LANDGATE LAND INFORMATION VALUE ADDED RESELLER LICENCE AGREEMENT

LANDGATE LAND INFORMATION VALUE ADDED RESELLER LICENCE AGREEMENT VERSION: 250112 AGREEMENT NUMBER:

Between WESTERN AUSTRALIAN LAND INFORMATION AUTHORITY (“LANDGATE”) and NAME VALUE –ADDED RESELLER (“VAR”)

© Western Australian Land Information Authority 2012 ABN: 86 574 793 858

TABLE OF CONTENTS

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

BACKGROUND............................................................................................... 3 AGREED TERMS ............................................................................................ 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36

Definitions ....................................................................................................... 3 Interpretation .................................................................................................. 7 Grant of Licence ............................................................................................. 8 Intellectual Property Rights ........................................................................... 8 VAR’s Obligations .......................................................................................... 8 Risk................................................................................................................ 10 Payments and the GST................................................................................. 10 Accounts, Register and Audits .................................................................... 11 Bank Guarantee ............................................................................................ 12 Alteration of Nature and Content of the Land Information Products ....... 12 Land Information Product Updates ............................................................. 12 VAR’s System Requirements and Maintenance ......................................... 12 Out of Scope Matters.................................................................................... 13 Security ......................................................................................................... 13 Storage of Land Information Products........................................................ 14 Business Continuity ..................................................................................... 15 Confidentiality............................................................................................... 15 Privacy .......................................................................................................... 16 Suppression of Information ......................................................................... 16 Publicity ........................................................................................................ 17 Disclaimers and Release .............................................................................. 17 Limitation of Liability.................................................................................... 18 Indemnity and Responsibility ...................................................................... 18 Insurance ...................................................................................................... 19 Default and Termination ............................................................................... 20 Obligations when Agreement Ends ............................................................. 21 Further Term or Holding Over Period.......................................................... 21 Variation ........................................................................................................ 22 Force Majeure ............................................................................................... 22 Conflict of Interest ........................................................................................ 22 No Bribe, Inducement or Offer of Employment .......................................... 22 Use of Lobbyists........................................................................................... 23 Governing Law, Parties’ Rights and Remedies .......................................... 23 Assignment and Sub-Licensing .................................................................. 24 Notices .......................................................................................................... 25 Dispute Resolution ....................................................................................... 25

SCHEDULE ................................................................................................... 26 SIGNING PAGE............................................................................................ 30 CONFIDENTIALITY DEED ............................................................................ 32

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

This agreement (“Agreement”) is made on the date shown in Item 1 of the Schedule, between the Parties, namely Landgate and the VAR, as specified in Item 2 of the Schedule.

BACKGROUND A

Landgate has developed the Land Information Products and is the owner of the Intellectual Property in those Land Information Products.

B

The VAR has responded to Landgate’s expression of interest to become a valueadded reseller of Land Information Products and the VAR has successfully met Landgate’s Qualitative Criteria for appointment as a value-added reseller

C

Landgate has accepted the VAR’s offer to become a value-added reseller of Land Information Products subject to Landgate and the VAR executing this Agreement.

AGREED TERMS 1

Definitions

The following words and expressions are capitalised in this Agreement and have the meanings assigned to them as shown below, except where the context implies otherwise: Accounts means the books, records and financial accounts of the VAR, as further detailed in clause 8. Agreement means this document, the Landgate Land Information Value-Added Reseller Licence Agreement which includes any Schedule, Annexure or other document incorporated by reference into this document. Annual Licence Charge means the charge specified in Item 15 of the Schedule which is payable to Landgate for each of the Land Information Products it licenses to the VAR, either: in full on the Commencement Date and each anniversary of that date, during the Term; or otherwise as approved by Landgate. Annual Royalty Cap means the total amount payable annually by the VAR, as specified in Item 16 of the Schedule, for the unlimited use of all Land Records in the Land Information Products, including the VAR’s Internal Use. The Annual Royalty Cap is only payable after the Transitional Royalty Cap has ceased to apply. Approved Purpose means the purpose specified in Item 9 of the Schedule. Bank Guarantee means the amount specified in Item 19 of the Schedule, which must be provided by the VAR to Landgate in accordance with clause 9 of this Agreement. Business Day means any day other than a Saturday, Sunday or public holiday in Western Australia. Commencement Date means the date this Agreement takes effect, as specified in Item 4 of the Schedule.

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

Confidential Information means information that: (a) is by its nature confidential; (b) is designated in writing by Landgate as confidential; (c) the VAR knows or reasonably ought to know is confidential, and includes: (i) Information comprised in or relating to any Intellectual Property Rights of Landgate or the State of Western Australia; (ii) Landgate information to which the VAR has access, other than information referred to in (i), which has actual or potential commercial value to Landgate; (iii) Information relating to internal management, computing operations, personnel, policies, strategies, practices and procedures of Landgate and/or the Government of the State of Western Australia and any information in the VAR’s possession relating to the Western Australian Public Sector; and (iv) Information in the VAR's possession relating to Landgate's customers, clients or suppliers; (v) Any information shared between the Parties to this Agreement, pursuant to this Agreement, including the final terms of this Agreement; (vi) The contents of any documentation supplied by Landgate to the VAR, except for the Land Information Products. Consultant means any person (including employees, servants and agents of that person) engaged by the VAR for a specific project within the VAR’s own business, which requires that person to access or use any Land Information Product. CPI means the CPI All Groups Index Numbers for Perth the subject of Catalogue No. 6401.0 provided by the Australian Bureau of Statistics or if the basis upon which it is determined is substantially altered, then such basis as Landgate may reasonably determine to be as near to the CPI previously referred to as possible. Date of Agreement means the date on which the last Party executes this Agreement. Direct Marketing means any activity which makes it possible to offer goods or services or to transmit other messages to a person, organisation or segment of the population by post, telephone or other direct means (electronic or otherwise) aimed at informing or soliciting a response from the person, organisation or segment of the population as well as any service ancillary to the same. End User means the VAR’s customers, members or subscribers, who have entered into an agreement in accordance with sub-clauses 5.4 and 5.5 (Related Contracts) for the Value Added Products, or the final recipient and user of any Value Added Products. Where appropriate, this term includes the employees, servants and agents of those End Users, who have access to such Value Added Products. End Users may use Value Added Products for Internal Use only. Further Term means any period specified in Item 18 of the Schedule, or any period of extension of the Agreement granted by Landgate under clause 27 of this Agreement. GST means the goods and services tax payable under the GST Act. GST Act means the New Tax System (Goods and Services Tax) Act 1999 (Cth). Holding Over Period means the time period after the Termination Date of this Agreement, during which the Parties extend the operation of this Agreement, in accordance with subclause 27.3 of this Agreement.

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

Information Suppression Application means an application made to Landgate by a person for suppression of specified information about that person or another person, from all Landgate name indices, data extracts and other Land Information Products, for reasons of personal safety and security. Information Suppression Notice means a written notice given to the VAR by Landgate under clause 19 of the Agreement following the granting of an Information Suppression Application by Landgate, which requires the VAR to delete or amend specified information from any Land Information Products. Intellectual Property Rights means all rights in and to any copyright, trademark, trading name, design, patent, know how (trade secrets) and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic field and any application or right to apply for registration of any of these rights and any right to protect or enforce any of these rights, as further specified in clause 4. Internal Use means use for a person’s internal business or personal purposes. Land Information Product means a collection or compilation of particular Land Records for a specific purpose (eg Sales Evidence or Tenure data). Land Information Products are: -

only those specified in Item 6 of the Schedule; in the form stated in Item 7 of the Schedule; with the Metadata specifications set out in Item 8 of the Schedule; and updated from time to time by Land Information Product Updates, in accordance with clause 11.

Land Information Product Updates are updates to Land Records which improve their accuracy and completeness. These updates will be made available by Landgate to the VARS, in accordance with clause 11 and at the time intervals specified in Item 12 of the Schedule. Land Record means any information (usually identified according to certain field descriptors) about a particular property or land-holding, extracted from Landgate's databases. Metadata means the specification of the Land Information Product which may consist of a number of elements describing the content, quality, currency, collection methods, accuracy of source data sets, processing history, archival procedures, projection specifications, scale, data dictionary and integration and analysis techniques. Notice means a written note (or email), given and effective in accordance with clause 35 of this Agreement. Party means a person who has executed this Agreement, as further defined in clause 2. The details of the Parties are specified in Item 2 of the Schedule. Privacy Legislation means the Privacy Act 1988 (Cth) and any State privacy legislation which may be enacted during the Term. Qualitative Criteria means Landgate's requirements for VARs, as detailed in the package distributed in relation to Landgate's 2008 advertisement for “Expression of Interest Land Information – Value Added Reseller”. Register means the Register of Access, Transfers and Sales or a record kept by the VAR specifying when any Land Information Product or Value Added Product has been accessed, transferred, supplied, licensed or sold. The Register must be in the form stated in Item 14 of the Schedule.

