cherrycheck Lite Terms and Conditions

cherrycheck Lite

TERMS AND CONDITIONS

1. Definitions and interpretation clauses

1.1 Definitions

In this Agreement:

Account means a user account which the Product Lite Customer creates when subscribing to the Product.

Business Day means a day on which banks are open for business in Sydney, NSW, Australia, excluding a Saturday, Sunday or public holiday in that city.

Change of Control means, in relation to a party that is not a natural person, the occurrence of an event or series of events that result in a person or persons:

(a) that did not have Control of that party prior to the event or series of events, having Control of that party following that event or series of events; or

(b) that had Control of that party prior to the event or series of events ceasing to have Control of that party.

Claim means any action, claim, proceeding or demand whatsoever, whether presently existing or arising at any time in the future and whether referable to events or circumstances which have already occurred or which may occur in the future.

Company's Personnel means any of the Company's employees, officers, agents, consultants, contractors or subcontractors involved in performing the Company’s obligations under or in connection with this agreement.

Confidential Information means any information in any form disclosed by one party to the other party or acquired by one party from the other party, whether deliberately or inadvertently, and regardless of whether or not marked confidential, which is or can reasonably be regarded as being confidential to the disclosing party and including:

(a) any information passing from the personnel of the disclosing party;

(b) any information relating to this deed, its subject matter, and any negotiations or transactions contemplated or provided for in this deed; and

(c) any information regarding the previous, current or future business interests, operations or affairs of any party or any of its related corporations or of any person or entity with which that party may deal or be concerned,

but excluding any information that the receiving party can establish:

(d) is in the public domain other than through disclosure in breach of this deed;

(e) is independently developed by the receiving party; or

(f) is received by the receiving party from a third party who is not bound by obligations of confidence in relation to the information.

Control has the meaning set out in section 50AA of the Corporations Act.

Consequential Loss includes, without limitation:

(a) loss of profits;

(b) loss of revenue;

(d) loss or denial of opportunity;

(e) loss of or damage to goodwill;

(f) loss of business reputation, future reputation or publicity;

(g) loss of use;

(h) loss of interest; and

(i) loss of anticipated savings;

whether direct, indirect or consequential.

Corporations Act means the Corporations Act 2001 (Cth).

Further Term has the meaning given in clause 2(b).

Government Agency means any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world and includes any self-regulatory organisation established under statute or any stock exchange.

Indemnified Officers means, in relation to a party, its directors, officers, employees, contractors, subcontractors, agents and representatives.

Insolvency Event means the occurrence of any of the following events:

(a) a party becoming an 'externally-administered body corporate' within the meaning of the Corporations Act 2001 (Cth);

(b) any step being taken for the winding up or dissolution of a party;

(d) a party being insolvent within the meaning of the Corporations Act 2001 (Cth), or being taken or presumed to be insolvent;

(e) a party commits an 'act of bankruptcy' within the meaning of section 40 of the Bankruptcy Act 1966 (Cth);

(f) distress, attachment or other execution being levied or enforced over any of a party’s property; or anything analogous or having a substantially similar effect to any of the events specified above happens under the law of any applicable jurisdiction.

Initial Term has the meaning given in clause 2(a).

Intellectual Property means all industrial and intellectual property rights worldwide whether protectable by statute, at common law or in equity, and whether or not registered or capable of being registered, including but not limited to:

(a) the entire copyright throughout the world and any similar rights which may subsist or may hereafter subsist in all works, discoveries, designs, documents, drawings, specifications, records, manuals, models, memoranda, technical data, file layouts and interfaces, and in any other subject matter;

(b) software, source code, object code, software or hardware Product (whether fully developed or in research and development stage) and related documentation;

(d) rights in relation to trade secrets, business concepts and know-how;

(e) rights in relation to designs; and rights in relation to trademarks, service marks and other related marks.

Partner's Personnel means any of the Partner's employees, officers, agents, consultants, contractors or subcontractors involved in the endorsement, marketing and support of the Product in connection with this agreement.

Product Lite Customer means a Partner member club that has subscribed to use the Product by agreeing to the Subscription Terms & Conditions.

Prospective Full Version Customer means any Product Lite Customer that has notified the Partner that it is considering subscribing for the full version of the Product (as detailed in Schedule 2).

Product means the cherrycheck solution Lite Version (detailed in Schedule 2).

