Realised Technologies Pty Ltd Master Terms

PARTIES

This agreement is between you (you or your) and Realised Technologies Pty Ltd (ABN 65 159 167 941), its successors and assignees (referred to as us, we or our) and collectively the Parties.
This agreement forms the agreement under which we provide you with the Deliverables. Please read this agreement carefully.

BACKGROUND

A. We are a supplier of information technology services.
B. We wish to supply the Deliverables to you.
C. We agree to supply the Services to you in accordance with the terms of this agreement and a Proposal.

1 Services
1.1 You may, from time to time, request us to provide a draft Proposal in relation to any Deliverables. If you request us to provide a draft Proposal, we may, in our sole discretion, provide a draft Proposal in response to the request.
1.2 If the Parties agree on the terms of a Proposal, the Parties will execute the Proposal.
1.3 If the parties execute a Proposal:

(a) the Parties will have entered into an agreement for us to supply to you the Deliverables set out in that Proposal; and
(b) the terms of this agreement will be incorporated into that Proposal; and
(c) we will supply the Deliverables in accordance with that Proposal.

1.4 If the Parties agree on the terms of a Proposal, the Parties will execute the Proposal, and:

(a) the Parties will have entered into an agreement for us to supply to you the Deliverables set out in that Proposal; and
(b) the terms of this agreement will be incorporated into that Proposal.

1.5 We will supply the Deliverables in accordance with each Proposal.
1.6 If this agreement expresses a time within which the Hardware and Services are to be provided, you agree that such time is an estimate only, and creates no obligation on us to provide the Hardware and Services by that time.

2 Hardware specific terms
2.1 Unless credit terms have been expressly agreed by us, payment for the Hardware must be made in full before physical delivery of the Hardware.
2.2 We may deliver the Hardware using a range of delivery methods. All deliveries must be signed for. Because of manufacturer’s delivery methods, it may be necessary for us to deliver the Hardware by instalments in any sequence.
2.3 Unless otherwise agreed between the Parties, you agree to pay for all Delivery Costs.
2.4 You agree that we hold a general lien over any Hardware owned by us that are in your possession, for the satisfactory performance of your obligations under this agreement.
2.5 You agree that this agreement and your obligations under this agreement create a registrable security interest in favour of us, and you consent to the security interest (and any other registrable interest created in connection with this agreement) being registered on any relevant securities register (and you must do all things to enable us to do so).
2.6 Unless you notify us to the contrary on the day of delivery and such notification is confirmed in writing within two days, the Hardware will be deemed to have been accepted by you. You will not be entitled to withhold payment of all or any of the price of the Hardware whilst we investigate your claim.
2.7 Subject to applicable laws and the ACL, you agree and acknowledge that we do not provide refunds on Hardware purchases.
2.8 The Hardware are complex items of equipment that may occasionally fail, due to external causes or internal faults. This failure can result in the loss, corruption, deletion or alteration of software or data (including user-generated data).
2.9 Unless you consistently, regularly and continually back up all data, software and programs on the Hardware, these could be lost or corrupted in the event of a failure. You agree to regularly and continually back up all data, software and programs stored on the Hardware and to complete a backup prior to seeking any general service and technical support from us.
2.10 We do not manufacture Hardware and may not be able to provide repair facilities or spare parts in relation to them. You acknowledge and agree that the reasonable time for us to repair the Hardware is longer than the reasonable time for the manufacturer to repair the same Hardware.
2.11 The Hardware may be accompanied by their manufacturer’s standard warranties. You acknowledge and agree that where support is required in relation to the Hardware it may be more efficient and expedient to seek support under the manufacturer’s standard warranties, at least at first instance.
2.12 The Hardware is designed for specific applications and purposes to work under certain operating conditions. Your use of the Hardware other than in accordance with any manual, operating instructions, specified operating conditions or any other information provided by us or the manufacturer may damage the Hardware and the data, software and programs stored on that Hardware. You must only use the Hardware in accordance with any manual and any specified operating conditions.
2.13 The Hardware is not fault-tolerant and is not designed or intended for use in High Risk Activities. We expressly disclaim any express or implied warranty of fitness for High Risk Activities. High Risk Activities means use in environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, medical life support, aircraft navigation or communication systems, mass and air traffic control, weapons systems, life-support machines or any other application in which the failure of the Hardware could lead directly to death, personal injury or severe physical or property damage.