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

Review Date means the annual date(s) on which the payments made under this Agreement are reviewed, as specified in Item 17 of the Schedule or as further detailed in sub-clause 7.5. Royalty means the payment made by the VAR to Landgate in accordance with Item 16 of the Schedule. Security Level means the security measures required of the VAR to protect the integrity of Land Information Products or Value Added Products, as detailed in sub-clause 14.5. Site means the VAR’s business premises or the locations specified in Item 10 of the Schedule. Software means the computer program, code, algorithm (if any) incorporated into or provided with the Land Information Product, which is necessary to use that Land Information Product in accordance with this Agreement. Special Conditions means the conditions of this agreement set out in Item 21 of the Schedule Sub-Licensee means a sub-contractor or similar who has entered into a contract with the VAR to acquire all or part of the VAR’s licence to use the Land Information Products (as specified in clause 3 of this Agreement), for the purpose of developing other Value-Added Products for End Users and third parties. Where appropriate, the Sub-Licensee includes its officers, employees and agents who have access to the Land Information Products. Suppressed Information means Land Record information that is the subject of an Information Suppression Notice, as further detailed in clause 19 of this Agreement. Term means the period of time beginning on the Commencement Date and ending on the Termination Date and, where the context requires, any Further Term or Holding Over Period granted under clause 27. Termination Date means: (a) the date or latest date stated in Item 5 of the Schedule; or (b) if the Agreement is terminated earlier in accordance with clause 25, that date; or (c) if the parties enter into a Further Term or Holding Over Period, the expiry date of the same. Transitional Royalty Cap means the total amount of Royalties payable by the VAR during the first 5 months of the Term only, as specified in Item 16 of the Schedule, for the VAR’s unlimited use of all Land Records in the Land Information Products, including the VAR’s Internal Use. The Transitional Royalty Cap is only available to VAR’s who elect to pay Royalties by means of the Annual Royalty Cap. Unique Hit means each time that an End User accesses, uses, receives, views or downloads a Land Record for the first time in any twelve month period during the Term. Value Added Product means any use made of the Land Information Products by the VAR, including: (a) any data output, compilation, creation, manufacture, service or assistance, which incorporates an Land Information Product, in whole or in part; and (b) the development of a new product or computer program that enhances, adds value, adds to, manipulates, personalises, interprets or filters an Land Information Product, or parts thereof.

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

VAR or Value Added Reseller means the Party to this Agreement who develops a Value Added Product for the purpose of display, distribution, sale, licence, hire, let or trade of the Value Added Product to an End User. VAR’s System means the computer system comprising the operating, application and database systems of the VAR as specified in Item 11 of the Schedule.

2

Interpretation In this Agreement, unless the contrary intention appears: (a) Words importing the singular include the plural and vice versa and words denoting a given gender include all other genders; (b) Reference to a person or third party includes an individual, the estate of an individual, a partnership, a body politic, a corporation and a statutory or other authority or association (incorporated or unincorporated); (c) References to any person or to any Party to this Agreement will include that person’s or Party’s personal representatives, executors, administrators, predecessors, successors and permitted assigns; (d) Reference to a Party includes that Party’s board members, officers, employees, sub-contractors, agents and invitees; (e) Where any word or phrase is given a defined meaning, any other part of speech or grammatical form of such word or phrase has a corresponding meaning; (f) Headings and bold print are for convenience only and do not affect interpretation; (g) A reference to a statute, ordinance, code or other law includes regulations, by-laws, rules and other statutory instruments for the time being in force and consolidations, amendments, re-enactments or replacements of any of them; (h) A reference to any agreement or document is a reference to that agreement or document as amended, supplemented or replaced from time to time; (i) Where a Party to this Agreement is more than one person, they are jointly and severally liable under the terms of this Agreement; (j) If a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings; (k) References to time are to Western Standard Time or Western Daylight Time, in Perth, Western Australia; (l) Where time is to be reckoned from a day or event, that day or the day of that event is to be included; (m) References to currency are to Australian currency unless otherwise stated; (n) When the day or last day for doing an act is not a Business Day in the place where that act is to be done, then the day or last day for doing the act will be the directly preceding Business Day in the place where that act is to be done; (o) Any Schedule, Annexure or document entered into pursuant to this Agreement whether executed at the time of entering into this Agreement or later during the Term of this Agreement, is incorporated into and forms part of this Agreement; and (p) No decision, exercise of discretion, judgment or opinion or approval of any matter mentioned in this Agreement or arising from it, will be deemed to have been made by Landgate, unless in writing and at its sole discretion, except where otherwise expressly provided in this Agreement.

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

3

Grant of Licence

3.1

Landgate grants to the VAR a non-exclusive and non-transferable licence to use, value-add and on-sell the Land Information Products specified in Item 6 of the Schedule, for the Approved Purpose at the Site for the Term, in accordance with the terms and Special Conditions of this Agreement.

3.2

The VAR must provide a certificate of readiness within 90 days of the date of this Agreement, to certify that it is operational as a VAR and in a position to fulfill all of its obligations and responsibilities under this Agreement.

4

Intellectual Property Rights

4.1

The VAR only acquires the right to use the Land Information Products in accordance with this Agreement, during the Term. The VAR does not acquire any rights of ownership in the Land Information Products.

4.2

Intellectual Property Rights over and for the Land Information Products will at all times remain with Landgate unless otherwise identified (eg. third party computer program copyright owner). Landgate retains the right to distribute, market and sell the Land Information Products to any other person on such terms and conditions as Landgate deems fit.

4.3

To the extent permitted by law, the VAR will promptly report to Landgate any known infringement by any End User, Sub-Licensee or third party, of Landgate’s Intellectual Property Rights, over or for the Land Information Products.

4.4

The VAR must ensure that: (a) all reproductions and adaptations of the Land Information Products, however altered, reformatted or redisplayed, display the following proprietary notice: “© Western Australian Land Information Authority (201__) trading as Landgate.” (b)

all Value Added Products created and distributed by the VAR display the following notice:

“Based on information provided by and with the permission of the Western Australian Land Information Authority (201__), trading as Landgate.”

5

VAR’s Obligations

5.1

The VAR must provide Landgate with access to any Value Added Product or service utilising the Land Information Products free of charge, for the purpose of ensuring compliance by the VAR with this Agreement. This includes the access account referred to in sub-clause 8.3.

5.2

The VAR must, at its own cost, comply with all regulations, restrictions and conditions imposed by any legislation for the use of, access to, storage of or dealing with the Land Information Products or Value Added Products. This includes, but is not limited to, the requirements of the Privacy Legislation.

5.3

The VAR must not permit itself or any other person to, distribute, sell, transmit, licence, hire, let, trade or expose for sale any Land Information Product or Value Added Product, other than as expressly provided for in this Agreement.

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

5.4

The VAR must: (a) Ensure that no change is made to the land coordinates or spatial integrity or referencing, of any Land Information Product; and (b) Not allow any End User, Sub-Licensee, Consultant or third party, access to any Land Information Product or Value Added Product, unless they have entered into an appropriate agreement (“Related Contract”) , the terms and conditions of which have first been approved in writing by Landgate. [Note, the Related Contract may take the form of a shrink-wrap agreement] (c) Ensure any variation in the terms and conditions approved pursuant to the preceding sub-clause are also approved in writing by Landgate (except for price changes or any other Related Contract clauses that may be excluded in writing by Landgate).

5.5

As a minimum, any Related Contract must provide that End Users, Consultants and third parties: (a) (b) (c) (d)

(e) (f)

(g) (h)

5.6

Will not change the land coordinates or spatial integrity or referencing, of any Land Information Product; and Will not use the Value Added Product other than for their own Internal Use. Will not reproduce the Value Added Product or supply the Value Added Product to any other party; Will comply with any restriction imposed by Landgate on searching of the Value Added Product for reasons relating to the Privacy Legislation or an Information Suppression Notice; Will not display, distribute, sell, license, hire, let, trade or expose for sale the Value Added Product; Agree to be bound by and comply with the VAR’s obligations under this Agreement in relation to the ownership of, access to, use of and dealing with the Value Added Product; and Will comply with the VAR’s security obligations contained in this Agreement; Will on receipt of a written notice given by the VAR in relation to clause 19 of this Agreement, forthwith delete or amend the Suppressed Information from all Value Added Products in their possession or under their control.