Product IP means all Intellectual Property in the Product and any associated websites, applications, documents, source code, trademarks and other materials, and includes the Product Trade Marks.

Product Trademarks means any trademarks notified by the Company to the Partner in writing from time to time.

Related Body Corporate has the meaning given to it in section 9 of the Corporations Act.

Subscription Fees Nil upfront or annuity fees. One-off charge of $200 payable by the Product Lite Customer to the Company if assistance required to upload data. Fees payable by the Product Lite Customer as negotiated by the Company directly with the Product Lite Customer for upgrades to the Cherrycheck Full Version specified in Schedule 2.

Subscription Terms & Conditions means the Company's current subscription terms & conditions per Schedule 4.

Term means the Initial Term and any Further Term.

Territory means the territory specified in Schedule 1.

1.2 Interpretation

In this agreement unless a contrary intention is expressed:

(a) headings and italicised, highlighted or bold type do not affect the interpretation of this agreement;

(b) a reference to a 'person' includes any individual, firm, company, partnership, joint venture, an unincorporated body or association, trust, corporation or other body corporate and any Government Agency (whether or not having a separate legal personality);

(c) a reference to a clause, party, annexure, exhibit or schedule is a reference to a clause of, and a party, annexure, exhibit and schedule to, this agreement and a reference to this agreement includes any clause, annexure, exhibit and schedule;

(d) a reference to a document (including this agreement) includes all amendments or supplements to, or replacements or novations of, that document;

(e) a reference to a party to any document includes that party's successors and permitted assigns;

(f) a reference to time is to time in Sydney, NSW, Australia;

(g) a reference to any legislation includes all delegated legislation made under it and includes all amendments, consolidations, replacements or re‑enactments of any of them, from time to time;

(h) a provision of this agreement may not be construed adversely to a party solely on the ground that the party (or that party's representative) was responsible for the preparation of this agreement or the preparation or proposal of that provision;

(i) the words 'include', 'including', 'for example', 'such as' or any form of those words or similar expressions in this agreement do not limit what else is included and must be construed as if they are followed by the words 'without limitation', unless there is express wording to the contrary;

(j) if an act or event must occur or be performed on or by a specified day and occurs or is performed after 5.00 pm on that day, it is taken to have occurred or been done on the next day; and

1.3 Business Day

If anything under this agreement is required to be done by or on a day that is not a Business Day that thing must be done by or on the next Business Day.

2. Term

(a) This agreement will commence on the date that it is signed by all parties (Commencement Date) and, subject to clause 2(b) or early termination of the agreement in accordance with its terms, will continue for a 36-month period from the Commencement Date (Initial Term).

(b) This agreement will automatically continue for successive 12-month periods (each a Further Term) unless either party, no less than 12 months before the end of the Initial Term; or no less than 6 months before the end of the then current Further Term (as relevant), notifies the other party in writing that it wishes to terminate, in which case this agreement will terminate at the end of the Initial Term or then current Further Term (as relevant).

3. Appointment of Partner

(a) Pursuant to the terms of this agreement, the Company appoints the Partner to endorse, market and support the Product in the Territory for the Term, and the Partner accepts the appointment.

(b) The Partner's role is limited to the endorsement, marketing and support of the Product in accordance with the terms of this agreement. For the avoidance of doubt, the Partner is not appointed as the Company's agent and has no authority to bind the Company to any arrangement or agreement of any nature.

(c) The rights and obligations of each Product Lite Customer in relation to its access to and use of the Product is subject to the Subscription Terms & Conditions, which once accepted, forms a legally binding agreement directly between the Product Lite Customer and the Company. For the avoidance of doubt, the Partner is not a party to that agreement, however the Partner may require the Product Lite Customer to agree to terms and conditions in relation to the provision of onboarding instructions and first level support services for the Product that are required to be provided by the Partner to Product Lite Customers under this agreement.

(d) To enable the Partner to market the Product, the Company will, for the duration of the Term, make available the Product to the Product Lite Customer’s on the terms set out in this agreement.