3 Variations
3.1 If you wish to request a Variation, the process in this clause 3 will apply. If agreed between the Parties, the agreement may be varied in writing via email.
3.2 If you wish to propose a variation:

(a) you will complete and provide to us a variation form as provided by us;
(b) we will, within 14 days of receipt of a Variation Form, provide to you a Variation Cost Proposal to effect the requested Variation.

3.3 You will, within 14 days of receipt of a Variation Cost Proposal, either accept or reject the Variation Cost Proposal or otherwise, you will be deemed to have accepted the Variation Cost Proposal.
3.4 If a Variation Cost Proposal is accepted or is deemed to have been accepted by you, the relevant Proposal will be amended to incorporate the Variation as set out in the Variation Form and the Variation Cost Proposal.
3.5 If we wish to propose a Variation, the following process will apply:

(a) we will complete and provide to you a Variation Form (including but not limited to details of any additional costs and any other impacts);
(b) you will, within 14 days of receipt of a Variation Form from us, either accept or reject the proposed Variation or you will otherwise be deemed to have accepted the Variation; and
(c) if the Variation is accepted or deemed to have been accepted by you, the relevant Proposal will be varied to incorporate the Variation as set out in the Variation Form.

4 Your Responsibilities
4.1 You must, at your own expense:

(a) provide all reasonable assistance and cooperation to us in order to enable us to supply the Deliverables in an efficient and timely manner;
(b) permit all members of us Personnel to have reasonable access to your premises and facilities for the purposes of supplying the Deliverables;
(c) ensure that we have full and unhindered access to any items of equipment relevant to the Deliverables during business hours or at such other times as agreed between the Parties;
(d) permit all members of us Personnel to have access to any reasonable computing, office productivity software tools, email and internet facilities necessary for the purposes of supplying the Deliverables;
(e) make any changes to your current systems, software and hardware that may be required to support the delivery and operation of any Deliverables;
(f) populate and maintain any databases associated with or for the purpose of the Deliverables;
(g) not cause or permit any items of the Deliverables to be altered, repaired, serviced or moved except by persons approved by us;
(h) if applicable, ensure that the Deliverables are protected from power surges and are located in a suitable physical environment for the operation of the Deliverables;
(i) ensure that you have all equipment and software necessary to protect from external attack the security and integrity of your communications or computer systems and/or network and of the configuration of the Deliverables; and
(j) ensure that any equipment you use in connection with the Deliverables has all necessary approvals and complies with all Laws.

4.2 You must provide to us details of an individual for each Proposal who has the authority to represent you in all matters concerning such Deliverables which are the subject of the Proposal.
4.3 You must:

(a) prevent the unauthorised access to any Deliverables; and
(b) maintain the confidentiality and security of any account details or passwords.

4.4 You are responsible for all use of the Deliverables and must ensure that no person uses the Deliverables:

(a) to break any law or infringe any person’s rights;
(b) to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or
(c) in any way that damages, interferes with or interrupts the supply of the Deliverables.

5 Relationship manager
Each Party will appoint and maintain at all times a relationship manager who will be responsible for the day to day management of this agreement. The Parties’ respective relationship managers will meet from time to time to ensure the appropriate and efficient management of this agreement.

6 Acknowledgements
6.1 You acknowledge:

(a) we will not be responsible or liable for any Liability or Claim if we are delayed in the provision of the Deliverables as a direct or indirect result of the acts or omissions of you, any member of your Personnel or any third Party;
(b) if we are delayed in the provision of the Deliverables as a direct or indirect result of the acts or omissions of you, or any member of your Personnel or any third Party, you will pay to us all costs associated with cancelling, postponing or rescheduling the relevant aspect of the Deliverables; and
(c) we will not be liable to you if our failure to achieve a service level is caused directly or indirectly by any act or omission of you, any member of your Personnel, or any third Party.