The VAR must: (a) Comply throughout the Term with all warranties and representations made in its response to Landgate’s 2008 request for “Expressions of Interest Land Information – Value Added Reseller (VAR)"; (b) Always act ethically in connection with this Agreement and in accordance with good corporate governance practices; (c) Act in good faith at all times towards Landgate and provide assistance and co-operation as practicable, on request by Landgate; (d) Not demean, defame or otherwise denigrate Landgate; (e) Comply with all State and Commonwealth laws relevant to this Agreement; (f) Use its best endeavours to ensure that none of its employees, Consultants or clients, cause the VAR to breach this Agreement; (g) Notify Landgate if any of the details in Items 2 and 20 of the Schedule changes; (h) Ensure that any notices relating to Intellectual Property Rights appearing in or on the Value-Added Products or literature relating to them, are not altered or removed.

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

6

Risk

6.1

Risk (but not title) in the Land Information Products delivered to the VAR and in the media or software on which it is delivered and stored, passes to the VAR on delivery.

6.2

The VAR acknowledges and agrees that: (a) It uses the Land Information Products at its own risk; and (b) Subject to clause 21, neither Landgate nor its board members, officers, employees or agents, will be liable for any loss or damage occasioned to the VAR by provision of the Land Information Products under this Agreement, or use of it by the VAR, Consultants, End Users, Sub-Licensees or third parties; and (c) Landgate is released from any claim for any such loss or damage.

7

Payments and the GST

7.1

The VAR agrees to pay Landgate, in the amounts and manners specified in Items 15 and 16 of the Schedule, the following: (a) The Annual Licence Charge; and (b) Either: (i) the Royalties for each Unique Hit by the VAR, or (ii) the Transitional Royalty Cap and subsequently, the Annual Royalty Cap; and (c) The Royalties for each Unique Hit by any of the VAR’s Sub-Licensees.

7.2

The VAR must notify Landgate by the Commencement Date, of which of the two options specified in sub-clause 7.1(b) the VAR elects as the basis for paying its Royalties. Otherwise, Royalties will be payable by the VAR, for each of its Unique Hits and those of any of its Sub-Licensees, in accordance with sub-clauses 7.1(b)(i) and (c).

7.3

All taxes, duties, and royalties and all charges arising out of or incidental to this Agreement will be the responsibility of and payable by the VAR.

7.4

All payments to be made by the VAR (including but not limited to the Annual Licence Charge) are calculated without regard to GST. The VAR must pay Landgate (at the same time and in the same manner as the VAR is obliged to pay for the supply) the amount of any GST which Landgate pays or is liable to pay on a supply (as that term is defined in the GST Act), in addition to the consideration payable for that supply. Where GST is payable, Landgate will provide to the VAR, if required by the VAR, a Tax Invoice in the format and form required by the GST Act.

7.5

Price Increases The Annual Licence Charge and Royalties payable under this Agreement will be reviewed prior to each Review Date, to determine the new amounts payable for the same from the next Review Date. Those new amounts will be payable from the relevant Review Date until the day before the next Review Date, if there is one, or until the expiration of the Term, as set out below: (a) Landgate will, without time being of the essence, give to the VAR a notice specifying any new Annual Licence Charge or Royalty; (b) The Annual Licence Charge payable following a Review Date: (i) will not be less than the Annual Licence Charge payable immediately prior to the Review Date; and (ii) will be increased by a factor equal to the percentage increase in the annual CPI in the 12 month period preceding the Review Date, or in the case of the first Review Date the 12 month period preceding the Commencement Date;

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

(c)

The Royalties payable following a Review Date will be increased by: (i) a factor equal to the percentage increase in the annual CPI in the 12 month period preceding the Review Date, or in the case of the first Review Date the 12 month period preceding the Commencement Date; and (ii) such other amount as Landgate can reasonably justify in seeking to achieve a fair return on government assets pursuant to the Land Information Authority Act 2006.

8

Accounts, Register and Audits

8.1

For the purpose of calculating and confirming any payments due to Landgate, the VAR must: (a) Observe, perform and comply with the reasonable requirements of Landgate and the accounting and security standards and requirements of the Commissioner of Taxation; (b) Keep full, proper and up-to-date books of account and records (“Accounts”) showing clearly all inquiries, transactions and proceedings relating to this Agreement; and (c) Retain such Accounts for a period of 5 years after the Termination Date; (d) Allow any person authorised by Landgate to have access to those Accounts and take copies of them as they require; (e) Supply Landgate with those Accounts and related information arising from this Agreement, on request and in the form nominated by Landgate, for a period of 5 years after the Termination Date (f) Keep a Register from the Commencement Date, with the details specified in Item 14 of the Schedule and: (i) provide the Register to Landgate for inspection within 7 days of every quarterly period during the Term; and (ii) permit Landgate or any person authorised by Landgate to inspect and audit the Register when and as required by Landgate. (g) If an inspection under this clause 8 reveals that the total amount payable to Landgate for any month is a sum greater than the amount paid by the VAR, then the VAR will pay Landgate the difference within 14 days of demand in writing by Landgate, which demand will be accompanied by a copy of any accountant's report. (h) If the amount payable to Landgate under the preceding sub-clause exceeds the amount paid by the VAR by 5% or more, then the VAR will also pay the costs and expenses of that inspection.

8.2

Landgate or any person authorised by Landgate may: (a) subject to the provision of 14 days prior written notice, enter the VAR’s premises during Business Hours to verify the use of the Land Information Products and payments by the VAR in accordance with this Agreement, including inspecting any facilities, records, Accounts, hardware and software for such purposes; (b) at any time monitor the VAR’s use of the Land Information Products without notice to the VAR; and (c) subject to the provision of 14 days prior written notice, require the VAR to provide such information notified by Landgate exclusively for the purpose of confirming the VAR’s compliance with this Agreement, including the provisions of clause 9, provision of any Bank Guarantee and payments.

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

8.3

The VAR must set up and maintain an access account, user identification and password, equivalent to the access provided to End Users and Sub-Licensees, to enable Landgate to access Land Information Products and Value-Added Products available online or otherwise, from the VAR. Both Parties will ensure there is no charge or fee payable for the access account, or for any Land Records accessed in relation to it.

8.4

Landgate may use the access account referred to in the preceding sub-clause, to verify the use and delivery of Land Information Products and Value-Added Products and compliance by the VAR, with the terms and conditions of this Agreement.

9

Bank Guarantee

9.1

The VAR must effect a Bank Guarantee before the Commencement Date, in accordance with this clause 9, in the amount specified in Item 19 of the Schedule, derived in accordance with clause 9.2(c).

9.2

The VAR's Bank Guarantee must: (a) be maintained for the Term; and (b) be provided in favour of Landgate from a financial institution approved by Landgate; and (c) guarantee the payment to Landgate of such amount equal to Landgate's estimate of the Royalties payable for all Land Information Products provided under this Agreement for an estimated 60 day period

9.3

Subject to 7 days written notice, Landgate may review the amount secured by the Bank Guarantee in accordance with clause 9.2 (c) and request the VAR to immediately provide a revised Bank Guarantee in accordance with the reviewed amount.

10

Alteration of Nature and Content of the Land Information Products Landgate reserves the right to alter, correct or amend the nature and content of the Land Information Products from time to time and will (subject to any more immediate requirements under clauses 18 and 19), notify the VAR in writing, at least 60 days prior to any alteration or amendment being made. The alteration or amendment will form part of the Land Information Products.

11

Land Information Product Updates

11.1

Landgate will, subject to the provisions of this Agreement, provide the VAR with Land Information Product Updates, in the manner stated in Item 12 of the Schedule, during the Term. The Land Information Product Updates will form part of the Land Information Products, immediately on their provision.

11.2

Landgate will be under no obligation to supply Land Information Product Updates other than as stated in this clause 11.

12

VAR’s System Requirements and Maintenance

12.1

The VAR must: (a) undertake sufficient maintenance of its computer and office systems, to ensure that its levels of service are compliant with this Agreement; (b) undertake necessary improvements to its computer and office systems, in accordance with Landgate’s reasonable requirements.

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

12.2

Landgate will publish the formats required to make use of the Land Information Products.

12.3

Landgate will advise the VAR of any changes to the formats supported by Landgate, with at least 30 days Notice of the same.

12.4

Landgate may withdraw support of obsolete or decommissioned formats, by giving the VAR 30 days Notice.

13

Out of Scope Matters

13.1

The VAR agrees and acknowledges that: (a) Landgate is not required to install the Land Information Products on any equipment or to test whether the Land Information Products are capable of being processed on any equipment; (b) Landgate is not required to provide any training in the use of the Land Information Products, but may do so at its absolute discretion, at a cost which provides a fair commercial return to Landgate, in accordance with section 16 of the Land Administration Act 2006; and (c) Subject to clause 12, full responsibility for obtaining and for the consequence of use of hardware, software, computer programs and any other thing necessary to make use of the Land Information Products, remains with the VAR; (d) Landgate gives no assurance or guarantee of the volume of sales or orders which the VAR may receive or expect to receive, in relation to Land Information Products licensed under this Agreement. The VAR is responsible for making its own assessment of the potential market for the same; (e) Landgate does not represent or warrant to the VAR that: (i) the Land Information Products are error free or virus free; (ii) the supply of the Land Information Products will be uninterrupted; or (iii) the Land Information Products will provide any function not designated in any Land Information Products definition.