4. Customer subscription

The Partner acknowledges and agrees that:

(a) the Company will provide the Partner with written information concerning the Product (basic features, optional extras, functionality etc) to assist the Partner endorse and market the Product to its member clubs;

(b) each Product Lite Customer will, when they open an Account for the Product, be required to agree to the Subscription Terms & Conditions with the Company;

(c) the Company may provide the Partner with reasonable directions concerning the endorsement and marketing of the Product pursuant to this agreement which the Partner must use its best endeavours to comply with;

(d) the Partner shall provide all details of any Prospective Full Version Customers to the Company. The Company can negotiate directly with the Product Lite Customer to upgrade and contract for the full version of the Product; and

(e) the Product Lite Customer will pay any applicable Subscription Fees.

5. Training

(a) During the period specified in Item 5 of Schedule 1 (Training Period), the Company will provide to the Partner's Personnel all necessary training to assist the Partner’s Personnel to endorse, market and support the Product.

(b) The Company may require that the Partner's Personnel attend reasonable further training at any mutually convenient time after the Training Period. The Partner must make all of the Partner's Personnel available for such training on reasonable notice by the Company.

(i) be approved by the Company in writing (such approval not to be unreasonably withheld, conditioned or delayed); and

(ii) participate in any training provided by the Company to the reasonable satisfaction of the Company.

6. The Partner's rights and responsibilities

6.1 Fit for purpose

(a) The Partner must use its best endeavours to ensure that the Product is fit for purpose for its member clubs.

(b) The Company agrees that the ‘key items’ included in the Product (as outlined in Schedule 2) shall not be changed during the Term, including for the avoidance of doubt, removing ‘key items’ from the lite version of the Product or moving ‘key items’ from the lite version of the Product into the full version of the Product.

6.2 Onboarding and Support Services

(a) The Partner acknowledges and agrees that:

(i) the Partner will provide written Product onboarding instructions (as provided by the Company to the Partner) to Product Lite Customers; and

(ii) the Partner must provide appropriate first level help-desk telephone support for each Product Lite Customer in accordance with the training provided by the Company, but otherwise to a standard determined by the Partner in its sole discretion.

(b) The Company is responsible for providing second and third level support (including knowledge base and developer support) directly to Product Lite Customers.

6.3 Performance

The Partner agrees to:

(a) endorse and market the Product at the Partner's own cost and, without limiting the Partner’s obligations under clauses 4(a), 5(a), 6.2(a), 6.3(b) and 6.4(f), in a form and at such regularity as reasonably determined by ClubsNSW having due regard to the Partner Model outlined in Item 6 of Schedule 1 of this agreement;

(b) ensure that all information provided or statements made by the Partner about Company and/or the Product (including without limitation in respect of their functionality, performance, scope and other associated matters) is accurate and consistent with this agreement and any written information provided by Company to the Partner from time to time.

6.4 Performance ethic - Partner

The Partner must, in performing its obligations under this agreement, at all times during the Term of this agreement:

(a) act, and ensure that all Partner Personnel act, diligently, ethically, honestly and in good faith in dealing with the Company, Product Lite Customers and Prospective Full Version Customers;

(b) disclose to the Company any conflicts of interest affecting this agreement;

(d) ensure that the Partner is properly skilled to carry out its obligations under this agreement;

(e) ensure that the Partner's Personnel are appropriately qualified, skilled and trained to carry out the endorsement, marketing and support of the Product in accordance with the terms of this agreement and all requirements and laws in each relevant jurisdiction; and

(f) not do anything to damage the Company's reputation or brand or any goodwill in the Product or Product IP.

6.5 Performance ethic - Company

The Company must, in performing its obligations under this agreement, at all times during the Term of this agreement:

(a) act, and ensure that all Company Personnel act, diligently, ethically, honestly and in good faith in dealing with the Partner; the Partner’s member clubs; Product Lite Customers and Prospective Full Version Customers;

(b) disclose to the Partner any conflicts of interest affecting this agreement;

(d) ensure that the Company is properly skilled to carry out its obligations under this agreement;

(e) ensure that the Company's Personnel are appropriately qualified, skilled and trained to carry out the support of the Product in accordance with the terms of this agreement and all requirements and laws in each relevant jurisdiction; and

(f) not do anything to damage the Partner’s reputation or brand, or that of its member clubs.