6.2 You acknowledge that:

(a) we may provide the Deliverables using a combination of our own facilities and the facilities and services of other suppliers;
(b) us do not make any warranty or representation as to the ability of the facilities or services of any other suppliers; and
(c) we are not liable for any failure in, fault with or degradation of the Deliverables if that failure, fault or degradation is attributable to or caused by any failure of the facilities or services of any other suppliers.

6.3 You acknowledge:

(a) we will not be liable for any Liability or Claim in connection with any delay in the delivery of any Deliverables; and
(b) to the extent relevant, risk in any Deliverables will transfer to you when the Deliverables are delivered to you or your carrier and title to any Deliverables will transfer to you on payment for the Deliverables.

7 Relationship
7.1 Each Party acknowledges and agrees that we will provide the Deliverables to you as an independent contractor.
7.2 This agreement does not create any partnership, joint venture, agency or relationship of employment between the Parties.

8 Invoices and Payment
8.1 We will, from time to time or in accordance with any agreed payment milestones, invoice you for the Charges and all reasonable accommodation, travel and other expenses incurred in supplying the Deliverables.
8.2 You will pay each invoice without set-off or delay in accordance with the payment terms set out in the invoice.
8.3 You acknowledge that if any other supplier on which we rely on to supply the Deliverables increases the cost of such Deliverables to us, then we may increase the Charges by an amount reasonably determined by us to recover such increase. If you do not accept the increase in Charges, you may terminate the agreement on 30 days written notice to us.
8.4 If you do not dispute any invoice prior to the date for payment of that invoice, you will be deemed to have accepted the invoice. If you wish to dispute any portion of an invoice, you must pay the undisputed portion of the invoice in accordance with the payment terms set out in the invoice.
8.5 We may impose a credit limit for you and, if you exceed such credit limit, we may:

(a) require you to pay in advance for any Deliverables; or
(b) suspend the supply of the Deliverables or any part of the Deliverables until your account is brought within such credit limit.

8.6 We may charge monthly compound interest on any overdue amounts owed by you at a rate of 5% per annum above the Reserve Bank of Australia’s cash rate target.
8.7 All quotes provided by us will expire and no longer be valid 30 days from the date of issue.

9 Confidentiality
9.1 Each Party will ensure that the Party, and each member of that Party’s Personnel, will not use the other Party’s Confidential Information for any purpose other than strictly for the purposes of the Deliverables, a Proposal or this agreement.
9.2 Each Party will ensure that that Party, and each member of that Party’s Personnel, will not disclose or permit the disclosure of the other Party’s Confidential Information to any person other than to the extent:

(a) the disclosure is to a member of that Party’s Personnel who requires the other Party’s Confidential Information for the performance of that Party’s obligations, or the exercise of that Party’s rights, under this agreement;
(b) the disclosure is in accordance with the other Party’s specific and prior written consent;
(c) the information is in or comes into the public domain other than as a result of a breach of this clause 9;
(d) the information was previously in that Party’s possession, or is provided to that Party by a third Party, without being subject to any confidentiality obligations; or
(e) the disclosure is required by Law.

9.3 If a Party or any member of that Party’s Personnel is required to disclose any of the other Party’s Confidential Information in accordance with clause 9.2(e), that Party will:

(a) immediately, and to the extent possible prior to the disclosure of the other Party’s Confidential Information, inform the other Party of the requirement of the applicable Law; and
(b) disclose only the minimum amount of the other Party’s Confidential Information required to comply with the applicable Law.

9.4 Each Party will ensure that that Party, and each member of that Party’s Personnel, will take all reasonable steps to keep the other Party’s Confidential Information secure including but not limited to by using the security measures and degree of care no less than that Party applies to that Party’s own confidential or proprietary information.