14

Security

14.1

The VAR must effect and maintain adequate security measures to ensure that any Land Information Products or Value Added Products are not used or accessed by any End Users, Sub-Licensees or third parties, who are not permitted by this Agreement to use or have access to the same.

14.2

The VAR must ensure that any Land Information Products or Value Added Products are kept in a secure manner to protect its value and prevent any Land Information Product or Value Added Product from being altered or changed without permission, or being released without Landgate's authorisation.

14.3

The VAR may only acquire and/or distribute any Land Information Product or Value Added Product in accordance with the Security Level specified in sub-clause 14.5.

14.4

The relevant Security Level relates to the sensitivity and confidentiality of any Land Information Product or Value Added Product and how the VAR intends to use and/or distribute the same. The Security Level reflects the standard of security required to protect the integrity of any Land Information Product or Value Added Product.

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

14.5

The VAR must: (a) Take all reasonable steps that a prudent operator in a similar situation would take to prevent unauthorised physical access, damage and interference to the Site and Equipment, including but not limited to those set out in Items 10 and 11 of the Schedule; (b) Take all reasonable steps that a prudent operator in a similar situation would take to protect any Land Information Product or Value Added Product against unauthorised access by any person including employees and Consultants or by computer programs including but not limited to viruses; (c) Have formal procedures in place to: (i) manage (eg. grant, revoke and audit) access to any Land Information Products or Value Added Products by the VAR itself, End Users, Sub-Licensees, or any third parties including employees, agents, Consultants or by computer programs; and (ii) authorise and record every access or receipt of Land Records; (iii) store and archive any Land Information Product or Value Added Product and manage the development of a new Value Added Product behind a firewall that prevents unauthorised access of any kind and in particular access via the Internet; (iv) provide protection eg. firewall against intrusion and uncontrolled access, to any Land Information Product or Value Added Product from across the Internet; (v) prevent unauthorised down loading before payment has been secured or terms of payment agreed; and (vi) ensure any Land Information Product or Value Added Product is properly secured from interference when being transferred across the Internet.

14.6

The VAR will ensure that its employees, agents, Consultants, Sub-Licensees, End Users and clients are made aware of and agree to comply with the VAR’s security obligations contained in this Agreement, before providing access to any Land Information Product or Value Added Product.

14.7

The VAR undertakes to only use any Land Information Product or Value Added Product on the Equipment and at the Site specified in Items 10 and 11 of the Schedule.

14.8

Landgate reserves the right to periodically test security of the Site and the VAR’s Equipment to ensure compliance with this clause 14 to Landgate’s reasonable satisfaction.

15

Storage of Land Information Products The VAR may: (a) copy the Land Information Products as it reasonably requires for backup purposes, provided that all copies of the same contain the proprietary notice (specified in clause 4.4) and are secured so as not to be accessed or used by unauthorised persons for any purpose; (b) store on the computer server supporting the VAR’s computer systems, copies of the Land Information Products and Value-Added Products provided for each End User, for a maximum of 30 days after the relevant transaction and for the sole purpose of providing backup to those End Users. Those backup copies (in whatever form or medium they are held) must be destroyed after the 30 day period expires.

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

16

Business Continuity

16.1

Landgate may develop and implement planning and procedures coordinating the responsibilities of the VAR and Landgate in order to minimise service disruption arising from the occurrence of any event which may disrupt or otherwise materially adversely affect the continuity of the Landgate business (“Landgate Business Continuity Plan”).

16.2

The VAR must: (a) Document and implement business continuity planning and procedures that are reasonably satisfactory to Landgate and appropriate to the VAR’s role in reselling Land Information Products, including the appropriate priority of electronic information security programs (“VAR Business Continuity Plan”); (b) Regularly review the VAR Business Continuity Plan to ensure it remains current and relevant to the VAR’s business and relationships with Landgate and any Sub-Licensee; and (c) Provide to Landgate a current version of the VAR Business Continuity Plan, or allow Landgate to review the VAR Business Continuity Plan, on 30 days Notice from Landgate. (d) Comply with any reasonable request from Landgate for the VAR to amend the VAR Business Continuity Plan, to a standard not less than that of Landgate Business Continuity Plan.

17

Confidentiality

17.1

The Parties must not disclose Confidential Information except in the circumstances of clause 17.4.

17.2

Neither Party may use or make available in any form to any third party the other Party’s Confidential Information, unless in accordance with this Agreement.

17.3

A VAR may only provide the Land Information Product to a Consultant if: (a) The Consultant has lodged a Confidentiality Deed (in the form set out in Annexure A) and it has been approved by Landgate; and (b) The Land Information Product is only provided for the purpose of a specific project, for which the Consultant receives no benefit from the use of the Land Information Product, other than the Consultant’s fee paid by the VAR.

17.4

Each Party must hold the other Party’s Confidential Information secure and in confidence, except for such Confidential Information which the first Party can demonstrate: (a) is required to be disclosed according to the requirements of any law, stock exchange, judicial or parliamentary body or government agency; (b) is or has generally become available to the public without breach of this Agreement; (c) was approved for release in writing by the other Party, but only to the extent of and subject to such conditions as may be imposed in such written authorisation; and (d) is required to be disclosed to a Western Australian government Minister, the Western Australian Parliament, or any committee or sub-committee of the Western Australian Parliament (where Landgate is the first Party).

17.5

This clause 17 will survive termination of this Agreement.

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

18

Privacy

18.1

The VAR agrees to: (a) comply with the requirements of the Privacy Legislation, particularly in relation to its handling of personal information, as defined in the same, including the collection, use, disclosure and security of such information, whether or not the VAR is required by law to comply with the Privacy Legislation; (b) comply with any other reasonable direction relating to privacy given by Landgate, including those relating to Landgate’s own privacy policies and procedures; and (c) not do anything which if done by Landgate would be a breach of the Privacy Legislation.

18.2

Landgate, its board members, officers and employees will not be responsible for any actions, claims, cost, proceedings, suits or demands whatsoever arising out of any breach of the Privacy Legislation by the VAR, Sub-Licensees, End Users, Consultants or any other person or body corporate in relation to any Land Information Product or Value Added Product obtained under this Agreement.

18.3

The VAR must not use any Land Information Product or Value Added Product for the purpose of Direct Marketing of goods or services.

18.4

The VAR must not release the Land Information Products or Value Added Products obtained under this Agreement to any third party where that party proposes to use those Land Information Products or Value Added Products for the purpose of Direct Marketing of goods or services.

18.5

The VAR will provide any assistance requested by Landgate in relation to an investigation of an allegation of misuse of any Land Information Product or Value Added Product, or contravention of the Privacy Legislation.

18.6

This clause 18 will survive termination of this Agreement.

19

Suppression of Information

19.1

Landgate may at any time give the VAR an Information Suppression Notice.

19.2

An Information Suppression Notice must be in writing and contain the Land Information Products to be deleted or amended.

19.3

If the VAR is able to search the VAR’s System by a land owner’s name, then within 5 Business Days of receiving an Information Suppression Notice, the VAR must delete or amend the Suppressed Information from any Land Records in the VAR’s possession or under its control, including: (a) Land Records stored for backup purposes; and (b) any Land Records provided by Landgate under this or any previous agreement.

19.4

On receiving an Information Suppression Notice, the VAR must also take all reasonable steps to ensure that End Users, Consultants and Sub-Licensees do not have Land Records containing Suppressed Information in their possession or control.

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

20

Publicity

20.1

The VAR agrees to: (a) Only release publicity statements or any other form of advertisement or promotion that specifically refers to Landgate or Landgate’s Land Information Products where: (i) they have first been approved by Landgate’s authorised delegate in writing (including by email), which approval will not be unreasonably withheld; and (ii) at least 24 hours written notice has been provided to Landgate prior to any such release; and (b) Advise Landgate of any media report in relation to the Land Information Products of which the VAR is aware, at least 24 hours prior to the report being published; (c) Not permit commercial filming or recording in relation to Landgate, without the prior written approval of Landgate’s authorised delegate.

21

Disclaimers and Release

21.1

To the extent permitted by law, Landgate will in no way be liable to the VAR or anyone else for any loss or damage, however caused (including through negligence) which may be directly or indirectly suffered in connection with the use of the Land Information Product. This general disclaimer is not restricted or modified by any of the following specific disclaimers.

21.2

The Land Information Product is provided by Landgate in good faith on an “as is” basis. The Land Information Product is believed to be accurate and current at the date it is supplied. The VAR acknowledges that it must not act on the basis of anything contained in any Land Information Product without first obtaining specific professional advice.

