Software as a Service Agreement

These terms are between you and Dumont Pty Ltd (ACN 699 956 271), which provides Moveezi. In these terms, "Moveezi" refers to the Moveezi product and website; the contracting party is Dumont Pty Ltd.

Dated as of the Commencement Date set out in Schedule 1.

Parties: The supplier party named in Schedule 1 ("Supplier");

And: The customer party named in Schedule 1 ("Customer").

Recitals

i. The Customer requires access to the Application to assist the Customer in the Business referred to in Schedule 1.

ii. The Supplier has the right to license the Application described in Schedule 1.

iii. The parties have agreed for the Supplier to make the Application available to the Customer as a service and for the Supplier to provide other related services, on the terms of this Agreement.

It is agreed as follows:

1. Definitions

1.1 In this Agreement, unless the contrary intention appears:

"Access and Use Procedures" means the access and use procedures in respect of the Application (including as to communications and security) as amended from time to time;

"Additional Charge" means an additional charge in accordance with the Supplier's standard rates in effect from time to time;

"Affiliates" mean an entity owned by, controlling, controlled by, or under common control with, directly or indirectly, a party. For this purpose, "control" means the power, directly or indirectly, to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract or otherwise;

"Agreement" means this document together with its schedules;

"Application" means the computer software application described in Item 1 of Schedule 2;

"Application Customisation" means any customisation, amendment, edit, add-on, extension or additional functionality of the Application requested by the Customer and developed by the Supplier in accordance with the terms of this Agreement;

"Background IP" in relation to a party means any Intellectual Property Rights:

i. which that party held prior to entry into this Agreement; or

ii. developed by or for that party independently of this Agreement;

"Business" means the Customer's business as described in Item 3 of Schedule 1;

"Charges" means the Charges for the Services as specified in Schedule 4;

"Commencement Date" means the date specified in Item 4 of Schedule 1;

"Confidential Information" means:

i. information relating to the personnel, policies, business, systems and data of the parties;

ii. information relating to the terms of this Agreement;

iii. information which a party declares to be confidential at the time of disclosure;

iv. the Customer Data, and includes information relating to the Application but excludes information which:

a. is in the public domain as at the date of this Agreement, or at a later date comes into the public domain, where that confidential information has come into the public domain other than as a result of any breach of this Agreement;

b. is known to the Receiving Party before the date it is disclosed by the Disclosing Party or is lawfully obtained by the Receiving Party after that date, other than from a source which is connected with the Disclosing Party and which, in either case, has not been obtained in violation of, and is not otherwise subject to, any obligation of confidentiality to the Disclosing Party;

c. the Receiving Party can show that Confidential Information was independently developed by it other than in connection with this Agreement, without the aid of any personnel who have or have had access to the Disclosing Party's Confidential Information;

"Customer Access Facilities" means telecommunications, networks, systems and any other facilities used or required by or on behalf of the Customer for accessing and making use of any Services other than the facilities provided by the Supplier from time to time under this Agreement;

"Customer Data" means data to which the Supplier is provided access by the Customer for the purpose of the Services;

"Data Protection Laws" means the applicable laws relating to personal data protection or privacy applicable to the Customer;

"Developed IP" means any Intellectual Property Rights created by or on behalf of the Supplier, or as a consequence of, the performance of this Agreement, including the performance of the Supplier's Services;

"Force Majeure" means a circumstance beyond the reasonable control of the Supplier which results in the Supplier being unable to observe or perform on time an obligation under this Agreement. These circumstances include but are not limited to any:

i. act of God, lightning, storm, flood, fire, earthquake or explosion, cyclone, tidal wave, landslide, adverse weather conditions;

ii. outbreak or escalation of hostilities (whether or not war has been declared) or any other unlawful act against public order or authority;

iii. industrial dispute;

iv. government restraint;

v. pandemic and/or epidemic; and

vi. other event which is not within the reasonable control of the parties;

"GST" means:

i. the same as in the GST Law;

ii. any other goods and services tax, or any tax applying to this transaction in a similar way; and

iii. any additional tax, penalty tax, fine, interest or other charge relating to the taxes referred to in paragraphs i. and ii. above;

"GST Law" means the same as "GST Law" in A New Tax System (Goods and Services Tax) Act 1999 (Cth);