10 Intellectual Property Rights
10.1 All Intellectual Property in the Deliverables and all Intellectual Property developed, adapted, modified or created by us or us Personnel (including without limitation in connection with this agreement and any machine learning algorithms output from the foregoing) is and will remain owned exclusively by us or us third party service providers.
10.2 You grant to us a licence to use any Intellectual Property Rights of you for the purposes of us providing the Deliverables to you.
10.3 You must strictly comply with any software licence entered into between the Parties and any breach of such software licence by you will be deemed to be a material breach of this agreement.
10.4 Subject to you complying with the terms of this agreement at all times, we grant to you an irrevocable, perpetual, non-exclusive, non-transferrable, licence, without the right to sublicence, to use the Deliverables for the purposes of your business provided that you must not:

(a) copy, modify, adapt, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble or decompile the Deliverables or any part of the Deliverables or otherwise attempt to discover any part of the source code of the Deliverables;
(b) use any unauthorised, modified version of the Deliverables, including (without limitation) for the purpose of building similar or competitive software or for the purpose of obtaining unauthorised access to the Deliverables;
(c) use the Deliverables in a manner that is contrary to any Laws or in violation of any Intellectual Property Rights or privacy rights;
(d) publish, post, upload or otherwise transmit data that contains any viruses, trojan horses, worms, time bombs, malware, ransomware, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with information or property of any person;
(e) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Deliverables;
(f) unless authorised under this agreement, use the Deliverables in a web-enabled form for the purposes of third party analysis or view via the internet or other external network access method;
(g) rent the use of the Deliverables to any third parties;
(h) gain revenue, profit or benefit from the use of any trial Deliverables;
(i) take any action that may compromise or jeopardise us Intellectual Property Rights in the Deliverables or otherwise;
(j) remove or deface any confidentiality, copyright or other proprietary notice placed on the Deliverables;
(k) make any representations or warranties to any third parties that could be construed as being representations or warranties from us in relation to the Deliverables or any other matter;
(l) use the Deliverables in any way that involves service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single user login, or time-sharing of the Deliverables; or
(m) do any other thing in relation to the Deliverables specifically prohibited by us in the Documentation or otherwise communicated by us to you in writing as being prohibited.

10.5 Subject to clause 10.4, nothing in this agreement grants to you, or any member of your Personnel, any Intellectual Property Rights.
10.6 You will provide immediate written notice to us if you become aware of any actual or threatened infringement of any of our Intellectual Property Rights.
10.7 You will provide all reasonable assistance to us in relation to preventing any actual or threatened infringement of any of our Intellectual Property Rights.

10.8 You acknowledge:

(a) the value of the Intellectual Property Rights is such that an award of damages or an account of profits might not be an adequate remedy for a breach of this clause 10; and
(b) we may, without having to prove any actual damage, take any action or seek any remedy including but not limited to seeking an injunction in relation to any actual or threatened breach of this clause 10.

10.9 Despite anything to the contrary in this agreement or elsewhere, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Deliverables, in an aggregated and anonymised format (Analytics). You agree that we may make such Analytics publicly available, provided that it:

(a) does not contain identifying information;
(b) is not compiled using a sample size small enough to make the underlying customer data identifiable.

10.10 We and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content provided in connection with the Analytics, including all Intellectual Property rights in the foregoing.

11 Privacy
Each Party will comply with all obligations under the Privacy Act 1988 (Cth) at all times.

12 Force Majeure
If performance of this agreement or any obligation under this agreement is prevented, restricted, or interfered with by causes beyond either Party’s reasonable control (Force Majeure), and if the Party unable to carry out its obligations gives the other Party prompt written notice of such event, then the obligations of the Party invoking this provision will be suspended to the extent necessary by such event. The term Force Majeure includes without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders of acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages. The excused Party must use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and must proceed to perform with reasonable speed whenever such causes are removed or ceased. An act or omission will be deemed within the reasonable control of a Party if committed, omitted, or caused by such Party, or its employees, officers, agents, or affiliates.