21.3

All Land Information Products have been acquired from data from various sources and therefore are recorded and stored at different levels of reliability. The VAR acknowledges that any Land Information Product may become erroneous over time. The VAR must ensure that Landgate will not be held liable in any way, for any loss, damage or injury suffered by the VAR or by any other person for the use of or reliance on any Land Information Product, or for the existence of any errors in any Land Information Product.

21.4

Notwithstanding anything contained in this Agreement, the VAR must ensure that Landgate will not be held liable for any claim which may arise from the modification, combination, operation or use of any Land Information Product with computer programs or data not provided by Landgate.

21.5

Landgate does not warrant that any Land Information Product will be capable of being processed on any equipment.

21.6

The VAR acknowledges that: (a) Land Information Products have not been prepared to meet the requirements of the VAR or of any other party; and (b) it is therefore the responsibility of the VAR to ensure that any Land Information Product meets its own individual requirements.

21.7

To the extent permitted by law and except where consumer guarantees imposed by Division 1 of Part 3-2 of the Australian Consumer Law are applicable, no warranty, condition, undertaking or term, (whether express or implied), as to the condition, quality, reliability, accuracy or completeness, performance, merchantability or fitness for purpose of any Land Information Product is given or assumed by Landgate.

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

21.8 Pursuant to section 64A of the Australian Consumer Law, this clause 21.8 applies in respect of any of the goods or services supplied under this Agreement which are not of a kind ordinarily acquired for personal, domestic or household use or consumption. To the extent permitted by law, Landgate’s liability for failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the Australian Consumer Law, other than a guarantee under section 51, 52 or 53 of the Australian Consumer Law, is hereby limited to: (a)

(b)

in the case of goods, at Landgate’s option, any one or more of the following: (i) the replacement of the goods or the supply of an equivalent product; (ii) the repair of the goods; (iii) the payment of the cost of replacing the goods or of acquiring an equivalent product; or (iv) the payment of the cost of having the goods repaired; or in the case of services, at the Landgate’s option; (i) the supply of the services again; or (ii) the payment of the cost of having the services supplied again.

. 21.9

This clause 21.9 applies where any act, statute, rule or regulation (other than Division 1 of Part 3-2 of the Australian Consumer Law and regulations made in relation thereto) (“other law”) implies in this Agreement any term, condition, warranty, right or obligation (“implied term”), and the other law avoids or prohibits a provision in a contract excluding or modifying the application of, exercise of or liability under such implied term. To the extent permitted by law, the liability of Landgate for any breach by it of such implied term is limited, at Landgate’s option, to any one or more of the remedies referred to in clauses 21.8(a) or 21.8(b) above.

21.10

If appropriate Landgate will provide and the VAR will place on its website and Value Added products Landgate’s Disclaimer and Copyright Notice.

22

Limitation of Liability

22.1

The VAR agrees that, subject only to clause 21.8, in no circumstances will Landgate be liable for damages, including indirect, special, incidental or consequential damages (including loss of existing or anticipated revenue) in connection with or arising out of the use of any Land Information Product or Software or otherwise in connection with this Agreement, even if Landgate has been advised of the possibility of such damages.

22.2

The VAR agrees that, subject only to clause 21.8, the liability of Landgate for all claims, in aggregate, which it may have against Landgate relevant to any Land Information Product (whether for breach of this Agreement, for negligence or otherwise), will be limited to the amount paid or payable by the VAR to Landgate during the first 12 months’ duration of this Agreement.

23

Indemnity and Responsibility

23.1

The VAR must indemnify (and keep indemnified) Landgate, its board members, officers, employees and agents in respect of all claims, demands, actions, suits and damages for loss, damage or injury (including indirect or consequential loss) suffered by Landgate, its board members, officers, employees and agents resulting from: (a) the VAR’s, or their Sub-Licensee’s or End User’s use, reliance on, or sale of Land Information Products and Value Added Products, or reliance on the Software, whether or not any such reliance is notified to Landgate by the VAR; (b) any breach of this Agreement and any tort or negligence by the VAR, any Consultant, End User or Sub-Licensee in connection with this Agreement;

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

(c)

(d)

all breaches of Intellectual Property Rights by the VAR or any third party to whom the VAR provided access to any Land Information Product, either deliberately or inadvertently; and any legal costs, charges and expenses arising in respect of (a) – (c) above

except to the extent such loss is caused by Landgate’s negligence or breach of this Agreement. 23.2

23.3

The VAR agrees to: (a) notify Landgate of and to provide all information in its possession or under its control for any breach of this Agreement by any End User, Consultant, SubLicensee or a third party; and (b) provide all reasonable assistance in any action taken or proposed to be taken by Landgate in enforcing its rights under this Agreement; and (c) promptly advise Landgate in writing of any actions, suits, claims, demands, proceedings, losses, damages, compensation, sums of money, costs, charges and expenses which may be brought, claimed or threatened against the VAR, a Sub-Licensee, End User, Consultant or Landgate for or relating to any Land Information Product or Value Added Product. This clause 23 will survive termination of this Agreement.

24

Insurance

24.1

The VAR must take out and maintain at its sole expense for the Term: (a) all statutory workers' compensation insurance required by law; (b) a valid and enforceable product and public liability insurance policy with an insurer approved by the Australian Prudential Regulation Authority (“APRA”), for a sum insured of at least $10,000,000 for each claim; and (c) a valid and enforceable professional indemnity insurance policy with an insurer approved by Landgate, covering the VAR’s liability arising out of any act, neglect, error or omission made or done by or on behalf of the VAR, its employees, agents, members, subscribers, End Users, Sub-Licensees and Consultants in connection with this Agreement for a sum insured of at least $5,000,000 per occurrence.

24.2

The VAR must disclose this Agreement to any insurer from whom such insurance is referred to in this clause 24 is sought and provide proof of this disclosure by a written confirmation from the insurer to Landgate. Landgate acknowledges and agrees that such disclosure will not constitute a breach of clause 17 (Confidentiality).

24.3

The VAR must notify Landgate immediately of any cancellation or non-renewal of the insurance policies referred to in clause 24.1 and 24.2.

24.4

Landgate may, in its absolute discretion, subject to the provision of 60 days Notice, reasonably require the VAR to increase the level of insurance obtained by the VAR, as referred to in this clause 24.

24.5

The VAR must purchase a special professional indemnity policy covering a run off period for a minimum of 7 years (continuing) in the event of: (a) cessation of the VAR’s business; (b) termination of this Agreement resulting from the VAR ceasing to operate, becoming insolvent or a receiver/manager, trustee in bankruptcy, administrator or similar officer being appointed to take charge of all or part of the VAR’s property; (c) a petition being presented for the winding up or dissolution of the VAR, or the VAR terminating this Agreement.

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

24.6

The VAR must provide to Landgate: (a) a certificate of currency or other policy documentation as deemed reasonably necessary by Landgate, as evidence of the insurance held by the VAR to meet the requirements of clauses 24.1 and 24.5; and (b) a copy of each annual renewal of the VAR’s certificate of currency, on receipt from their insurer.

25

Default and Termination

25.1

Either Party may terminate this Agreement by giving the other Party at least 30 days Notice.

25.2

If the VAR fails to perform any of its obligations under this Agreement, then Landgate may: (a) Give the VAR a Notice describing the default and requiring the VAR to remedy the default within 7 days; (b) Immediately (without notice) suspend part or all of the VAR’s access to the Land Information Products, until such time as the VAR remedies the default; (c) Charge the VAR interest on any overdue amounts at a rate equal to 2% per cent above the applicable base lending rate of the Commonwealth Bank (as determined by Landgate), calculated on a daily and cumulative basis from the payment due date until the date of payment in full; (d) Charge the VAR a default fee for all costs reasonably incurred by Landgate in relation to the enforcement and/or collection of any overdue amounts; and (e) Immediately draw on or require payment under the Bank Guarantee to an amount equal to the total amount owing to Landgate and any other charges owed by the VAR.

25.3

To the extent that Landgate is required to do any matter or thing which the VAR should have done or is required to do under this Agreement, then the VAR agrees as follows: (a) The VAR agrees to pay Landgate, within 7 days of receiving an invoice for such matter from Landgate, the full amount of such invoice without setoff or deduction; and (b) In the event that the VAR does not make payment within 7 days, Landgate may immediately take action to recover any sums due to it as and by way of liquidated debt, in a court of competent jurisdiction.