6.6 Other obligations

(a) The Partner must, and represents and warrants that it will:

(i) cooperate in good faith with all reasonable directions given by the Company with respect to its obligations under this agreement;

(ii) notify the Company if the Partner becomes aware that any Product Lite Customer has, or the Partner suspects that a Product Lite Customer will, breach the Subscription Terms & Conditions;

(iii) provide accurate information to Product Lite Customers and Prospective Full Version Customers about the Company (where relevant) and the Product; and

(iv) not make any promises, representations, warranties or guarantees with reference to the subject matter of this agreement except as expressly provided for pursuant to this agreement or as otherwise directed by the Company.

(b) Each party must keep in full force and effect during the Term of this agreement reasonable insurances commensurate with their obligations under this agreement.

(i) it has the power to enter into and perform its obligations under this agreement;

(ii) it will perform its obligations under this agreement in good faith and to the best of its ability;

(iii) it has entered into this agreement on its own volition and following the making of its own inquiries and not in reliance on any representation made by the other party;

(iv) it will use its best endeavours to preserve the reputation and brand of the other party at all times; and

(v) it will act in an accurate manner, in accordance with the other party's directions, will not mislead or deceive or make any misrepresentation or misleading statement about the other party (where relevant) or the Product.

7. Licence of Product Trade Marks

7.1 Grant of licence

Subject to the terms of this agreement, the Company hereby grants to the Partner a non-exclusive, non sub-licensable, non-transferrable licence, during the Term, to use the Product Trademarks for the purposes of endorsing, marketing and supporting the Product in accordance with this agreement.

7.2 Acknowledgement by Partner

The Partner acknowledges and agrees that:

(a) apart from the licence granted in clause 7.1, this agreement does not grant or transfer to the Partner any rights to the Product or any associated Intellectual Property including without limitation the Product IP; and

(b) the licence granted to the Partner pursuant to clause 7.1 is granted solely for the purposes of enabling the Partner to endorse, market and support the Product in accordance with the terms of this agreement and for no other purpose.

8. Goods and Services Tax (GST)

(a) Words or expressions used in this clause 8 that are defined in A New Tax System (Goods and Services Tax) Act 1999 (GST Act) have the same meaning given to them in that Act.

(b) Unless otherwise stated, any amount specified in this agreement as the consideration payable for any taxable supply does not include any GST payable in respect of that supply.

(c) If a party makes a taxable supply under this agreement (Supplier), then the recipient of the taxable supply (Recipient) must also pay, in addition to the consideration for that supply, the amount of GST payable in respect of the taxable supply at the time the consideration for the taxable supply is payable.

(d) Notwithstanding the foregoing, the Recipient is not obliged under this agreement to pay the amount of any GST payable until the Supplier provides it with a valid tax invoice for the taxable supply.

(e) If an adjustment event arises in relation to a taxable supply made by a Supplier under this agreement, the amount paid or payable by the Recipient pursuant to clause 8(c) will be amended to reflect this and a payment will be made by the Recipient to the Supplier or vice versa as the case may be.

(f) If a third party makes a taxable supply and this agreement requires a party to this agreement (the payer) to pay for, reimburse or contribute to (pay) any expense or liability incurred by the other party to that third party for that taxable supply, the amount the payer must pay will be the amount of the expense or liability plus the amount of any GST payable in respect thereof but reduced by the amount of any input tax credit to which the other party is entitled in respect of the expense or liability.

9. Intellectual Property

9.1 Company ownership

Title to and ownership of the Product IP will remain vested solely in the Company and/or its Related Bodies Corporate.

9.2 Intellectual Property management

(a) The Partner must use its best endeavours to preserve the reputation, value and validity of the Product IP, and agrees to do all things reasonably necessary to protect the Product IP.

(b) The parties agree that any and all goodwill arising from the Partner's use of the Product IP vests in, and is for the exclusive benefit of, the Company.

(i) infringement by any person of any of the Product IP; or

(ii) unauthorised use of the Product IP, or any of the Company's Confidential Information.

(d) The Partner must provide all reasonable assistance and documents required or requested by the Company in relation to any proceedings that the Company may take against any person for infringement or unauthorised use of any of the Product IP, or unauthorised use of the Company's Confidential Information.

(e) The Partner must not attempt to acquire or register any Intellectual Property that is the same as, substantially identical or deceptively similar to, or a substantial reproduction of, any Product IP without the prior written consent of the Company.

(f) The Company warrants that the Partner will not infringe the rights of any third party by using the Product Trademark or the Product IP.

