputes; electrical equipment or availability failure; fires; floods; act of God; or federal, state or municipal action, statute, ordinance or regulation.

5.4 Except as set out herein all implied conditions, warranties and rights are excluded from this Agreement. Where laws imply conditions or warranties or give other rights in respect of this Agreement, the Licensor’s liability for any breach of such a condition, warranty or right will (but only to the extent permitted by law) be limited:

(a) in the case of goods supplied, to the replacement or repair of the goods or the supply of equivalent goods, the payment of the cost of repairing or replacing the goods or of acquiring equivalent goods;

(b) in the case of services supplied, to the supplying of the services again or the payment of the reasonable cost of having the services supplied again

5.5 To the extent not prohibited by law, in no event shall the Licensor’s aggregate liability exceed the amount actually paid by the Licensee in the thirty (30) day period immediately preceding the event giving rise to the applicable claim.

5.6 The Licensee agrees to defend and hold the Licensors (and its parents, subsidiaries, affiliates, officers, directors, shareholders, employees, attorneys, and agents) harmless from and against any and all claims, demands, actions, proceedings, costs (including reasonable legal fees), damages, losses, liabilities, and expenses (including solicitor fees and costs) arising out of or in connection with the Licensee’s misuse of the Software, violation of any law or third party rights, or breach of this Agreement.

5.7 The Licensors shall cooperate as fully as reasonably required in the defence or any claim made against the Licensee.

5.8 The Licensors do not warrant that the files, information, services or contents provided by the Licensors will be accurate, error free or suitable for any particular purpose. Under no circumstances shall the Licensors be liable for any loss, damages or injury (including without limitation any loss of profits in direct consequential or incidental loss, damages or injury) arising from the use of the Software or the information obtained from it.

5.9 The Licensee acknowledges: (i) that the Licensors will source third party data from reputable information providers (such as Australian Securities Exchange); (ii) the Licensors do not warrant the accuracy or completeness of the third party data: (iii) that the Licensors are not liable for errors, omissions or changes without notice to components of the third party data.

6. Dispute Resolution

6.1 A party must not start court proceedings (except proceedings seeking interlocutory relief) unless it has complied with this clause.

6.2 A party claiming any dispute, difference of opinion or material question arising out of or in connection with this Agreement has arisen (a Dispute) must give the other party notice of the details of the Dispute (aDispute Notice)

6.3 The parties must attempt to resolve any Dispute by negotiations using the following escalation procedure:

(a) When a Dispute Notice is given, each party’s representative must first attempt to resolve the dispute; and

(b) If they cannot resolve the dispute within five business days after the Dispute Notice is given, each part must refer the Dispute to their Chief Executive Officer who must then attempt to resolve it.

6.4 If the parties cannot resolve the Dispute within ten (10) business days from when the dispute notice is given the parties agree to try and resolve the Dispute by other means such as expert determination, mediation or arbitration.

6.5 If a party breaches the procedures outlined in this clause in relation to a Dispute, the other party need not comply with this clause in relation to the Dispute.

6.6 Each party must continue to perform its obligations in this Agreement, pending the resolution of a Dispute or for ten (10) business days, whichever occurs first.

6.7 The dispute resolution procedure in this clause, does not affect the Licensor’s right to terminate the Agreement in accordance with Clause 7.

6.8 The Licensee and the Licensors must bear their own costs of complying with this clause.

7. Termination

7.1 Either party may terminate this Agreement with 90 days written notice.

7.2 Either party may terminate this Agreement if the other party fails to perform any material obligation under this Agreement (including the obligation to pay amounts due) and does not rectify such failure within 30 days after written notice of such failure.

7.3 Upon termination of this Agreement for any reason, the Licensee must immediately cease using the Software and give the Licensors written confirmation that it has done so.

7.4 The Licensee is expressly prohibited from granting security over its Software license or any Class intellectual property rights to any other party.

7.5 The following obligations survive the termination of this Agreement for any reason:

(a) use and non-disclosure of Confidential Information;

(b) indemnification; and

(c) obligations to make payments of amounts that become due under this Agreement before termination.

8. Confidential Information

8.1 Each Party acknowledges that:

(a) The Confidential Information of the other Party is valuable; and

(b) Disclosure of a Party’s Confidential Information by the other Party in breach of this clause causes damage to the other Party.

8.2 Each Party must:

(a) Keep the confidential information of the other Party confidential; and

(b) Safeguard the other Party’s Confidential Information in the same manner it does its own.

8.3 The Parties may only:

(a) Use Confidential Information for the purposes of this Agreement;

(b) Disclose Confidential Information to its personnel if:

  1. They must know for the purposes of this Agreement (but then only to that extent); and
  2. They are subject to obligations of confidentiality.

8.4 On request by the Party disclosing the Confidential Information (‘Disclosing Party’), the Party receiving the Confidential Information (‘Receiving Party’) must, subject to the record keeping requirements of relevant laws, and the retention by the Licensee of the Software, source code materials and documentation and any derivation, or adaptation of the Software, source code materials and documentation necessary to use the Software during the term of the License:

(a) Promptly return or destroy (at the option of the Disclosing Party) the Confidential Information and any copy of it; and

(b) If required by the Disclosing Party, certify in writing that it has returned or destroyed all the Confidential Information.

