EditShare Support Agreement

Support Agreement

between

EditShare Asia Pacific Pty Ltd ACN 154 348 517 of Unit 7, 6 Vanessa Boulevard Springwood, Brisbane QLD 4127, Australia (“EditShare”, “We” or “Us”)

And

Name of Customer (Company or Individual/Trustee) of (address) (“You” or “Customer”)

1. Support Agreement

(a) Subject to your payment when due of the fees specified in Attachment 1, we will provide:

(i) remote email and phone support of the System as required to effect repair or to bring the System to an operating level standard; and

(ii) Software Updates to the System, for the support Term on the terms of this agreement.

(b) Provision of support or other services other than remote phone support (including on-site support) may be provided at our sole discretion, and may be subject to additional charges for (without limitation) labour, parts, and traveling expenses.

2. Your Obligations

(a) You must:

(i) Submit all support request issues via the EditShare helpdesk with sufficient details and information that we require.

(ii) Provide a technical person on-site to liaise or coordinate any tests, troubleshooting, or diagnostics as directed by EditShare including a support technician.

(iii) Undertake all troubleshooting steps or software patches/upgrades as directed by EditShare support technician.

(iv) Read and understand the working procedures and daily/weekly user maintenance/administration system checks required by Editshare.

(v) Provide an APC smart UPS with the appropriate rating and connectivity for system purchased in order to protect your EditShare system from electrical surge or power fluctuation or outage.

(vi) Permit EditShare representatives, employees, contractors, resellers or agents access to the equipment and premises when required for fulfilment of this agreement.

(vii) Allow access by remote support (i.e.: Simple Help) as required by an EditShare technical services person.

(viii) Provide the EditShare login password (if the client has changed from default) to an EditShare technician immediately on request for remote or on-site support.

(ix) implement your own reasonable internal procedures for backups/archival of crucial project data or media.

(b) You understand and accept that:

(i) Failing to comply with the obligations of this clause, or provide any other assistance or follow any other instructions reasonably requested by us, may prevent or impair our ability to provide support.

(ii) EditShare may, at its sole discretion, suspend provision of support immediately on default of payment or in the event that you fail to comply with your obligations under this agreement until such time as the failure is remedied.

(iii) EditShare is not required to provide support or updates with respect to a system which has been deployed, modified, or otherwise dealt with by you or your employees, contractors, and agents, in a way unauthorised by EditShare or otherwise not contemplated by this or any other agreement regarding the System including, but not limited to:

(A) Failure to comply with your obligations regarding the System under this agreement;

(B) Unauthorised modification of the System;

(C) Failure to maintain the System to the Software Updates required by Editshare ;

(D) Creation of plugins, widgets, scripts, or other software interacting with the System;

(E) Physical damage to any hardware on which the System relies;

(F) Virus, trojan, or other malware;

(G) Unauthorised use of the system by a third party

(H) Loss of data as a result of an act or omission by other than Editshare.

3. Software Updates

(a) EditShare may release an incremental update or patch or Dot Updates and Version Updates (together Software Updates) from time to time.

(b) It is your responsibility to:

(i) determine whether your system is capable of upgrading;

(ii) deploy any Software Updates as and when provided by EditShare.

(c) It is your responsibility to consider the business risks of installing a Software Update at any time and back up all crucial data before installing any Software Update. EditShare must not be held liable for any downtime or loss of data during a Software Update.

(d) EditShare is not responsible for facilitating the migration of data, programs or legacy or existing media through conversion, transcoding, or copying.

(e) If EditShare is required to “stand by” for potential assistance in relation to a Software Update, prior booking must be made at least three

(3) Business Days in advance. EditShare may, at its discretion, charge you for labour as a result of any failure to make a prior booking.

4. Payment and Fees

(a) The fees payable by you are specified in Attachment 1.

(b) You must reimburse EditShare any reasonable expense incurred by EditShare or its employees, contractors and agents with respect to providing you support under this agreement within 14 days of invoice for such reimbursement.

(c) Unless specified otherwise in Attachment 1, all fees are due no less than 14 days prior to commencement or renewal of the Term.