9.3 Modifications and new material

(a) Except as expressly set out in clause 7.3, the Partner must not make any modifications, developments or improvements to the Product IP without the prior written approval of the Company.

(b) Regardless of whether approval is granted, the parties agree that all Intellectual Property rights in such modifications, developments or improvements created by the Partner will vest in the Company immediately upon creation, without the need for any further formality. The Partner will execute any documentation required by the Company from time to time to confirm this.

(c) If approval is granted, the parties agree that the relevant modifications, developments or improvements will form part of the Product IP the subject of the licence in clause 7.1, and will automatically be licensed to the Partner on the terms and conditions set out in this agreement, without the need for any further formality or documentation.

9.4 IP ownership warranty

The Company represents and warrants to the Partner that it owns or has the right to use the Product IP, Product Trademark and any logo or trade mark that it applies to the Product and that the Company will be liable to the Partner for any loss or liability suffered or incurred by the Partner if this warranty is not strictly complied with by the Company.

10. Termination

10.1 Termination by either party

Either party may terminate this agreement by written notice to the other party immediately if:

(a) the other party has committed a breach not capable of remedy;

(b) the other party has committed a breach capable of remedy and has failed to remedy that breach within 30 days' of the date of a written notice issued by the other party specifying the breach and requiring it to be remedied; or

10.2 Consequences of termination

(a) If this agreement ends for any reason, then:

(i) the Partner must immediately cease engaging with any Product Lite Customers about the Product; and

(ii) the Partner must immediately cease endorsing, marketing and supporting the Product to its member clubs or dealing with Product Lite Customers in respect of the Product;

(iii) subject to clause 10.2(c), the Partner must immediately cease using the Product IP or any other associated Intellectual Property in connection with this agreement.

(iv) until a transition contemplated in clause 10.2(c) is completed, the Partner must continue to meet its obligations under this agreement (including without limitation the provision of appropriate support services to Customers as required under clause 6.2(a));

(b) A party not in default may pursue any other rights or remedies available at law against a defaulting party.

(c) The Partner may for a period of 6 months (Run-Off Period) from the date of termination, continue to meet any existing contractual arrangements with any Product Lite Customers.

11. Indemnity and limitation of liability

11.1 Indemnity by the Partner

The Partner agrees to release and hold harmless, indemnify and defend the Company and its Indemnified Officers against any Claim, liability or loss (excluding Consequential Loss) from or in connection with:

(a) any negligence or malpractice, or reckless or intentional misconduct by the Partner or any of the Partner's Personnel;

(b) the white labelling of the Product by the Partner including any claim from a third party relating to the use of any logo or trade mark by the Partner of that third party's intellectual property;

(d) the Partner's breach of any law or infringement of any third party rights including Intellectual Property rights,

except to the extent that such Claim, liability and/or loss is caused or contributed to by the act, omission, negligence or wilful default of the Company or the Company’s Personnel.

11.2 Indemnity by the Company

The Company agrees to release and hold harmless, indemnify and defend the Partner and its Indemnified Officers against any Claim, liability or loss (excluding Consequential Loss) in connection with:

(a) access to and use of the Product by the Partner or a Product Lite Customer;

(b) any written or other Product instructions developed by the Company;

(d) the Company's breach of any law or infringement of any third-party rights including Intellectual Property rights (including any breach of clause 9.4),

except to the extent that such Claim, liability and/or loss is caused or contributed to by the act, omission, negligence or wilful default of the Partner or the Partner’s Personnel.

11.3 Limitation of liability

Except for, and without limiting, the application of clause 11.2, to the fullest extent allowable at law:

(a) the Company only accepts liability to the Partner as required by consumer or other laws which cannot be excluded by contract;

(b) Consequential Loss (whether arising under contract or tort) are expressly excluded under this agreement; and

(c) all services and Product are provided under this agreement on an 'as is' basis and all warranties that may be implied by law or statute (other than those set out in this agreement) are excluded.

11.4 Service limitations

The Company will use reasonable efforts in providing the Product, however other than as set out in this agreement, to the fullest extent permitted at law:

(a) the Company does not warrant or guarantee that the Product will be uninterrupted, error free, lag free, or fit for any specific purpose;

(b) the Company does not take any responsibility for defects, delays or interruptions caused by the delays, action or inaction of any third parties such as hardware suppliers or installers, other carriers, internet service providers, telecommunications companies or service providers; and

(c) if the Partner requires any technical or support work outside the scope of the Product sold to the Partner or the terms of this agreement, the Company may, upon request, provide such services at its then current rates.