8.5 Before any disclosure as required by law the Recipient Party must:

(a) As soon as is practicable notify the Disclosing Party giving full details of the circumstances of the proposed disclosure and of the relevant information proposed to be disclosed;

(b) (to the maximum extent permitted by law) give the Disclosing Party a reasonable opportunity in a court of law (or other appropriate body) to:

  1. Challenge the proposed disclosure;
  2. Challenge the obligation of the Recipient Party to provide the Confidential Information, or to otherwise prevent or restrict that disclosure;
  3. Secure an order or other ruling (for example that the disclosure should only be made on a confidential basis) to protect and preserve the confidentiality of the relevant information;

(c) Ensure that only so much of the Confidential Information that is legally compelled to be disclosed is actually disclosed; and

(d) Take all reasonable steps to preserve the confidentiality of the information being disclosed.

9. Ownership

All intellectual property in the Software, and in all systems and associated literature and manuals, including moral rights, remains the absolute and sole property of the Licensors, and the Licensee acknowledges that the Software is licensed for the specific purposes of this Agreement and does not convey any rights of ownership in or to the Software.

10. Assignment

The rights and obligations of the Licensee under this Agreement are not assignable without the Licensor’s prior written consent which will not be unreasonably withheld, excluding the granting of security as specified in Clause 7.4(d). The Licensors may assign its rights and obligations under this Agreement.

11. Written Form

All agreements which involve any alteration, extension or specification of the provisions of this Agreement and any special assurances and agreements shall only be binding if in writing and signed by both parties.

12. Notices and Changes of Address

All notices and communications to be sent by one party to the other pursuant to or under this Agreement shall be sent to the address shown in this Agreement or to such other address as may be from time to time notified by one party to the other.

13. Privacy

The Licensors will collect information from the Licensee and third parties. The Licensors will handle the Licensee’s private information in accordance with relevant laws. The Licensors privacy policy is available to the Licensee on the Class web site (https://www.class.com.au/privacy).

14. GST

14.1 If GST is payable on a Taxable Supply made under, in reference to or in connection with this Agreement, the party providing the Consideration for that Taxable Supply must also pay the GST amount as additional considerations. This clause does not apply to the extent that the Consideration for the Taxable Supply is expressly stated to be GST inclusive.

14.2 Any reference in the calculation of Consideration or of any indemnity, reimbursement or similar amount to a cost, expense or liability incurred by a party, must exclude the amount of any input tax credit entitlement of that party in relation to the relevant cost, expense and other liability. A party will be assumed to have an entitlement to a full Input Tax Credit unless it demonstrates otherwise prior to the date on which the Consideration must be provided.

14.3 This clause will continue to apply after the expiration or termination of this Agreement.

15. Governing Law

This Agreement and all disputes arising under it shall be governed by the laws of New South Wales, Australia and each party submits to the non exclusive jurisdiction of the courts in that state.

16. Severability

If any part of this Agreement should be declared invalid, void or unenforceable, such part or parts shall be severed from the remainder of the Agreement which will remain in full force and effect. The invalid, void or unenforceable provisions shall be replaced by provisions which correspond to or come as close as possible to the economic or intended purpose of the void provision.

17. Force Majeure

Neither party is responsible for any delay in its performance or its failure to perform due to causes beyond its reasonable control.

18. Waiver

The failure of a party to pursue its rights with respect to a default or breach of this Agreement does not constitute a waiver of the right to enforce its rights with respect to the same or any other breach.

TERMS

The following definitions apply unless the context requires otherwise:

Claim includes actions, causes of action, potential causes of action, suits, legal proceedings, disputes, differences, Rights, duties, Obligations, liabilities, responsibilities, accounts, interests, costs (whether or not subject to court order) and demands.

Confidential information means:

(a) all information and know-how of, or in the possession, custody or power of that party in relation to its business, clients (including information or data concerning members of funds operated or controlled by those clients) systems and systems environments;

(b) all business information and other information identified, or treated, but the party as confidential;

(c) which has already been, or is subsequently, provided to the other party, in the course of their business, commercial or technical discussions, or in any other context, regardless of its media or form, and in the case of the Licensors the Software, source code materials and documentation and any derivation, or adaption of the Software, source code materials and documentation, but excludes information already in the public domain after the date of this Agreement, other than as a result of a breach by the other party of its confidentiality obligations, whether under this Agreement or otherwise.

Fund means a self managed super fund/small APRA fund, unless it is an investment fund/entity on the Software.

Intellectual property rights means all intellectual property rights, including:

(a) Patents, copyright, rights in software layout and design, registered and unregistered designs, trademarks, domain names, business names and any right to have confidential information kept confidential; and

(b) Any application or right to apply for registration of any rights referred to in paragraph (a).

Licence Fee Agreement The Agreement entered into by the Licensors and the Licensee specifically the agreed commercial terms for the provision of the Software.

Licensee means persons other than Class Super who use the Class Super software.

Licensor(s) means CLASS SUPER PTY LTD and CLASS INVESTMENT REPORTER PTY LTD and any related or affiliated entities.

Obligation means any legal, equitable, contractual, statutory or other obligation, commitment, duty, undertaking or liability.

Open in regards to Funds, means having a status recorded on the Software as being other than suspended, pending or cancelled.

Parties for the purposes of this contract refers to the Licensors and Licensee.

Software means the current and future versions of the Class Super and Class Investment Reporter Software, and any future software packages related therein, whether they be “add-ons” or stand-alone software packages.

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