"Intellectual Property Rights" means

i. all intellectual property rights, including all registered and unregistered rights in respect of copyright, designs, trademarks (including service marks), know-how, confidential or other proprietary information (including trade secrets), patents, inventions, computer software programs (in both source and object code form) and all other rights relating to inventions or discoveries or resulting from intellectual activity, whether in Australia or elsewhere;

ii. any application for, or right to apply for, registration of any matter described in paragraph i. above;

iii. any right to take action in relation to infringement or other misuse of any matter described in paragraph i. above; and

iv. any moral rights, including those moral rights arising under the Copyright Act 1968 (Cth) or any similar rights existing under any the laws of any jurisdiction;

"Management Services" means any services described in Schedule 2 in addition to providing access to the Application, which may include implementation, support, training and development services;

"Personal Data" means:

i. any information that can be used directly or indirectly, alone or in combination with other information, to identify an individual; or

ii. the meaning ascribed to it under the Data Protection Laws;

"Privacy Act" means the Privacy Act 1988 (Cth);

"Privacy Policy" means the Moveezi Privacy Policy as notified to the Customer from time to time, but which is located at http://www.moveezi.com/privacy-policy/ as of the Commencement Date;

"Related Deliverables" means any goods or materials the Supplier is required to supply or supplies to the Customer as part of the Services and includes:

i. access to manuals, operating instructions, reports, drawings, specifications, instruction sheets, service guides and training materials; and

ii. licences and other rights of use necessary for the Customer to use the Related Deliverables and Services for their intended purpose;

"Schedule" means a schedule to this Agreement;

"Service Level" means the level of performance to be achieved by the Application and the level of service to be provided by the Supplier as specified in Schedule 3;

"Service Level Credits" means the credits provided by the Supplier if Service Levels are not met, as set out in Schedule 3;

"Services" means the services which the Supplier agrees to provide the Customer under this Agreement, which includes the Licence and the Management Services;

"Term" means the period set out in Item 6 of Schedule 1; and

"Territory" means the Territory set out in Item 8 of Schedule 1.

2. Interpretation

2.1 In this Agreement, unless the contrary intention appears:

i. the clause headings are for ease of reference only and are not relevant to interpretation;

ii. a reference to a clause number is a reference to its subclauses;

iii. words in the singular number include the plural and vice versa;

iv. words importing a gender include any other gender;

v. a reference to a "person" includes bodies corporate, unincorporated associations, partnerships and any other body with an independent legal capacity;

vi. a reference to a "clause" is a reference to a clause or subclause of this Agreement;

vii. a reference to a "subclause" is a reference to a subclause of the clause in which that reference is made;

viii. where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;

ix. a reference to a Schedule includes a reference to any part of that Schedule which is incorporated by reference;

x. the recitals to this Agreement do not form part of the Agreement; and

xi. monetary references are references to the currency of the United States of America.

3. Duration of Agreement

3.1 The Term commences on the Commencement Date and continues for the period specified in Item 6 of Schedule 1.

3.2 Subject to subclause 3.1, this Agreement may be renewed for subsequent terms of similar duration to the Term by written agreement of the parties. The Customer must provide at least thirty (30) days' notice in writing prior to the expiry of the Term or any subsequent term if it wishes to renew the Agreement under this subclause.

3.3 Renewal of this Agreement under subclause 3.2 is subject to the consent of the Supplier. The Customer agrees that the Supplier may require an increase of the Charges as a condition of providing its consent to renewal.

4. Provision of access and management services

4.1 Subject to the terms of this Agreement, and in consideration of the Charges paid by the Customer to the Supplier, the Supplier grants the Customer a non-exclusive licence to use the Application within the Territory and for the Term in accordance with the provisions set out in Schedule 2 (Licence).

4.2 Subject to the terms of this Agreement and to the extent specified in Item 3 of Schedule 2, the Supplier will provide the Customer with those Management Services specified in Schedule 2.

4.3 The Customer agrees that it may only acquire and make use of the Services for the sole purpose of meeting the internal business needs of its Business and that its Business is accurately described in Item 3 of Schedule 1.

4.4 Other than for the Supplier's obligation to grant the Customer the Licence as part of the Services, if any consents (which may include, without limitation, consents for the Supplier to lawfully access, use, store, process and disclose the Customer Data in accordance with any relevant privacy or other law) are required for the Supplier to provide the Services, the Customer must procure those consents for the Supplier. The Supplier's obligations to provide the Services are conditional on those consents having been procured by the Customer. The Customer must comply with the Supplier's requests for evidence that those consents have been obtained within a reasonable period of receipt of the request.