(d) If you fail to pay any amount payable in accordance with this agreement, without limiting any other remedy available to EditShare, EditShare may:

(i) Defer performance of any part of this agreement (including the provision of support) until the sum outstanding is paid; and

(ii) Charge interest on that amount at the rate of 2% per annum above the prime lending rate of the Commonwealth Bank of Australia Ltd until the sum outstanding amount (including interest) is paid.

(e) All sums due to EditShare must be paid in full. You are not entitled to withhold payment of any sum properly due.

(f) EditShare may request security or escrow or that the parties enter into an escrow arrangement for a sum, with such security, insurance or escrow payable to EditShare in the event of your default.

(g) If this agreement renews after the expiry of the initial term, EditShare may vary the fees payable for the subsequent term and will provide you with notice of this variance no less than thirty (30) days prior to renewal. If you do not accept the variance, you must notify EditShare no less than seven (7) days after receipt of the notice, at which time you and EditShare must negotiate in good faith regarding the variance. If the variance cannot be agreed, the agreement shall not renew at the expiry of the then-current term.

5. Taxes

(a) Unless otherwise stated, a payable amount under this agreement does not include sales, use, excise, GST or any other taxes or assessments levied by any government agency.

(b) EditShare is entitled to charge and collect or recover from you any applicable consumption- based, value-added, GST or like tax, if applicable, in the manner and form set out in the relevant law.

6. Force Majeure

(a) If an act of Force Majeure arises, the affected party must give written notice to the other party as soon as reasonably practical of:

(i) the nature of the Force Majeure;

(ii) each obligation the affected party will be delayed in performing and the anticipated duration of the delay;

(iii) each obligation the affected party is prevented or is likely to be prevented from performing under this agreement; and

(iv) the affected party’s plans to work around or minimise the impact of the Force Majeure.

(b) In relation to any delay, each party must cooperate to establish and deliver (to the extent commercially reasonable) a work-around plan to overcome or minimise the effect of the delay.

7. Expiry and Termination

(a) Unless otherwise stated in Attachment 1, this agreement expires at the end of the Support Term, or terminated in writing by a party prior to renewal on 7 days notice.

(b) Either party may terminate this agreement immediately where the other party:

(i) commits a material breach of this agreement incapable of remedy;

(ii) commits a material breach of this agreement capable of remedy and that breach has not been remedied within 30 days of notice of the breach;

(iii) becomes insolvent; or

(iv) is prevented by a Force Majeure from performing that party’s obligations under this agreement for 30 days (unless a waiver or extension of time has been agreed between the parties).

(c) You must notify EditShare of any change of control applicable to you and EditShare may, singularly or in combination:

(i) consent to this agreement continuing;

(ii) consent only to the performance of its obligations as existed at the time of change of control and refuse any subsequent variation to or renewal of this agreement; or

(iii) terminate this agreement.

(d) For the avoidance of doubt, your failure to pay EditShare any fees or reimbursements under this agreement is a material breach of this agreement.

(e) On termination of this agreement:

(i) Each party will invoice and pay any outstanding fees and reimbursements determined by reference to work done until termination on a pro rata basis;

(ii) The parties shall bear their own costs and shall be under no further liability under this agreement;

(iii) The accrued rights and remedies of each party remain unaffected; and

(iv) Each party shall at the other party’s operation, either destroy or return to the other party any material in that party’s possession or control that contains Confidential Information of the other party.

(f) In no event are you entitled to any compensation as a result of termination of this agreement.

8. Indemnity and limitation of liability

(a) You shall indemnify and keep indemnified EditShare and its employees, contractors, and agents against any claim, liability, loss, damage, costs (including legal costs and expenses, including the cost of any settlement, on an indemnity basis) and expenses arising out of or as a consequence of a default or unlawful or negligent act or omission on your part on the part of your employees, contractors, resellers or agents.

(b) Each party’s liability under this agreement is reduced proportionally to the extent that the acts or omissions of the other party contributed directly or indirectly to the loss or to the extent that the loss was caused directly or indirectly by the other party to perform its obligations under this agreement.

(c) To the extent permitted by law, EditShare is not liable for any claim, loss (including consequential loss), compensation, fees, charges or damages (including for negligence) suffered or incurred by you as a result of any act or omission of EditShare under this agreement.