25.4

Landgate may terminate the Agreement immediately by Notice to the VAR, if: (a) the VAR fails to remedy a default after being given 14 days Notice; (b) anything occurs, the effect of which is to transfer, directly or indirectly, the management or control of the VAR to another person or third party; (c) there is any change in control of the VAR within the meaning of the Corporations Act 2001 (Cth). (d) the VAR is wound up, becomes insolvent or has a liquidator, provisional liquidator, administrator, receiver, manager or receiver and manager appointed; or (e) the VAR fails to comply with clause 4, 5, 7, 8, 9, 12, 14, 15, 17, 18, 19, 20 and 23 of this Agreement

25.5

If Landgate ceases to be a public authority within the meaning of s3(1) the State Supply Commission Act 1991, either Party may terminate the Agreement by Notice within 30 days.

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

26

Obligations when Agreement Ends

26.1

The expiration or termination of the Agreement does not affect any rights, liabilities or obligations of the Parties as a result of anything occurring before the expiration or termination.

26.2

On termination of this Agreement, the VAR must immediately: (a) pay Landgate all payments owing immediately; and (b) cease to use all Land Information Products; (c) delete and expunge any Land Information Products from its systems and records and return to Landgate, within 30 days of the Termination Date, all copies of those Land Information Products that are able to be disaggregated and that are in its possession (in whatever form or medium it is held); (d) in every other respect co-operate with Landgate as it may reasonably require, to minimise any loss, damage or inconvenience to Landgate and its customers resulting from the expiration or termination of the Agreement.

26.3

The VAR may continue to keep one copy of relevant Land Information Products for archiving, statutory and indemnity purposes, but may not further use or distribute such Land Information Products.

26.4

The VAR must provide to Landgate written certification specifying that clause 26.2 has been complied with, within 30 days of the Termination Date.

26.5

The VAR must permit Landgate or any person authorised by Landgate to inspect and audit the VAR’s systems and Accounts for compliance with this clause on being given at least 30 Business Days’ Notice.

26.6

This clause 26 will survive the termination of this Agreement.

27

Further Term or Holding Over Period

27.1

The VAR may exercise an option to extend this Agreement for the Further Term or terms (if any) set out in Item 18 of the Schedule, on the terms and conditions of this Agreement (except for this option to extend in the second Further Term), provided: (a) The VAR is not in breach of any of the terms and conditions of this Agreement; (b) the VAR makes a written request to Landgate, that the Agreement be extended, at least 3 months prior to the expiration of the Term; and (c) Landgate, in its absolute discretion, agrees to that request.

27.2

If the VAR exercises the option referred to in clause 27.1 and Landgate consents, the Agreement will be extended for the Further Term and will:

27.3

(a)

Commence on the day after this Agreement expires;

(b)

Include the Annual Licence Charge and Royalties that will increase annually on each anniversary of the Commencement Date, in accordance with clause 7.5 of this Agreement.

If this Agreement is not extended under sub-clauses 27.1 and 27.2; and (a) the VAR makes payment of the Annual Licence Charge due for the time period after the Termination Date; and (b) Landgate accepts the same; and (c) the VAR is not in arrears with its Royalties at the Termination Date; Then this Agreement will continue in operation in all respects during a Holding Over Period, terminable by either Party on not less than 30 days Notice, except that the Annual Licence Charge will be payable monthly in advance on a pro-rata basis.

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

27.4

If this Agreement is not extended in accordance with sub-clauses 27.1 and 27.2 or held over for the Holding Over Period: (a) This Agreement will cease at the expiration of the Term or sooner if terminated; and (b) No further licence in relation to the Land Information Products may be exercised or implied.

28

Variation

28.1

The Agreement may be varied by the Parties. Any variation of the terms and conditions of the Agreement will only be binding if in writing and signed by both Parties.

29

Force Majeure

29.1

A Party to this Agreement will not be entitled to exercise its rights and remedies upon the default of the other Party if that default: (a) is caused by an act or event beyond the reasonable control of that other Party; (b) continues for greater than one month; and (c) was not reasonably foreseeable at the time this Agreement was entered into.

29.2

Both Parties will be released from their respective obligations in the event of national emergency, war, prohibitive governmental legislation or if any other cause beyond the reasonable control of the Parties renders performance of the Agreement impossible.

29.3

In the event that the preceding two sub-clauses apply then neither Party will be in breach of its obligations which it cannot fulfill as a result of that event. As soon as a Party believes an occurrence has occurred of the type stated in those sub-clauses, it must notify the other Party.

29.4

If the situation specified in sub-clauses 29.1 or 29.2 occurs, the VAR must comply with clause 26.

30

Conflict of Interest

30.1

The VAR must disclose to Landgate, any information that is or might be relevant to determining whether an actual, potential or perceived conflict of interest exists or might exist in relation to this Agreement or the performance of this Agreement by the VAR.

30.2

Landgate may, in its discretion, terminate the Agreement if it considers that the VAR has, or could reasonably be considered to have, an actual, potential or perceived conflict of interest in relation to the performance of the Agreement by the VAR.

31

No Bribe, Inducement or Offer of Employment

31.1

The VAR must not, without the prior written consent of Landgate, directly or indirectly approach or communicate with any officer or employee of Landgate having any connection or involvement with the Agreement, for: (a) an offer of employment; or (b) availability of employment, with the VAR or any related entity.

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

31.2

The VAR must not directly or indirectly offer a bribe, gift or inducement to any officer or employee of Landgate in connection with the Agreement.

32

Use of Lobbyists The VAR warrants and represents to Landgate that any "Lobbyist" [as that term is defined in Premier's Circular No. 2007/09 (see http://www.dpc.wa.gov.au/psmd/pubs/legis/premcirculars/premierscirc.cfm )] that the VAR has employed, engaged or has otherwise involved, directly or indirectly, in connection with the Agreement, is duly registered as a "Lobbyist" in terms of that Premier's Circular and has fully complied with the obligations under it.

33

Governing Law, Parties’ Rights and Remedies

33.1

This Agreement will be construed and governed by the law for the time being in force in Western Australia. The Parties submit to the non-exclusive jurisdiction of the courts of Western Australia.

33.2

The VAR: (a) must not represent itself or allow itself to be represented as a partner, joint venturer, employee or agent of Landgate; (b) is not by virtue of this Agreement a partner, joint venturer, employee or agent of Landgate, nor does the VAR have any power or authority to bind or represent Landgate.

33.3

A Party may exercise a right, power or remedy at its discretion either separately or concurrently with another right, power or remedy. A single or partial exercise of a right, power or remedy by a Party does not prevent a further exercise of that right, power or remedy or an exercise of any other right, power or remedy. Failure by a Party to exercise or delay in exercising a right, power or remedy does not prevent its exercise.

33.4

The rights, powers and remedies provided in this Agreement are cumulative with and not exclusive of the rights, powers or remedies provided by law or available in equity, independently of this Agreement.

33.5

If any provision of this Agreement becomes invalid, illegal or unenforceable for any reason, this Agreement will remain otherwise in full force apart from such provision, which will be deemed deleted or read down to the extent reasonable to make it valid and enforceable, at Landgate’s election.

33.6

This Agreement constitutes the entire agreement between the Parties and supersedes any previous agreements or representations, written or oral, about the Land Information Products.

33.7

Waiver by either Party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.

33.8

No decision, exercise of discretion, judgment or opinion or approval of any matter mentioned in this Agreement or arising from it, will be deemed to have been made by Landgate, unless in writing and at its sole discretion, except where otherwise expressly provided in this Agreement.

33.9

The VAR must do all things and sign all documents necessary to give effect to the provisions of this Agreement.

33.10

If there is any inconsistency between: (a) this Agreement; and (b) the Schedule to this Agreement, the Schedule prevails to the extent of that inconsistency.

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

34

Assignment and Sub-Licensing

34.1

The VAR may not assign, transfer or sub-licence its rights under this Agreement unless it has first obtained the written consent of Landgate, whose consent may be withheld in its absolute discretion.

34.2

If the VAR is a corporation [other than a public company as defined in the Corporations Act 2001 (Cth)] the VAR is deemed to have assigned the Agreement if: (a) anything occurs, the effect of which is to transfer, directly or indirectly, the management or control of the VAR to another person; or (b) there is any change in control of the VAR within the meaning of the Corporations Act 2001 (Cth).

34.3

Any assignee or similar must comply with the Qualitative Criteria, prior to Landgate approving any assignment, transfer, sub-licence or similar.

34.4

In addition to sub-clause 34.1, the VAR must not sub-licence its rights under this Agreement in whole or in part, unless: (a) The relevant terms and conditions of this Agreement also apply to any SubLicensee (except for the payment amounts prescribed in the Schedule and any right to appoint Sub-Licensees) ; and (b) The Sub-Licensee’s Unique Hits are accounted for separately and excluded from those included in the VAR’s Transitional Royalty Cap and the Annual Royalty Cap, if they apply; (c) The VAR ensures that Landgate will be permitted to inspect any SubLicensee’s contracts, accounts and records which arise from or relate to this Agreement; (d) The VAR remains entirely responsible for the acts or omissions of any SubLicensee under or in connection with this Agreement; (e) The VAR indemnifies Landgate fully for any loss it suffers or against any third party liability it incurs, that is caused or contributed to by an act or omission of a Sub-Licensee; (f) The VAR informs all Sub-Licensees (or similar), that the contractual relationship between the VAR and Landgate does not impose any express or implied legal obligation of any nature whatsoever, in contract or by any other means, on the part of Landgate to the Sub-Licensee; and (g) The details of any Sub-Licensee as specified in Item 20 of the Schedule are advised to Landgate in writing and updated in the same manner whenever the details change.