4.5 The Supplier may configure its system and determine the nature and manner of its internal technical support in its discretion. The Customer agrees to comply with the Access and Use Procedures.

4.6 Other than as expressly permitted by this Agreement, the Customer must not do or permit anything to be done in respect of the Application or the Services. Without limiting the preceding sentence, the Customer must not:

i. use the Application other than in accordance with the Access and Use Procedures;

ii. remove or modify any Application markings or any notice of the Supplier's rights;

iii. make programs or materials resulting from the Services available to any third party for any purpose;

iv. commercially exploit the Services or the Application (including by making it available to any third party);

v. reverse engineer, decompile or otherwise attempt to obtain the source code of the Application via any means; and

vi. distribute or transmit any part of the Services by any means.

4.7 The Customer must use reasonable efforts to prevent unauthorised third parties from accessing the Services. The Customer must keep all Application log-in details and passwords confidential at all times. The Customer must notify the Supplier as soon as practicable if it becomes aware that an unauthorised third party is accessing the Services and do anything reasonably required by the Supplier to prevent or stop the unauthorised access.

4.8 The Customer agrees that the access rights of any individual user permitted to use the Services (for example on a named or password-enabled basis) cannot be shared or used by more than one individual.

4.9 The Customer agrees that the maximum disk storage space to be made available to it for the purposes of this Agreement as at the Commencement Date is as specified in Schedule 2. The Customer agrees to comply with any notice from the Supplier for any changes to the Supplier's practices, policies and limits relating to disk storage space.

4.10 The Customer agrees not to make or permit any use of the Services in a way which is unacceptable. Unacceptable use includes, but is not limited to any use which:

i. involves anything which is false, defamatory, harassing or obscene;

ii. involves unsolicited electronic messages (whether of a commercial nature or otherwise);

iii. would involve the contravention of any person's rights (including intellectual property rights);

iv. may offend any laws;

v. violates the Access and Use Procedures; or

vi. may otherwise be regarded by the Supplier, on reasonable grounds, to be unacceptable.

5. Supplier Service Obligations

5.1 Subject to the terms of this Agreement, during the term of this Agreement the Supplier will use all reasonable efforts to ensure that the provision of the Services to the Customer meets the Service Levels set out in Schedule 3.

5.2 The Supplier must:

i. supply the Customer with all Related Deliverables necessary to give the Customer the benefit of the Services while this Agreement is in force;

ii. perform the Services in accordance with this Agreement and with the practices and standards which would reasonably and ordinarily be expected to be exercised by a skilled and experienced contractor providing services or deliverables of the same (or materially similar) nature as those to be provided by the Supplier under this Agreement.

5.3 The Supplier must:

i. comply with all reasonable requests or directions of the Customer in connection with an obligation on the Customer under the Privacy Act or in connection with any applicable Customer privacy policy and procedures; and

ii. take reasonable steps to ensure that Customer Data is:

a. not disclosed other than in accordance with this Agreement;

b. is securely stored; and

c. is protected against misuse, corruption, loss, unauthorised access or disclosure.

6. Data and access

6.1 The Supplier will, to the extent specified in Schedule 2 or otherwise necessary to perform the Supplier's obligations under this Agreement, make backup copies of the Customer Data.

6.2 The Supplier will on reasonable notice, make the Customer Data and related data, documentation or records maintained on behalf of the Customer available for inspection by the Customer or the Customer's auditors.

6.3 If the Customer specifies a particular method for the backup of its data or requires reports to be generated or different types of access to be provided, the Customer agrees to pay any Additional Charges relating to those requests.

6.4 The Customer agrees that it has sole responsibility for the accuracy, quality, integrity, legal compliance, reliability, appropriateness and rights ownership in all the Customer Data. The Supplier acknowledges that all right, title and interest in and to the Customer Data is owned by the Customer. The Customer grants the Supplier a non-exclusive, revocable license in the Customer Data to the extent solely necessary to enable the Supplier to perform the Services and to comply with its obligations under this Agreement.