(d) Pursuant to the Competition and Consumer Act (Cth) 2010 or successor, Where a warranty or guarantee is incorporated into this agreement by law, the remedy available to you is limited to:

(i) for goods, the cost of replacing the goods or the minimum mandatory amount (if any) set by that law, whichever is the lesser; and

(ii) for any service, the cost of resupplying the service or the minimum mandatory amount (if any) set by that law, whichever is the lesser.

(e) Notwithstanding the provisions of this clause, nothing in this agreement shall limit the liability of either party for:

(i) personal injury, including death;

(ii) damage to property; or

(iii) infringement of third party intellectual property rights.

9. Confidential Information

(a) Each party agrees to keep confidential and not to disclose any Confidential Information of the other party provided to or obtained by the party other than in the ways and circumstances allowed by this agreement.

(b) The obligation of confidence does not apply to information required to be disclosed by law, or under compulsion of law by a court or government agency or the rules of any relevant stock exchange or regulatory body, as long as:

(i) only the minimum amount of Confidential Information required to satisfy the law or rules is disclose; and

(ii) before disclosing any information, the disclosing party gives a reasonable amount of notice to the other party and takes all reasonable steps to maintain the Confidential Information in confidence.

(c) Each party must:

(i) use the confidential information solely for the purposes of this agreement;

(ii) immediately notify the other party of any actual or suspected breach of confidentiality and unauthorised access to, disclosure or retention of the Confidential Information; and

(iii) on request, return all documents, papers or things disclosing Confidential Information of the requesting party (including any copy, extract, summary or computer data), and erase and destroy any copies of computer data containing Confidential Information in the possession of that party.

(d) Each party may disclose confidential information of the other party:

(i) with consent of the other party; or

(ii) to employees, contractors, resellers or agents of that party as necessary to perform this agreement, so long as the Confidential Information is kept confidential by the third party and is only used for the performance of this agreement.

10. Intellectual Property

(a) Nothing in this agreement affects a party’s intellectual property rights existing prior to the commencement of this agreement.

(b) Ownership and use of intellectual property rights in intellectual property developed under or incidental to this agreement belongs to EditShare unless otherwise agreed by the parties.

(c) You have no right to amend, alter, copy, distribute, make a derivative of or otherwise deal with any intellectual property in a way inconsistent with EditShare’s rights as owner of the intellectual property in that intellectual property under the Copyright Act or any other act conferring rights over intellectual property, unless otherwise agreed by the parties.

(d) You must not alter, remove or obscure any trade mark, copyright symbol, legend or other proprietary mark of EditShare on any material, physical, electronic or otherwise, provided to you.

(e) You grant a license or sublicense to EditShare to use any intellectual property of or licensed by you as reasonably required under this agreement.

11. Privacy

Each party must ensure that any collection, use, disclosure or transfer of personal information complies with all applicable laws, rules and regulations in Australia, including without limitation the Privacy Act 1988 as amended from time to time.

12. Disputes

(a) In the event of a dispute arising, the parties must establish a committee (Dispute Committee) consisting of:

(i) senior representatives from each party (each of whom must have the authority to settle such dispute); and

(ii) if required, any approved sub-contractors.

(b) A party may raise a dispute by giving written notice to the other party of the reasons for the dispute and requesting a Dispute Committee be convened.

(c) The Dispute Committee must be established within five (5) Business Days of the date of the dispute arising.

(d) The Dispute Committee must meet (in person, or by electronic means if agreed by the parties) and negotiate in good faith with the object of determining the dispute

(e) Determination of a dispute must be in writing and executed by both parties.

(f) Upon determination of a dispute, each party agrees to be bound by the determination.

(g) Each party must pay that party’s own costs of determination of a dispute unless otherwise agreed in the written and executed determination of the dispute.

(h) If the dispute is not settled by agreement within ten (10) Business Days after the date of the notice, either party may refer in writing the dispute to mediation.

(i) If the parties are unable to agree on a mediator within five (5) Business Days of the date of referral, either party may appoint a mediator nominated by the Australian Commercial Disputes Centre.

(j) Mediation hearings must be held in Brisbane, Queensland, Australia unless agreed otherwise by the parties in writing.