13 Insurance
13.1 Each Party will take out and maintain:

(a) public liability insurance in the amount of no less than $20 million;
(b) professional indemnity insurance in the amount of no less than $1 million; and
(c) workers compensation insurance in accordance with all Laws.

13.2 Each Party will provide to the other Party a certificate of currency for each insurance policy referred to in clause 13.1 on request.

14 Warranties
14.1 Each Party warrants that the Party has the right, power, authority and entitlement to execute this agreement and perform that Party’s obligations under this agreement.
14.2 To the extent permitted by Law, we exclude all express and implied conditions and warranties in relation to any goods and/or services except those conditions or warranties that cannot be excluded by Law and our liability under any such conditions or warranties is limited to, at our option:

(a) refunding the cost of the goods and/or services;
(b) resupplying the goods and/or services; or
(c) arranging to replace or repair the goods and/or the outcome of the services.

14.3 Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of goods and services by us to you which cannot be excluded, restricted or modified (Statutory Rights). If you are a consumer as defined in the ACL, the following notice applies to you from us: “We guarantee that the goods and services we supply to you are rendered with due care and skill; fit for the purpose that we advertise, or that you have told us you are acquiring the goods and services for or for a result which you have told us you wish the goods and services to achieve, unless we consider and disclose that this purpose is not achievable; and will be supplied within a reasonable time. To the extent we are unable to exclude liability; our total liability for loss or damage you suffer or incur from our goods and services is limited to us re-supplying the goods and services to you, or, at our option, us refunding to you the amount you have paid us for the goods and services to which your claim relates.” Nothing in this agreement excludes your Statutory Rights as a consumer under the ACL. You agree that our liability for goods and services provided to consumers is governed solely by the ACL and this agreement. We exclude all conditions and warranties implied by custom, law or statute except for your Statutory Rights. Except for your Statutory Rights, all material and work is provided to you without warranties of any kind, either express or implied and we expressly disclaim all warranties of any kind including but not limited to implied warranties of merchantability and fitness for a particular purpose.
14.4 You agree to comply with all laws and regulations applicable to you in the course of performance of your obligations under this agreement. You must not breach the Intellectual Property Rights of any third party.

15 Liability
15.1 Either Party will not be liable to the other Party for any Liability or Claim arising (whether under statute, contract, negligence or other tort, indemnity, or otherwise) in relation to any Consequential Loss.
15.2 To the extent permitted by Law, our liability for any Liability or Claim in relation to any Deliverables, Proposal or this agreement (whether under statute, contract, negligence or other tort, indemnity, or otherwise) will be limited to, and must not exceed in the aggregate for all claims, to the amount of the Charges you paid to us in the 12-month period prior to the Liability arising for the Deliverables in the relevant Proposal affected by the circumstances giving rise to the relevant Liability or Claim.
15.3 We will not be liable to you for any Liability or Claim caused or contributed to by:

(a) a fault or defect in any item of your equipment;
(b) external causes including natural disaster, fire, accident, neglect, misuse, vandalism, water, lightning, power surge, problems with electrical power, electrical spike or any Force Majeure Event;
(c) the use of any Deliverables other than for its intended purpose;
(d) the use with or connection of any Deliverables to items not approved by us;
(e) the performance of maintenance or attempted repair of any Deliverables by persons other than us or as authorised by us;
(f) the relocation of any Deliverables by you;
(g) any configuration or reconfiguration of any Deliverables by you;
(h) any negligence or breach of this agreement by you or your Personnel; or
(i) the use of Deliverables not in accordance with their instructions, normal wear and tear, and problems caused by use of parts and components not supplied by us.

16 Disputes
16.1 In the event of any dispute arising between the Parties as to any matter or thing arising under or in connection with this agreement or a Proposal, then either Party may give written notice to the other Party identifying the matters the subject of the dispute and requiring the dispute to be referred to mediation as follows:

(a) the mediator will be chosen by the President of the Law Society of Queensland;
(b) the mediator will be jointly instructed by the Parties;
(c) the Parties will share the costs of mediation equally; and
(d) if the parties fail to resolve the dispute within 60 days of the notice of the dispute, either Party may terminate the mediation by written notice to the other Party and seek to resolve the dispute by litigation.