6.5 The Customer warrants that it has all rights and consents necessary to deal with the Customer Data, and for the Supplier to deal with the Customer Data, as provided under the terms of this Agreement and indemnifies and holds the Supplier harmless from any claim, loss or liability suffered by the Supplier in connection with a breach of this warranty.

6.6 The Customer agrees that there are limitations to the Application's and Services' ability to assist in the Customer's business. The Customer agrees that the Application and the Services do not detect faulty or aberrant input data, do not take into account all of the matters that should be considered in decision-making regarding matters of relevance to the Customer's business and should not be used as a substitute for the Customer's independent and appropriately qualified decisions regarding matters of relevance to the Customer's business.

6.7 The Customer is responsible for providing its own Customer Access Facilities.

6.8 The Customer warrants and will ensure that all Customer Access Facilities meet the security standards set out in the Access and Use Procedures and are and will remain free from any matter (including viruses) which may adversely affect the Supplier, the Application or the Services and are otherwise reasonably appropriate for use in conjunction with the Services.

6.9 Third party facilities, including software programs, may be necessary or appropriate for access to or use with the Application. The parties agree that:

i. the Customer's right to make any use of those facilities is governed by the terms of the relevant third party licence, services or similar agreement and not by this Agreement; and

ii. the Supplier makes no representations in respect of the fitness for purpose of any third party software or service and expressly disclaims all liability in respect of these.

7. Privacy

7.1 In performing this Agreement, the Supplier will comply with its Privacy Policy in force from time to time. The Supplier's Privacy Policy is subject to change from time to time.

7.2 To the maximum extent permitted by law the Supplier may:

i. provide the Services from any locations, and/or through the use of contractors or sublicensees, worldwide;

ii. store Customer Data in Australia or other countries.

7.3 Without limiting clauses 4.4 and 10.1, the Customer agrees to provide any information, and to obtain all consents, relevant to its use of the Services and Application, including those in relation to the collection, use, disclosure, processing and storage of personal information of any individual whose personal information may be included in the Customer Data.

7.4 The Supplier will take reasonable measures to:

i. backup all Customer Data stored during the performance of the Services; and

ii. ensure that Personal Data is protected against loss and against unauthorised access, use, modification, disclosure or other misuse.

7.5 The Supplier will not use Personal Data other than for the purpose of performing its obligations under this Agreement unless required or authorised by Law.

7.6 The Supplier may, and the Customer acknowledges that the Supplier may, be required under the Telecommunications Act 1997 (Cth) to, among other things:

i. facilitate third party access to the Application;

ii. disclose the Customer Data and Personal Data; and

iii. remove electronic protection (including authentication and encryption) applied by the Supplier to the Application, Customer Data and Personal Data.

7.7 The Customer will keep a separate and safely stored backup copy of the Customer Data the Consumer supplies to the Supplier during the performance of this Agreement.

8. Security

8.1 The Supplier will comply with reasonable Australian industry standards of systems hardware and Application integrity and security.

9. Charges

9.1 The Customer must pay the Charges and any Additional Charges at the rate and in the manner specified in Schedule 4.

9.2 The Customer must pay the Supplier those Additional Charges as invoiced by the Supplier from time to time for the supply of goods or services as provided in this Agreement.

9.3 If the Customer wishes to dispute the whole or any portion of an invoice submitted by the Supplier, the Customer:

i. must give notice to the Supplier containing all reasons claimed for disputing each portion of the invoice;

ii. if the Supplier reasonably:

a. agrees with the reasons claimed by the Customer, the Supplier will cancel the original disputed invoice and issue an invoice to the Customer for the amount that is agreed to be paid by the Customer in accordance with usual payment terms as set out in Schedule 4;

b. disagrees with the reasons claimed by the Customer, the Customer will promptly pay the portion of the amount stated in the invoice which is not in dispute and the dispute relating to the unpaid portion will be resolved in accordance with the dispute resolution procedure set out in clause 19 of this Agreement.

9.4 The Customer will pay the Supplier interest on any amount due and not paid by the Customer within the time required by this Agreement at the rate of interest specified in Schedule 4.

9.5 All amounts payable under this Agreement are exclusive of GST which will be payable in addition to any amount specified as payable.

10. Compliance with law

10.1 The Supplier is not liable to the Customer under this Agreement or otherwise if, and to the extent, the Customer's access to or use of any Services is contrary to any obligations, including those owed under contract or any laws.