12. Confidentiality

12.1 Obligations

Each party must keep the Confidential Information of the other party confidential. No party may use, disclose or permit access to the Confidential Information of any other party for any purpose other than that which the information was disclosed.

12.2 Exclusions

The obligations of confidence under clause 12.1 do not apply to any information that:

(a) is in the public domain (other than through any breach of this document);

(b) the receiving party can prove was known to it at the time of disclosure by the disclosing party, free from any obligation of confidence; or

12.3 Survival of obligations

The obligations of confidentiality under this deed are ongoing and survive any expiration or termination of this deed.

12.4 Permitted disclosure

Each party may only disclose another party’s Confidential Information to those of its employees, contractors or professional advisers who need to know the information and who are aware of the confidential nature of the information.

12.5 Public statements

No party may make any public statement or make any representation in relation to this document or any part to it without the prior written consent of the other, unless required by Law or from the direction of a relevant stock exchange.

13. Notices

13.1 Notice requirements

Any notice, demand, approval, consent or other communication under this agreement (Notice) must be in writing in English or accompanied by a certified translation into English and must be:

(a) delivered personally;

(b) sent by facsimile; or

to a party at:

(d) the address of the party set out in clause 13.3 (Nominated Contact Details); or

(e) such other contact details as the party may from time to time notify to the other party for the purposes of, and in accordance with, this clause

13.2 When Notices considered given and received

A Notice given in accordance with clause 13.1 takes effect when received (or such later time as specified in it), and is taken to be received:

(a) if hand delivered, on delivery;

(b) if sent from and to a place within Australia by regular post, at 9:00 am on the sixth Business Day after the date of posting;

(c) if sent from a place within Australia to a place outside Australia by airmail, at 9.00 am on the tenth Business Day after the date of posting;

(d) if sent from a place outside Australia by airmail, at 9.00 am on the twelfth Business Day after the date of posting;

(e) if sent by facsimile, when the sender’s facsimile system generates a message confirming successful transmission of the total number of pages of the Notice, unless within four business hours (being a period of time between 9.00 am and 5.00 pm on a Business Day) after the transmission, the recipient informs the sender that it has not received the entire Notice,

but if the delivery, receipt or transmission is not on a Business Day or is after 5.00 pm on a Business Day, the Notice is taken to be received at 9.00 am on the next Business Day after that delivery, receipt or transmission.

13.1 Nominated Contact Details

For the purposes of this clause 13:

(a) the Nominated Contact Details of the Company are as follows:

Name:

ACN:

Address:

Contact name:

Telephone:

Facsimile

Email:

Cherry Hub Pty Ltd

642 144 992

Tower 1, Level 35, 100 Barangaroo Avenue, Sydney NSW 2000

Frank Makryllos

+61 (02) 9121 5005

N/A

accounts@cherryhub.com.au

(b) the Nominated Contact Details of the Partner are as follows.

Name:

ACN:

Address:

Contact name:

Telephone:

Facsimile

Email:

ClubsNSW

61 724 302 100

Level 8, 51 Druitt Street, Sydney NSW 2000

Luke Bucciarelli

1300 730 001

N/A

lbucciarelli@clubsnsw.com.au

14. Disputes

14.1

(a) Subject to clause 14.1(b), before court or arbitration proceedings are commenced, the parties must endeavour to settle any dispute that arises out of or in connection with this agreement (including as to its existence, validity, breach or termination or as to any claim in tort, in equity or pursuant to any statute) in accordance with this clause.

(b) A party may seek interim or urgent interlocutory relief at any time.

14.2

A party claiming that a dispute has arisen must give a notice in writing to the other party setting out the nature of the dispute (Dispute Notice)

14.3

Within three Business Days of receipt of the Dispute Notice (or such other period agreed by the parties to the dispute), the dispute must be referred to the senior executives nominated by each of the parties, who must meet and use their reasonable endeavours to resolve the dispute.

14.4

If the dispute is not resolved within 15 Business Days after receipt of the Dispute Notice (or such other period agreed by the parties to the dispute), the parties must refer the dispute to the Resolution Institute for mediation in accordance with the then current edition of the Rules of the Resolution Institute (Rules).