(k) Each party may be legally represented at the mediation.

(l) Each party agrees to be bound by the mediator’s decision.

(m) Each party must pay that party’s own costs of mediation unless otherwise agreed in mediation.

(n) Despite this clause, a party may commence proceedings at any time in relation to a dispute, including, without limitation, one which is the subject to mediation under this clause.

13. General

(a) The following clauses survive termination of this agreement:

(i) 3(d), 4, 5, 6, 7(f), 8, 9, 10, 11, 12, 13, 14 and 15; and

(ii) any other clause or term of this agreement that explicitly states or is reasonably or necessarily read by both parties as surviving termination of this agreement.

(b) Any provision in this agreement which binds more than one person binds all of those persons jointly and each of them severally.

(c) Each obligation imposed on a party by this agreement in favour of another is a separate obligation.

(d) A party, at that party’s own expense and within a reasonable time of being requested by another party to do so, must do all things and execute all documents that are reasonably necessary to give full effect to this agreement.

(e) Where anything depends on the consent or approval of a party then, unless this agreement provides otherwise, that consent or approval may be given conditionally or unconditionally or withheld, in the reasonable discretion of that party.

(f) A notice, consent, approval, request, agreement or demand in connection with this agreement:

(i) must be in writing, legible and in English;

(ii) must be signed by the party giving the notice or that party’s authorised representative, officer, attorney or solicitor;

(iii) must be delivered to the address specified in Attachment 1 for that party;

(iv) is taken to be received:

(A) if hand delivered, on delivery;

(B) if posted in Australia; on the third Business Day after posting;

(C) if posted outside Australia; on the seventh Business Day after posting; or

(D) if sent by facsimile, when the sender’s fax machine produces a report that the facsimile was sent in full to the addressee, but if the delivery or receipt is on a day which is not a Business Day or is after 4.00pm (addressee’s time), the notice is deemed to have been received at 9.00am on the next Business Day; and

(v) takes effect on the date the notice is taken to be received unless a later date is specified in the notice.

(g) You may not transfer, assign, license, or subcontract any of your rights, obligations, benefit or interest under this agreement without EditShare’s prior consent.

(h) EditShare may sub-contract for the performance of an obligation under this agreement.

(i) EditShare may engage individuals on a sub-contractor consultancy basis, whether or not operating under a corporate structure, to assist in the provision of this agreement.

(j) A party must not make any public statement about this agreement unless the party making the statement has first obtained the consent of the other party.

(k) If any provision of this agreement offends any law applicable to this agreement and is as a consequence illegal, invalid or otherwise unenforceable then:

(i) where the offending provision can be read down so as to give the provision a valid and enforceable operation of a partial nature; the provision must be read down to the minimum extent necessary to achieve that result; and

(ii) in any other case the offending provision must be severed from this agreement, in which event the remaining provisions of this agreement operate as if the severed provision had not been included.

(l) Each party must pay its own legal costs of and incidental to the preparation and completion of this agreement.

(m) Unless this agreement provides otherwise, the parties are independent and nothing in this agreement may be construed as creating a relationship between the parties or their employees, contractors, resellers or agents in the nature of:

(i) partnership;

(ii) principle and agent;

(iii) employer and employee;

(iv) trustee and beneficiary;

(v) joint venturers; or

(vi) any other legal relationship outside as provided or anticipated by this agreement, and neither party will represent to the contrary, either expressly, implicitly, by appearance or otherwise.

(n) A failure, delay, relaxation or indulgency by a party in exercising any power or right conferred on the party does not operate as a waiver of the power or right.

(o) A single or partial exercise of a power or right does not preclude further exercise of the power or right or the exercise of any other power or right.

(p) A waiver of a breach does not operate as a waiver of any other breach.

(q) Any act or omission done in the belief that the performance of the act or omission was an obligation where the act or omission was not in fact an obligation does not oblige the acting or omitting party to repeat the act or omission

(r) A term or condition of, or act done in connection with, this agreement, does not operate as a merger of any of the rights or remedies of the parties under this agreement and those rights and remedies remain unchanged.