10.2 The parties indemnify each other against all claims, liabilities, losses, damages, costs and expenses (collectively "Losses") incurred or likely to be incurred as a result of:

i. in the case of indemnification by the Customer: the Supplier's collection, use, disclosure, processing, storage or other involvement with the Customer Data and any other information (in any form) relevant to the Customer's relationship with the Supplier or provided by the Customer to the Supplier under this Agreement;

ii. in the case of indemnification by the Supplier: the Supplier's use of the Customer Data provided by the Customer to the Supplier other than in accordance with this Agreement.

11. Confidentiality and Intellectual Property

11.1 A party ("Receiving Party") must not, without the prior written approval of the other party, disclose the other party's ("Disclosing Party") Confidential Information except as permitted under this clause 11.

11.2 The Receiving Party undertakes to the Disclosing Party that the Receiving Party will, subject to this clause 11:

i. keep all the Confidential Information secret and ensure that the Confidential Information is protected with the degree of care and the security measures that the Receiving Party would apply to its own confidential information (but in no event less than a reasonable degree of care);

ii. use or disclose the Confidential Information only in connection with its performance of this Agreement or to exercise its rights under this Agreement;

iii. subject to clause 11.3:

a. not disclose the Confidential Information to anyone other than those directors, employees, agents and advisers of the Receiving Party as are strictly necessary for the performance of its obligations under this Agreement;

b. disclose the Confidential Information to those persons mentioned in paragraph (a) above only in confidence and only to the extent necessary for the performance of its obligations under this Agreement;

11.3 ensure that each person to whom Confidential Information is disclosed is fully aware of the Receiving Party's obligations under this Agreement, and the Receiving Party will be liable to the Disclosing Party for any breach of confidentiality by any that person.

11.4 The Receiving Party may disclose Confidential Information to the extent required:

i. by any order of any court of competent jurisdiction or any competent judicial, governmental, regulatory or supervisory body; or

ii. by the laws or regulations of any country with jurisdiction over the affairs of the Receiving Party,

in which case, but subject to clause 11.4, before it discloses any Confidential Information, the Receiving Party will (to the extent permitted by law) inform the Disclosing Party of the full circumstances and the information required to be disclosed.

11.5 The Customer specifically agrees and acknowledges that:

11.6 the activities of the Supplier and the transactions contemplated by this Agreement may be subject to the Telecommunications Act 1997 (Cth) under which an appropriately authorised governmental, regulatory or supervisory authority can issue a notice or direction on the Supplier to (among other things):

i. facilitate third party access to the Application;

ii. disclose the Customer Data and Personal Data; and

iii. remove electronic protection (including authentication and encryption) applied by the Supplier to the Application, Customer Data and Personal Data; and

iv. the Supplier will not be taken to be in breach of this Agreement (and the Customer must not bring any claim or demand against the Supplier) in circumstances where the Supplier is lawfully compelled to comply (and does so comply) with any such notice or direction.

11.7 All Background IP remains the property of the relevant owner and is not affected by this Agreement.

11.8 All Developed IP vests exclusively on its creation in the Supplier. However, the copyright in that Developed IP that is:

i. developed specifically for the Customer; and

ii. specified in writing and agreed by the parties as being for the exclusive use of the Customer,

will vest in the Customer, if the Customer:

i. has not breached this Agreement at any time;

ii. has paid all outstanding Charges; and

iii. has requested and executed a document providing for the assignment of the copyright in that Developed IP to the Customer within 30 (thirty) days from the date of expiry of this Agreement or the end of the financial year (whichever occurs first).

11.9 This clause 11 will survive the termination of this Agreement.

12. General exclusion and operation of laws

12.1 Nothing in this Agreement excludes, restricts or modifies any condition, warranty, right or liability which may be implied into this Agreement or protected by law to the extent that the exclusion, restriction or modification would render this Agreement or any provision of this Agreement void, illegal or unenforceable. Subject to the preceding sentence, to the maximum extent permitted by law, all conditions, warranties, rights or liabilities which would be implied in this Agreement or which are protected by law are excluded.