16.2 The Parties will, as far as reasonably practicable, continue to perform and comply with their respective obligations under this agreement notwithstanding the fact a dispute has been referred to the dispute resolution procedure in this clause 16 (Disputes).
16.3 Nothing in this clause 16 prevents a Party seeking urgent injunctive or similar interim relief from a court at any time.

17 Suspension & Termination
17.1 We may provide written notice to you to suspend the supply of any Deliverables, without any liability to you, if:

(a) you are in default of any payment or other obligation under this agreement or a Proposal;
(b) you or any other supplier performs any emergency or maintenance or other service work in connection with your network or systems; or
(c) we are required to do so by Law or by any Authority.

17.2 If we suspend the supply of Deliverables under clause 17.1 for a period of 30 days or more, we may provide written notice to you to terminate the Proposal that relates to such Deliverables.
17.3 If you are in breach of this agreement or a Proposal, we may provide a written notice to you specifying the breach and requiring you to remedy the breach within 10 Business Days and if you do not remedy the breach within 10 Business Days after receiving such notice, we may provide written notice to you to immediately terminate the relevant Proposal and/or this agreement.
17.4 You will provide us with immediate written notice, if you become subject to an Insolvency Event or a Change of Control.
17.5 We may immediately terminate this agreement if you become subject to an Insolvency Event or a Change of Control.
17.6 Either Party may terminate this agreement on 30 days written notice to the other Party. In the case of you, if you terminate pursuant to this clause 17.6, you must pay the Early Termination Fee.
17.7 The expiry or termination of this agreement for any reason will be without prejudice to any rights or liabilities which have accrued prior to the date of expiry or termination.
17.8 You will not solicit or entice our employees or contractors to work for you or any business which competes with us during the Term or for a period of 12 months after the date of expiry or termination of this agreement or a Proposal (unless you obtains our express prior written consent). If you solicit or entice our employees or contractors of as set out above, you must pay to us upon demand, AUD $30,000 (plus GST) per employee or contractor.

18 Taxes
A reference in this clause 18 to a term defined or used in A New Tax System (Goods and Services Tax) Act 1999 (Cth) is, unless the context indicates otherwise, a reference to that term as defined or used in that Act. If GST is imposed on a supply made under or in connection with this agreement, the consideration provided for that supply will be increased by the rate at which the GST is imposed and the additional consideration will be payable at the same time as the consideration to which the additional consideration relates. The supplier will issue a tax invoice to the recipient of the supply at the time of payment of the GST inclusive consideration or at another time agreed by the Parties. If one of the Parties is entitled to be reimbursed for an expense or outgoing incurred in connection with this agreement, the amount of the reimbursement will be net of any input tax credit which may be claimed by the Party being reimbursed in relation to that expense or outgoing. You will, at your cost, pay any Taxes in relation to the Deliverables.

19 Notices
Any Notice must be in legible writing and in English and to the Party’s contact details set out in the Commercial Details or other contact details notified by a Party to the other Party in accordance with this clause 19. Any Notice will be regarded as being given by the sender and received by the addressee:

(a) if delivered in person, when delivered to the addressee;
(b) if posted from within Australia, 3 Business Days from and including the date of postage;
(c) if posted from overseas, 10 Business Days from and including the date of postage; or
(d) if sent by facsimile transmission, when received by the addressee unless delivery is not on a Business Day or is after 5:00pm in which case the Notice will be regarded as received at 9:00am on the following Business Day.

20 Assignment
Neither Party may assign any rights or benefits under this agreement without the other Party’s prior written consent which must not be unreasonably delayed or withheld.