14.5

The terms of the Rules are deemed to be incorporated into this agreement.

14.6

Pending resolution of any dispute, the parties must continue to perform their obligations under this agreement without prejudice to their respective rights and remedies (except where such obligations are the subject of the dispute).

14.7

If the dispute is not resolved by the mediation within 30 Business Days after receipt of the Dispute Notice, either party may commence court or arbitration proceedings as the case may be.

14.8

This clause 14 will survive termination of this agreement.

15. General

15.1 Assignment

(a) Either party may not assign or otherwise deal with any of its rights under this agreement, without the prior written consent of the other party (which consent must not be unreasonably withheld or delayed).

(b) An assignment in breach of clause 15.1(a) is intended by the parties to be void and of no force and effect.

15.2 Variation

A variation of any term of this agreement will be of no force or effect unless it is in writing and signed by each of the parties.

15.3 Costs and expenses

Each party must pay its own costs (including legal costs) and expenses in connection with the negotiation, preparation, execution and delivery of this agreement.

15.4 Waiver

(a) A waiver of a right, remedy or power must be in writing and signed by the party giving the waiver.

(b) A party does not waive a right, remedy or power if it delays in exercising, fails to exercise or only partially exercises that right, remedy or power.

(i) is only effective in relation to the particular obligation or breach in respect of which it is given and is not to be construed as a waiver of that obligation or breach on any other occasion; and

(ii) does not preclude that party from enforcing or exercising any other right, remedy or power under this agreement nor is it to be construed as a waiver of any other obligation or breach.

15.5 Severance

If a provision in this agreement is wholly or partly void, illegal or unenforceable in any relevant jurisdiction that provision or part must, to that extent, be treated as deleted from this agreement for the purposes of that jurisdiction. This does not affect the validity or enforceability of the remainder of the provision or any other provision of this agreement.

15.6 Governing law and jurisdiction

(a) This agreement is governed by and is to be construed under the laws in force in the State of New South Wales, Australia.

(b) Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in New South Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process in these courts on the basis that the process has been brought in an inconvenient forum.

15.7 Further assurances

Each party must, at its own expense, do all things and execute all further documents necessary to give full effect to this agreement and the transactions contemplated by it.

15.8 No reliance

Neither party has relied on any statement by the other party which has not been expressly included in this agreement.

15.9 Entire agreement

This agreement states all of the express terms of the agreement between the parties in respect of its subject matter. It supersedes all prior discussions, negotiations, understandings and agreements in respect of its subject matter.

15.10 Counterparts

(a) This agreement may be executed in any number of counterparts, each signed by one or more parties. Each counterpart when so executed is deemed to be an original and all such counterparts taken together constitute one document.

(b) A party that has executed a counterpart of this agreement may exchange that counterpart with another party by faxing or emailing it to the other party or the other party’s legal representative and, if that other party requests it, promptly delivering that executed counterpart by hand or post to the other party or the other party’s legal representative. However, the validity of this agreement is not affected if the party who has faxed or emailed the counterpart delays in delivering or does not deliver it by hand or by post.

15.11 Relationship of parties

(a) The parties are not and are not to be taken to be in a partnership, joint venture, employment or fiduciary relationship.

(b) The Partner is not an agent of the Company. Nothing in this agreement gives a party authority to bind any other party in any way.

15.12 Exercise of rights

(a) Unless expressly required by the terms of this agreement, a party is not required to act reasonably in giving or withholding any consent or approval or exercising any other right, power, authority, discretion or remedy, under or in connection with this agreement.

(b) A party may (without any requirement to act reasonably) impose conditions on the grant by it of any consent or approval, or any waiver of any right, power, authority, discretion or remedy, under or in connection with this agreement. Any conditions must be complied with by the party relying on the consent, approval or waiver.

15.13 Remedies cumulative

Except as provided in this agreement and permitted by law, the rights, powers and remedies provided in this agreement are cumulative with and not exclusive of the rights, powers or remedies provided by law independently of this agreement.

15.14 Clauses that survive termination

Without limiting or impacting upon the continued operation of any clause which as a matter of construction is intended to survive the termination or expiry of this agreement, clauses 6, 9, 10, 11, 12 and this clause 15.14 survive the termination or expiry of this agreement and do not merge on completion.