12.2 The Customer acknowledges and agrees that:

i. prior to entering into this Agreement, it has been given a reasonable opportunity to examine and satisfy itself regarding all goods and services which are the subject of this Agreement and that prior to entering into this Agreement it has availed itself of that opportunity;

ii. at no time prior to entering into this Agreement has it relied on the skill or judgment of the Supplier and that it would be unreasonable for the Customer to rely on that skill or judgment; and

iii. where any acquisition of goods under this Agreement has been made by reference to a trial, sample or demonstration model, prior to entering into this Agreement the Customer has been given a reasonable opportunity:

to satisfy itself that the goods correspond with the trial, sample or demonstration model as to quality, state and condition; and

to examine the sample or demonstration model for any apparent defects, and that it has availed itself of that opportunity.

13. Liability of the Supplier

13.1 Notwithstanding anything else in this Agreement, the Supplier's total liability to the Customer (including, to avoid any doubt, under any indemnity given by the Supplier) will not exceed the total amount of Charges paid by the Customer to the Supplier during the Term.

13.2 The Customer:

i. warrants that it has not relied on any representation made by the Supplier which has not been stated expressly in this Agreement, or upon any descriptions, illustrations or specifications in any way relating to the Services including catalogues, website or publicity material produced by the Supplier; and

ii. acknowledges that to the extent the Supplier has made any representation which is not otherwise expressly stated in this Agreement, the Customer has been provided with an opportunity to independently verify the accuracy of that representation.

13.3 Each party (the "First Party") at all times indemnifies and holds harmless the other party and its related bodies corporate ("those indemnified") from and against any Losses incurred or suffered by any of those indemnified arising from any claims against those indemnified where those Losses were caused by any wilful or unlawful act or omission of the First Party.

13.4 In respect of any claim between the parties under or in connection with this Agreement, the parties agree that, to the maximum extent permitted by law, this Agreement excludes the operation of any laws which would apportion any liability to each party which would not have been so apportioned but for those laws.

14. Termination and suspension

14.1 Without limiting the generality of any other clause in this Agreement, each party (the "Offended Party") may terminate this Agreement or suspend performance of its obligations under this Agreement immediately by notice in writing to the other party (the "Offending Party") if:

i. the Offending Party is in breach of any term of this Agreement and the breach is not remedied within seven (7) days of notice of default served by the Offended Party specifying the default and the action required by the Offended Party to remedy the default ("Default Notice");

ii. the Offending Party threatens or resolves to become, or is in jeopardy of becoming, subject to any form of insolvency administration;

iii. the Offending Party, being a partnership, dissolves, threatens or resolves to dissolve, or is in jeopardy of dissolving;

iv. the Offending Party, being a natural person, dies or becomes mentally incapacitated; or

v. the Offending Party ceases or threatens to cease conducting its business in the normal manner.

14.2 If:

i. the circumstances referred to in subclause 14.1(i) occur, the Default Notice may specify that the Offended Party suspends the whole or any part of the performance of their obligations under this Agreement for a period that the Offended Party reasonably thinks fit pending remedy of the default in accordance with the Default Notice;

ii. the circumstances referred to in any of the subclauses in 14.1 occur, the Offending Party agrees that, in addition to terminating this Agreement, the Offended Party may pursue any additional or alternative remedies provided by law.

14.3 The parties agree that on expiry or termination of this Agreement for any reason, all of their rights other than those intended to survive termination immediately terminate.

14.4 The Customer agrees and acknowledges that the Supplier has no obligation to retain any information relating to the Customer (including the Customer Data) and that all that information may be irretrievably deleted by the Supplier after three (3) months from the date of any termination or expiry of this Agreement, other than where that information must be retained by law.

14.5 If this Agreement is terminated because of a default by the Customer, the Supplier may set-off and apply all amounts paid in respect of the unperformed Services including any fees paid in advance by the Customer to or for the credit of the Supplier.

15. Force majeure

15.1 A party (the "Affected Party") is not liable to the other party for any delay or failure to perform its obligations under this Agreement if that delay is due to Force Majeure. If a delay or failure is due to Force Majeure, the Affected Party's obligations will be suspended. If a delay or failure by the Affected Party to perform its obligations due to Force Majeure exceeds 60 (sixty) days, the Affected Party may immediately terminate the Agreement on providing notice in writing to the other party without any other obligation or liability to the Affected Party.

16. Entire Agreement

16.1 This Agreement, including the schedules to it, constitute the entire agreement between the parties in relation to its subject matter and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.