21 Severability
If any provision or the application of any provision, of this agreement is prohibited, invalid, void, illegal or unenforceable in any jurisdiction:

(a) this will not affect the validity and enforceability of the provision or part in other jurisdictions;
(b) the provision or part will only be ineffective to the extent of the prohibition, invalidity, voidness or illegality; and
(c) the provision or part will be severed and will not affect the validity or enforceability of the remaining provisions or parts of this agreement.

22 Precedence
If there is any conflict or inconsistency between any terms in the documents that comprise this agreement, the conflict or inconsistency will be resolved in the following order of precedence:

(a) any Proposal;
(b) clauses 1 to 32 of this document; then
(c) any Schedules in numerical order.

If there is any conflict or inconsistency between any terms of this agreement and the terms of any Proposal, the terms of the Proposal will prevail to the extent of the conflict or inconsistency.

23 Entire agreement
This agreement supersedes all prior undertakings, arrangements and agreements and constitutes the entire agreement between the parties in relation to the subject matter of this agreement and there are no conditions, warranties or other terms affecting the agreement between the parties other than those set out in this agreement. Any standard terms and conditions of you in any form (e.g. your purchase order) will not apply to the supply of the Deliverables or form part of this agreement unless specifically referring to this clause 23 and with the written approval of our Managing Director or CEO.

24 Waiver
Any waiver of a right under this agreement must be in writing and signed by the Party granting the waiver and will not operate as a waiver in relation to any subsequent matter. Any failure, delay, forbearance or indulgence by a Party in an exercise, or partial exercise, of a right arising under this agreement will not result in a waiver of that right or prejudice or restrict the rights of the Party.

25 Further Assurances
Each Party must do all things and execute all further documents necessary to give full effect to this agreement.

26 Variations
Any variation of, or amendments to, any terms of this agreement must be in writing and signed by both parties.

27 Advice
Each Party acknowledges that the Party has received legal advice or has had the opportunity of obtaining legal advice in relation to this agreement.

28 Counterparts
This agreement may be executed in any number of counterparts.

29 Cumulative Rights
The rights arising out of this agreement do not exclude any other rights of either Party. Each indemnity in this agreement is a continuing obligation that is separate and independent from the other obligations under this agreement. A Party is not obliged to take any action or incur any expense, before enforcing any indemnity under this agreement.

30 Advice and Liability for Expenses
Each Party must obtain its own independent legal advice and pay its own expenses incurred in negotiating, executing and stamping this agreement.

31 Governing Law
This agreement will be governed by the laws of, and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of, Queensland.

32 Definitions and Interpretation
32.1 Definitions
In this agreement:
Agreement Term means the term for the agreement as set out in a Proposal;
Authority means any government or governmental, semi-governmental, administrative or judicial body, tribunal, department, commission, authority, agency, minister, statutory corporation, instrumentality or entity.
Business Day means a day which is not a Saturday, Sunday or public holiday in the location of our address set out in the Commercial Details.
Change of Control means a change in:

(a) control of the composition of the board of directors of a corporation;
(b) control of more than half the voting rights attaching to shares in a corporation;
(c) control of more than half the issued shares of a corporation (excluding any share which carries no right to participate beyond a specified amount in the distribution of either profit or capital); or
(d) control as defined in the Corporations Act 2001 (Cth);

Charges means the charges set out in a Proposal;
Claim means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise;
Confidential Information means any information, whether in visual, oral, documentary, electronic, machine-readable, tangible, intangible or any other form, relating to a Party including but not limited to any specifications, formulae, know-how, concepts, inventions, ideas, software, designs, copyright, trade secrets or any information relating to any business, products, markets, operations, processes, techniques, technology, forecasts, strategies or any other matter;
Consequential Loss means any consequential loss, indirect loss, loss of actual or anticipated profits, loss of revenue, loss of savings, loss of production, loss of business, loss of opportunity, loss of goodwill, loss of reputation, loss of publicity, loss of data, or loss of use.
Deliverables means the Hardware and Services we will provide to you as agreed in a Proposal;
Documentation means the technical manuals, user manuals, operating manuals, and any other documentation (including any revisions, replacements, amendments or additions), as set out in a Proposal;
Early Termination Fee means any early termination fee as set out in a Proposal.
Equipment means any equipment used or supplied by us or our Personnel for the purposes of supply the Deliverables;
Hardware means any computer hardware, equipment and any other similar items supplied by us to you as part of or incidental to the Deliverables (whether virtual or otherwise);
Insolvency Event means any of the following events or any analogous event:

(a) you dispose of the whole or any part of your assets, operations or business other than in the ordinary course of business;
(b) you ceases, or threatens to cease, carrying on business;
(c) you are unable to pay your debts as the debts fall due;
(d) any step is taken by a mortgagee to take possession or dispose of the whole or any part of your assets, operations or business;
(e) any step is taken for you to enter into any arrangement or compromise with, or assignment for the benefit of, your creditors or any class of your creditors; or
(f) any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of your assets, operations or business;

Intellectual Property Rights mean all present and future rights in or to any patent, copyright, database rights, registered design or other design right, utility model, trademark (whether registered or not and including any rights in get up or trade dress), brand name, service mark, trade name, eligible layout right, chip topography right and any other rights of a proprietary nature in or to the results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether registrable or not, including all renewals, extensions and revivals of, and all rights to apply for, any of the foregoing rights;
Laws means acts, ordinances, regulations, rules, codes and by-laws of the Commonwealth or any state or territory;
Liability means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal Charges);
Notice means any notice or other communication by one Party to the other Party under the terms of this agreement including but not limited to any request, demand, consent, waiver or approval;
Notice Details means the contact details for notices to each Party under this agreement as set out in the Commercial Details;
Personnel means any employee, servant, contractor, subcontractor, agent, partner, director or officer of a Party;
Proposal refers to a Proposal in the form as provided by us;
Services means the services (if any) set out in a Proposal;
Taxes means any present or future tax, fee, levy, duty, charge, withholding, penalty, fine, impost or interest imposed by any Authority including but not limited to any tax in relation to sales, use, property, value added, goods and services, turnover, stamp duty, interest equalisation, business, occupation, excise, income, profits or receipts;
Variation means a variation to a Proposal (including but not limited to a variation to the Deliverables, timing, or any other part of a Proposal).
Variation Cost Proposal means the costs proposed by us and details any other impacts, to affect a Variation.

32.2 In this agreement:

(a) the headings will not affect the interpretation of this agreement;
(b) the singular includes the plural and vice versa, and a gender includes other genders;
(c) any other grammatical form of a word or expression defined in this agreement has a corresponding meaning;
(d) the Schedules to this agreement form part of and are incorporated in this agreement;
(e) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
(f) a reference to “A$”, “$A”, “dollar” or “$” is to Australian currency;
(g) a reference to time is to time in the location of our address set out in the Commercial Details;
(h) a reference to a Party to a document includes the Party’s executors, administrators, heirs, successors in title, permitted assigns and substitutes;
(i) a reference to a person includes a natural person, body corporate, partnership, trust, association or any government or governmental, semi-governmental, administrative or judicial body, tribunal, department, commission, authority, agency, minister, statutory corporation, instrumentality or any other entity;
(j) a reference to a statute, ordinance, code or other law includes regulations, rules and other instruments under the statute, ordinance, code or other law and any consolidations, amendments, re-enactments or replacements;
(k) a word or expression defined in the Corporations Act has the meaning given to the word or expression in the Corporations Act 2001 (Cth);
(l) the meaning of general words is not limited by specific examples introduced by “including”, “for example” or similar expressions;
(m) a reference to anything (including but not limited to any right) includes part of that thing;
(n) any agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds those parties jointly and severally;
(o) any agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of those parties jointly and severally;
(p) any undertaking by a Party not to do any act or thing will be deemed to include an undertaking not to permit or suffer the doing of that act or thing;
(q) a rule of construction does not apply to the disadvantage of a Party because the Party was responsible for the preparation of this agreement or any part of this agreement; and
(r) if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day.