34.5

Landgate may withdraw its consent to any or all of the VAR’s Sub-Licensees at any time by Notice and the VAR must terminate the Sub-Licensees concerned within 7 days of the date of such Notice.

34.6

If Landgate withdraws its consent to any Sub-Licensee in accordance with the preceding clause, Landgate may also (acting in its absolute discretion): (a) terminate this Agreement; and (b) terminate any other contracts it has with the VAR.

34.7

Neither Landgate, nor the Crown, will be subject to any claim for damages or any other loss, for any contracts terminated under this clause.

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

35

Notices

35.1

Any Notice given under this Agreement: (a) must be in writing and signed by a person duly authorised by the sender; (b) must be addressed to the intended recipient at the address or facsimile number in Item 2 of the Schedule (or Item 20 for Sub-Licensees), or the address or facsimile number last notified by the intended recipient to the sender; and (c) will be given and will be taken to have been given or made: (i) when delivered, for delivery in person (including by overnight or international courier) or to the recipient’s address; (ii) 3 Business Days after posting (or 7 Business Days if from a place outside Australia, for prepaid post; or (iii) at the time of transmission, for facsimile transmission, provided that: following transmission, the sender’s facsimile machine produces a report confirming successful transmission of the facsimile in its entirety; and (iv) if delivery or receipt occurs on a day on which business is not generally carried on in the place to which the Notice is sent, or is later than 5pm (local time), the Notice will be deemed duly given at the commencement of business on the next day on which business is generally carried on in that place.

36

Dispute Resolution

36.1

Before resorting to external dispute resolution mechanisms, the parties must attempt to settle by negotiation in good faith, any dispute in relation to this Agreement and where practicable, each Party will refer the matter to personnel who have authority to intervene and direct some form of resolution.

36.2

Either Party may give the other Party formal notice in writing of a dispute and if the dispute is not settled within 10 Business Days, it must be submitted to the dispute resolution process described in clause 36.3 and 36.4.

36.3

It is agreed by both Parties that the dispute resolution process will first consist of mediation.

36.4

In the absence of agreement, the mediation will be conducted by a single mediator. The mediator is to be appointed by the President of the Law Society of Western Australia within 10 Business Days of request for appointment by one Party to the other. During the mediation: (a) the Parties may not be represented by legal practitioners; (b) the mediator will determine the process for mediation; and (c) the costs of the mediation will be shared equally by the Parties.

36.5

If the dispute remains unresolved after 30 days and both Parties have made genuine attempts to resolve the dispute in accordance with the preceding sub-clauses, either Party may then have recourse to the courts.

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

SCHEDULE Item 1

Date of Agreement [Licensor to complete]

DATED THIS Item 2

DAY OF

201

Details of Parties Landgate

Entity Name

Western Australian Land Information Authority, a body corporate established by the Land Information Authority Act 2006 and trading as Landgate

ABN

86 574 793 858

Contact Person

Glen Jacobsen, Lead Account Manager, Land and Property Market

Address for service of Notices

1 Midland Square, Midland, Western Australia 6056

Telephone

(08) 9273 7139

Value-Added Reseller (VAR)

Mobile Fax

(08) 9273 7205

Email Address

[email protected] [email protected]

Web Address

www.landgate.wa.gov.au

Item 3

Agreement Number

Item 4

Commencement Date

Item 5

Termination Date

Item 6

Description of Land Information Products (i) (ii)

Item 7

Sales Evidence Data Tenure Data

Format of the Land Information Products ASCII or Excel

Item 8

Metadata of the Land Information Products Metadata statements on the Information are provided with the Information

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

Item 9

Approved Purpose of Land Information Products The VAR may only use Land Information Products in the lawful conduct of its business to: (a)

(b) (c)

collate and prepare information for the general public, potential vendors, or prospective market listings, of properties that may be offered for sale in Western Australia; collate and prepare information for potential purchasers of properties offered for sale in Western Australia; collate and prepare information for persons having or reasonably potentially likely to have a legitimate interest in a property offered, or that may be offered, for sale in Western Australia (for example, financiers/mortgagees, investors, tenderers);

The Land Information Products may be used by the Licensee or any of its End Users’ entitled to access and use the Land Information Products, in accordance with this Agreement, for the purpose of preparing, compiling, creating or manufacturing any Value Added Product of the following type for the following purpose and subject to Clause 18 of the Licence: (a)

(b)

(c)

Value Added Products for presentation to the general public, potential vendors and purchasers of properties that may be offered for sale in Western Australia; Value Added Products for inclusion in any other products or for general publication in any newspaper or other publication, distributed or proposed to be distributed in relation to the real estate industry in Western Australia; Value Added Products for inclusion in Property Appraisal Reports for presentation to owners or potential purchasers of the property, or other persons having a legitimate interest in property.

Item 10

Site

Item 11

VAR’s System [See Definition and clause 14. Specify authorised equipment.]

Item 12

Land Information Product Updates Maintenance updates of the Land Information Products will be provided by Landgate on: Sales Evidence Data – Weekly – Incremental Tenure Data – Fortnightly – Refresh

Item 13

Security Level As specified in sub-clause 14.5

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

Item 14

Register of Access, Transfers and Sales The Register must contain the following information for all End Users, Consultants, Sub-Licensees and third parties who access or receive Land Information Products or Value Added Products: (i) Name, registered business name, company name and ABN (ii) Contact person's name (iii) Site address (iv) Date of commencement / signing access agreement. (v) Extent of access/usage (vi) Any other attribute nominated by Landgate (vii) The Land Record usage (or Unique Hits) for each; (viii) Land Information Products sold. In accordance with sub clause 8.1(f), the VAR will forward the Register quarterly to: Pricing and Licensing Section Landgate PO Box 2222 Midland WA 6936 Attention : Business Consultant or by Email to: [email protected]

Item 15

Annual Licence Charge, Payment Manner and Frequency

Item 16

Royalties, Payment Manner and Frequency

Item 17

Review Date(s) Annually on the ___________

Item 18

Further Term One (1) option to extend for a period of one (1) year in accordance with clause 27.

Item 19

Bank Guarantee $...........................

Item 20

Sub-Licensee Details

Sub-Licensee’s Business Name ABN Contact Person Address for service of Notices Telephone Mobile Fax Email Web Address

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

Item 21

Special Conditions Not applicable

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

SIGNING PAGE Landgate’s Execution Signed for and on behalf of the Western Australian Land Information Authority in accordance with authorisation under section 87 of the Land Information Authority Act 2006, in the presence of:

) ) ) ) )

______________________________________

__________________________________________ Signature of Witness

__________________________________________ Name of Witness (print)

Date:

/

/

VAR’s Execution Executed by …………………………………….(ABN………………………) in accordance with section 127 of the Corporations Act 2001:

_____________________________________ Signature of Director

___________________________________ Signature of Director / Company Secretary

_____________________________________ Name of Director (print)

___________________________________ Name (print)

Date:

Date:

/

/

/

/

OR

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

Executed by …………………………………….(ABN………………………) in accordance with section 127 of the Corporations Act 2001:

__________________________________________ Signature of Sole Director/Sole Secretary

__________________________________________ Name of Sole Director/Sole Secretary (print)

Date:

/

/

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

Annexure A

CONFIDENTIALITY DEED WESTERN AUSTRALIAN LAND INFORMATION AUTHORITY trading as LANDGATE (Disclosing Party)

AND

[ OTHER PARTY ] (Receiving Party)

PARTIES

WESTERN AUSTRALIAN LAND INFORMATION AUTHORITY Trading as Landgate ABN 86 574 793 858 1 Midland Square, Midland WA 6936 (Disclosing Party)

[ NAME OF RECEIVING PARTY ] ABN Address (Receiving Party)

BACKROUND A

The Disclosing Party possesses the Confidential Information. The Receiving Party wants to have access to the Confidential Information for the Specified Purpose.

B

The Disclosing Party has agreed to disclose the Confidential Information to the Receiving Party subject to the terms and conditions of this Agreement.

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

AGREEMENT 1

ACCESS The Receiving Party acknowledges that the Receiving Party may be given access to certain Confidential Information of the Disclosing Party for the Specified Purpose.