17. Assignment and novation

17.1 The benefit of this Agreement must not be assigned by a party without the written consent of the other party. A change in control of or affecting a party is deemed to be an assignment, with "control" referring to the power to materially influence the party's decision making or policies. However, there will not be an assignment or change in control of the Supplier if the Supplier has its control changed or affected by any merger, acquisition (including any reverse mergers), raising of capital, listing on any stock exchange or any other sale or transfer of its shares, unless:

i. the transaction materially affects the Supplier's (or the successor's) capacity to perform its obligation under this Agreement; or

ii. the new controller of the Supplier is a direct competitor of the Customer.

18. Waiver and variation

18.1 No right under this Agreement is deemed to be waived except by notice in writing signed by each party. A waiver by a party will not prejudice its rights in respect of any subsequent breach of the Agreement by the other party. Any failure by a party to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by the party to the other party, will not be construed as a waiver of the party's rights under this Agreement.

18.2 The provisions of this Agreement will not be varied, except by agreement in writing signed by the parties.

19. Disputes

19.1 Any dispute between the parties in connection with this Agreement which cannot be settled by negotiation between the parties within seven (7) days after notice is given to the other party (the "Dispute") must be attempted to be resolved by the following procedure ("Mediation") before a party may commence any court proceedings in connection with the Dispute:

i. either party may start a Mediation by serving a notice to that effect on the other party (the "Mediation Notice");

ii. the Mediation Notice must state that a dispute has arisen and identify what is in dispute;

iii. the parties must jointly appoint a mediator within fourteen (14) days of the service of the Mediation Notice, failing which a mediator is to be appointed by the President of the Law Institute of Victoria (and not the CEO) on the application of either party (in either case, the person so appointed is now called the "Mediator");

iv. the parties must observe the instructions of the Mediator about the conduct of the Mediation; and

if the Dispute is not resolved within fourteen (14) days after the Mediator has been appointed, or any other time which the parties agree to in writing, the Mediation ceases.

v. The parties must bear and pay an equal share of the Mediator's costs.

vi. If the Dispute is resolved via the Mediation, the parties must sign a note or memorandum recording the terms of that resolution, which will become final and binding on them.

vii. If the parties are unable to resolve Dispute via the Mediation, either of them may refer the Dispute to a court having the appropriate jurisdiction.

viii. Nothing in this clause prevents a party from seeking urgent equitable relief before an appropriate court.

20. Severability

20.1 If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, the Agreement remains otherwise in full force apart from those provisions which may be deemed read down to the extent reasonably appropriate to remove the invalidity, unenforceability or illegality.

21. Governing law and choice of court

21.1 This Agreement will be governed by and construed according to the law of the jurisdiction specified in Item 5 of Schedule 1 and the parties submit to the non-exclusive jurisdiction of the courts in the capital of that jurisdiction.

22. Notices

22.1 All notices required under this Agreement will be in writing and forwarded to the address or email addresses of the parties set out in this Agreement, or other addresses or email addresses notified to the other party in writing from time to time. The notices will be deemed to have arrived at the time of delivery if by hand and, if sent by email, at the time recorded by the sender's server. Notwithstanding the preceding sentence, where any notice is delivered by hand or by email after 5pm on any day or is hand delivered or emailed on a Saturday or Sunday or public holiday in the location where the notice is received, the notice will be deemed received on the next business day.

22.2 Emails will be deemed served in accordance with clause 22.1 notwithstanding receipt by the sender from the recipient's email address of an automated (or other) notification of the receiver's absence. However, delivery by email will not have been affected if:

i. the intended recipient promptly informs the sender that the email was received in an incomplete form; or

ii. the server report of the sender indicates a faulty or incomplete transmission of the email.

22.3 Emails sent to the Supplier must be sent to the address set out in Item 7 of Schedule 1 or as otherwise notified to the Customer in writing from time to time.

22.4 Emails sent to the Customer must be sent to the address set out in Item 7 of Schedule 1 or as otherwise notified to the Supplier in writing from time to time.

22.5 For the avoidance of doubt, any notice for termination of this Agreement or service of court proceedings will not be served by email.

23. Execution

23.1 This Agreement may be executed in counterparts by the respective parties, each of which when so executed is deemed to be an original and all of which taken together constitute one and the same agreement, provided that this Agreement is of no force and effect until the counterparts are exchanged.