(s) This agreement, including all schedules, annexures and other attachments however named, constitutes the entire understanding between the parties concerning the subject matter of this agreement and supersedes all prior communications between the parties. Each party acknowledges that, except as expressly stated in this agreement, that party has not relied on any representation, warranty or undertaking of any kind made by or on behalf of the other party in relation to the subject matter of this agreement.

(t) This agreement is governed by and must be construed in accordance with the laws in force in the State of Queensland, Australia.

(u) The parties submit to the exclusive jurisdiction of the courts in the State of Queensland and Commonwealth of Australia in respect of all matters arising out of or in relation to this agreement and the performance or subject matter of this agreement.

14. Interpretation

(a) The singular includes the plural, and the converse also applies.

(b) A gender includes all genders.

(c) If a word or phrase is defined, its other grammatical forms have a corresponding meaning.

(d) A reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity.

(e) A reference to a clause, schedule, attachment or other annexure is a reference to a clause of, or schedule, attachment or other annexure to, this agreement.

(f) A reference to an agreement or document is to the agreement or document as amended, supplemented, novated or replaced, except to the extent prohibited by this agreement or that other agreement or document, and includes the recitals, schedules, attachments and other annexures to that agreement or document.

(g) A reference to writing includes any method of representing or reproducing words, figures, drawings or symbols in a visible and tangible form but excludes a communication by electronic mail.

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

(i) 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.

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

(k) A reference to dollars or $ is to Australian currency.

(l) A reference to a right or obligation of any two or more people comprising a single party confers that right or imposes that obligation, as the case may be, on each of them severally and each two or more of them jointly. A reference to that party is a reference to each of those people separately (so that, for example, a representation or warranty by that party is given by each of them separately).

(m) Mentioning anything after includes, including, for example, or similar expressions, does not limit what else might be included.

(n) Nothing in this agreement is to be interpreted against a party solely on the ground that the party put forward this agreement or a part of the agreement.

(o) A reference to an amount for which a person is contingently liable includes an amount that that person may become actually or contingently liable to pay if a contingency occurs, whether or not that liability actually arises.

(p) A month means a calendar month.

(q) A reference to year is a reference to each successive period of 12 months commencing on the date specified.

(r) A reference to good faith means only that the relevant activity must be performed genuinely and honestly and, if no time is specified, for a reasonable period in the circumstances.

(s) If a day on or which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day.

(t) Headings are for convenience only and do not affect interpretation.

15. Definitions

(a) Business Day means any day that is not a Saturday, Sunday or public holiday in Brisbane, Australia.

(b) Confidential Information means all information relating to a party or their respective recipients or businesses which is disclosed to, acquired by or otherwise comes to the knowledge of the other party, or the other party’s employees, contractors, resellers or agents or a related entity in connection with this agreement, whether the information is in oral, visual or written form or is recorded in any other medium, in all cases which is either marked or expressly denoted by the first-mentioned party to be confidential or which a reasonable person would, taking into account the nature of the information and the circumstances of its disclosure, consider confidential.

(c) Dot Update means an incremental update or patch to the System.

(d) Force Majeure means an extraordinary and unforeseeable event beyond the reasonable expectation of this agreement or control of any party to this agreement including, but not limited to:

(i) act of God, earthquake, lightning, cyclone, fire, explosion, flood, landslide, lightning, storm, tempest, drought or meteor;

(ii) war (declared or undeclared), invasion, act of a foreign enemy, hostilities between nations, civil insurrection or militarily usurped power;

(iii) act of public enemy, sabotage, malicious damage, terrorism or civil unrest;

(iv) confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the authority of any government or government authority; and

(v) strikes, blockades, lock out or other industrial disputes.

(e) System means the system set out in Attachment 1

(f) Term means the term set out in the Attachment 1

(g) Version Upgrade means a significant upgrade to the System with the effect of making a new version of the System.

Executed as an Agreement

EXECUTED for and behalf of EditShare Asia Pacific Pty Ltd ACN 154 348 517 by its authorised representative, in the presence of:

 

Authorised Representative

 

Print Name

 

Witness

 

Print Name

 

Date EXECUTED for and behalf of

ACN

by its authorised representative, in the presence of:

 

Authorised Representative

 

Print Name

 

Witness

 

Print Name

 

Date