2

OBLIGATION OF CONFIDENTIALITY

2.1

Confidentiality In consideration of the Disclosing Party allowing the Receiving Party to have access to the Confidential Information, the Receiving Party agrees that (i) it will keep confidential the Confidential Information; and (ii) it will ensure that its officers, employees, contractors, agents and advisors will keep confidential the Confidential Information.

2.2

Continuing Obligation The Receiving Party shall continue to be bound by the covenants and obligations contained in this Agreement even if (a) this Agreement is terminated for any reason, or (b) the Specified Purpose comes to an end for any reason.

3

RECEIVING PARTY’S OBLIGATIONS

3.1

Non-Disclosure and Use (a)

(b)

3.2

Unless it has the prior written consent of the Disclosing Party to do so, the Receiving Party will not (i) disclose any of the Confidential Information to any other person; or (ii) use any of the Confidential Information otherwise than for the Specified Purpose. The Receiving Party will ensure that its officers, employees, contractors, agents and advisors do not (i) disclose any of the Confidential Information to any other person; or (ii) use any of the Confidential Information otherwise than for the Specified Purpose. This clause 3.1(b) does not apply if the Disclosing Party has given its prior written consent for the disclosure or use.

Uncertainty If the Receiving Party is uncertain as to whether any information is Confidential Information, the Receiving Party will treat the information as if it were Confidential Information unless and until the Disclosing Party agrees in writing that the information is not Confidential Information.

3.3

Precautions The Receiving Party will take all reasonable precautions to (i) maintain the confidentiality of Confidential Information, (ii) prevent the unauthorised disclosure of the Confidential Information, and (iii) prevent the unauthorised use of the Confidential Information.

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

3.4

Unauthorised Disclosure or Use If the Receiving Party becomes aware of any actual or likely unauthorised disclosure or use of the Confidential Information, then the Receiving Party will (i) immediately notify the Disclosing Party of the actual or likely unauthorised disclosure or use of the Confidential Information, and (ii) take all steps which the Disclosing Party may reasonably require in relation to such actual or likely unauthorised disclosure or use.

3.5

Return of Confidential Information At the conclusion of the Specified Purpose or upon the written request of the Disclosing Party, the Receiving Party will, at its own expense, immediately deliver to the Disclosing Party all records and materials (and copies of those records and materials) containing or embodying the Confidential Information that are in the possession of (a) the Receiving Party, its officers, employees, contractors, agents or advisors, or (b) any other person to whom the Receiving Party has disclosed all or any of the Confidential Information (whether or not with the consent of the Disclosing Party).

4

Exceptions The Receiving Party will not be bound to keep confidential any Confidential Information if and to the extent that any one or more of the following circumstances occur. (a) The Confidential Information is, or becomes part of the public domain otherwise than by breach of this Agreement by the Receiving Party. (b) Prior to the disclosure of the Confidential Information by the Disclosing Party to the Receiving Party, the Confidential Information was already in the Receiving Party’s possession as a result of the Confidential Information having been lawfully obtained by the Receiving Party from another person without any restriction as to use or disclosure. (c) After the disclosure of the Confidential Information by the Disclosing Party to the Receiving Party, the Confidential Information is lawfully obtained by the Receiving Party from another person without any restriction as to use or disclosure. (d) The Confidential Information is required to be disclosed by the operation of any law, stock exchange, judicial or parliamentary body or governmental agency. (e) The Disclosing Party has given its written consent to the disclosure of the Confidential Information. (f) The Confidential Information is disclosed by the Receiving Party to its officers, employees, agents, contractors or professional advisers who have agreed in writing to keep confidential the Confidential Information. (g) If the Recipient Party is an agent, agency, department or instrumentality of the State of Western Australia, then the Recipient may disclose the Confidential Information to (i) any Western Australian government Minister, or (ii) the Western Australian Parliament, or (iii) any committee or sub-committee of the Western Australian Parliament.

5

REMEDY

5.1

Financial and Other Loss and Damage The Receiving Party acknowledges and accepts that (i) the Disclosing Party would suffer financial and other loss and damage if there were any breach of this Agreement, and (ii) monetary damages would be an insufficient remedy.

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

5.2

Injunctive Relief The Receiving Party acknowledges and accepts that, in addition to any other remedy which may be available in law or equity, the Disclosing Party is entitled to injunctive relief to prevent a breach of this Agreement and to compel specific performance of this Agreement.

5.3

Costs and Expenses Following a written request from the Disclosing Party, the Receiving Party will immediately reimburse the Disclosing Party for all costs and expenses (including legal costs and disbursements on a full indemnity basis) incurred by the Disclosing Party in enforcing the obligations of the Receiving Party under this Agreement.

6

INDEMNITY

6.1

Indemnity for Costs The Receiving Party will indemnify the Disclosing Party against all costs, expenses, actions or claims directly or indirectly incurred or suffered by the Disclosing Party as a result of any breach of this Agreement by the Receiving Party.

6.2

Scope of Indemnity The indemnity in clause 6.1 extends to and includes all costs, damages and expenses incurred by the Disclosing Party in defending and/or settling any such costs, expenses, actions, suits proceedings, claims or demands (including legal costs and disbursements on a full indemnity basis).

7

CUMULATIVE RIGHTS The rights under or arising out of this Agreement do not exclude any other rights of either party.

8

WAIVER

8.1

No Waiver Except by Notice in Writing No right under this Agreement is waived or deemed to be waived except by notice in writing signed by the party waiving the right.

8.2

No Waiver of Subsequent Breaches A waiver by one party under clause 8.1 does not prejudice its rights in respect of any subsequent breach of this Agreement by the other party.

8.3

No Waiver by Extension or Forbearance A party does not waive its rights under this Agreement because it grants an extension or forbearance to the other party.

9

VARIATION A variation of this Agreement will not be effective unless it is in writing and signed by the parties.

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

10

GOVERNING LAW AND JURISDICTION

10.1 Governing Law This Agreement is governed by the laws of the State of Western Australia. 10.2 Jurisdiction The parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Western Australia.

11

DEFINITIONS The following definitions apply to the interpretation of this Agreement. Confidential Information means any one or more of the following. (a)

All trade secrets, ideas, know-how, concepts and information whether in writing or otherwise relating in any way to the matters described in item 1 of the Schedule.

(b)

All other information relating to the Disclosing Party and its affairs or businesses, sales, marketing or promotional information, which is not in the public domain.

Confidential Information includes (i) all information which the Receiving Party becomes aware of (as well as information which is specifically disclosed), and (ii) any item referred to above which is in the Disclosing Party’s power, possession or control concerning or belonging to any other person.

Schedule means the schedule to this Agreement.

Specified Purpose means the purpose set out in item 2 of the Schedule.

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

SCHEDULE 1

CONFIDENTIAL INFORMATION

1.1

This item requires VERY careful consideration as it describes the information which is to be protected. The information to be protected should be clearly identified and then an accurate description of that information needs to be inserted in this item of the schedule. Great care needs to be taken to ensure that description includes all of the information which is to be protected. The following is included as an example of what Landgate has previously included in this item.

1.2 1.3 1.4

These notes should be deleted from the final draft.

2

SPECIFIED PURPOSE

2.1

Insert a description of the specified purpose for which the Confidential Information is being disclosed.

These notes should be deleted from the final draft.

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

EXECUTED BY THE PARTIES AS AN AGREEMENT Executed for and on behalf of the

DISCLOSING PARTY

Signature

Date

(i) Name (Please Print)

(ii) Status (eg director, manager etc) By signing this Agreement the Disclosing Party’s representative warrants that he / she has authority to sign this Agreement on behalf of the Disclosing Party

Executed for and on behalf of the

RECEIVING PARTY

Signature Date

(i) Name (Please Print)

(ii) Status (eg director, manager etc) By signing this Agreement the Receiving Party’s representative warrants that she / he has authority to sign this Agreement on behalf of the Receiving Party

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx

[These notes should be deleted from the final draft of the agreement]

NOTES FOR COMPLETING THIS PRECEDENT 1 This is a one way Confidentiality Agreement where Landgate (L) discloses information to the other party (OP). OP’s details need to be included on the cover and on page 1. 2 If OP is also disclosing information to L, then a separate agreement should prepared where OP is the disclosing party and L is the Receiving Party. 3 This precedent is based on the precedent which appears in the Encyclopaedia of Forms and Precedents. It has been reviewed by SSO. Comments from SO have been incorporated. 4

Steps required to complete this precedent. 4.1 4.2 4.3

5

Include the OP details on the cover and page 1 Complete items 1 and 2 of the schedule. Execution of the agreement by authorised representatives.

This precedent was prepared in May 2008 (Mark McLinden). This precedent was last updated in May 2008 (Mark McLinden).

Western Australian Land Information Authority ABN 86 574 793 858 Landate Sample Land Information VAR Licence Agreement 250112.docx