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Pathzero Master Services Agreement Terms and Conditions

Effective from 14 July 2022

Pathzero Master Services Agreement Terms and Conditions


This document sets out the terms and conditions applicable to the provision of consulting services by Pathzero Pty Ltd (Pathzero, we, us or our).


1.    Defined terms & interpretation
1.1    Defined terms

In this document:

Agreement
is defined in clause 1.4(a).

Agreement Materials
is defined in clause 5(d).

Assigned Materials
are as described in the Quote.

Background Materials
is defined in clause 5(a).
Business Day means:


(a)    for receiving a notice under clause 16, a day that is not a Saturday, Sunday, public holiday or bank holiday in the place where the notice is received; and

(b)    for all other purposes, a day that is not a Saturday, Sunday, bank holiday or public holiday in Sydney, Australia.

Commencement Date means the date on which the last of Pathzero and the Customer signs the Quote.

Conditions
means clauses 1 to 18 (inclusive) of this document, and includes alterations (including additions) from time to time. 

Confidential Information
of a Disclosing Party means:


(a)    the following information, regardless of its form and whether the Receiving Party becomes aware of it before or after the date of this Agreement:

(i)    information that is by its nature confidential;

(ii)    information that is designated by the Disclosing Party as confidential; and

(iii)    information the Receiving Party knows, or ought to know, is confidential;

(b)    all notes and other records prepared by the Receiving Party based on or incorporating information referred to in paragraph (a); and

(c)    all copies of the information, notes and other records referred to in paragraphs (a) and (b), 
but in all cases excludes information that:

(d)    the Receiving Party creates (whether alone or jointly with any third person) independently of the Disclosing Party; or

(e)    is public knowledge (otherwise than as a result of a breach of confidentiality by the Receiving Party or any of its permitted discloses).


Customer, you or your means the customer identified in the Quote.

Customer Materials
is defined in clause 5(b).

Disclosing Party
means a party to this Agreement who discloses or makes available

Confidential Information to the Receiving Party.

End Date means the end date specified in the Quote.

Force Majeure Event
is defined in clause 15.

Insolvency Event
means any of the following events:

(a)    a party disposes of the whole or any part of its assets, operations or business other than in the ordinary course of business;

(b)    a party ceases to carry on business;

(c)    a party ceases to be able to pay its debts as they become due;

(d)    any step is taken by a mortgagee to take possession or dispose of the whole or any part of a party's assets, operations or business;

(e)    any step is taken to enter into any arrangement between a party and its creditors; or

(f)    any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other like person of the whole or any part of a party's assets or business.

Intellectual Property Rights means all intellectual property rights, including the following rights: 


(a)    patents, copyright (including future copyright), rights in circuit layouts, designs, trade and service marks (including goodwill in those marks), domain names and trade names and any right to have confidential information kept confidential; 

(b)    any application or right to apply for registration of any of the rights referred to in paragraph (a); and 

(c)    all rights of a similar nature to any of the rights described in (a) and (b) that may subsist anywhere in the world (including Australia), 


whether or not such rights are registered or capable of being registered.


IPR Claim is defined in clause 11(a).

Law means any statute, regulation, by-law, ordinance or subordinate legislation in force from time to time, the common law and equity, and any binding industry codes of conduct, each to the extent applicable this Agreement.

Quote means a quotation between you and Pathzero for Pathzero consulting services.

Receiving Party means a party to this Agreement who obtains Confidential Information of the other party to this Agreement.

Services means the services described in the Quote.

1.2    Interpretation

In this agreement, unless otherwise stated, or where the context otherwise requires:


(a)    the singular includes the plural and vice versa, and a gender includes other genders;

(b)    another grammatical form of a defined word or expression has a corresponding meaning;

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

(d)    a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;

(e)    a reference to A$, $A, dollar or $ is to Australian currency;

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

(g)    a reference to a party is to a party to this agreement, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes;

(h)    a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity; 

(i)    a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

(j)    the meaning of general words is not limited by specific examples introduced by including, for example, such as or similar expressions;

(k)    any agreement, representation, warranty or indemnity in favour of two or more persons (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;

(l)    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 it; and 

(m)    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.

1.3    Headings

Headings are for ease of reference only and do not affect interpretation.

1.4    Agreement and order of precedence


(a)    This agreement is comprised of:


(i)    these Conditions; and
(ii)    the Quote,
(Agreement).


(b)    If there is an inconsistency between the Quote and the Conditions, then:

(i)    the Quote will prevail but only to the extent that it is expressly stated to override specific provisions of these Conditions; and
(ii)    in all other cases, these Conditions will prevail to the extent of that inconsistency.

2.    Term of this Agreement

This Agreement begins on the Commencement Date and, unless terminated earlier in accordance with clause 13, ends on the End Date, or, if no End Date is specified, on the date we complete the Services specified in the Quote.

3.    Our Services 

3.1    Performance of Services


(a)    We will:

(i)    perform the Services specified in the Quote; 

(ii)    perform the Services in a professional manner with due care and skill;

(iii)    ensure that appropriately qualified personnel undertake the performance of the Services;

(iv)    subject to paragraph (b), use reasonable endeavours to supply the Services in accordance with delivery times (if any) outlined in the Quote, or as otherwise agreed from time to time.

(b)    Any times stated by us for the provision of the Services are estimates only.  We do not guarantee that provision of the Services will be within the times set out in this Agreement or otherwise agreed between the parties.  To the maximum extent permitted by Law, we will have no liability whatsoever if delivery of the provision of the Services is delayed for any reason (including due to circumstances beyond our control).  In no circumstances will delay in delivery amount to, or be deemed to be, a breach of this Agreement.  

4.    Your obligations
4.1    Provide access and information


(a)    If we perform Services at your premises, you must provide us with all office and facilities (including computer and network facilities) that we may reasonably require to perform the Services.  You must also provide us with copies of all relevant policies with which you want us to comply (such as workplace health and safety and computer security policies).

(b)    If your personnel are to attend at our premises, you must ensure that your personnel comply with our policies provided to you, including (without limitation) our workplace health and safety and computer security policies.

(c)    You must ensure that appropriate backup, security and virus checking procedures are in place in relation to any computer facilities that you provide.  

(d)    You must provide all information and materials reasonably required, and in sufficient detail, to enable us to perform the Services.  We will not be liable for any loss or damage arising from reliance on, or from any inaccuracy or other defect in, any information or materials supplied by you.

4.2    Your assistance

(a)    You must provide:

(i)    all reasonable assistance; and
(ii)    such appropriately qualified personnel as are reasonably necessary,
to enable us to perform our obligations and meet our responsibilities under this Agreement.

(b)    You will be responsible for ensuring that your personnel have the appropriate skills and experience.  If any of your personnel fail to perform as required, you must ensure that, on request by us, additional or alternative personnel with appropriate skills and experience are made available.

4.3    Compliance with Laws

You must, at all times, comply with all applicable Laws (including applicable workplace health and safety, privacy and data protection and anti-fraud and corruption laws) in connection with this Agreement.

5.    Intellectual Property Rights


(a)    Nothing in this Agreement operates in any way to assign or transfer to you any rights, title and interest (including any Intellectual Property Rights) in materials created by us (or a third party) prior to their use in our provision of the Services to you or independently of this Agreement, including any updates, upgrades, enhancements, improvements or new versions of any such materials (collectively, Background Materials).

(b)    We agree that you will retain all rights, title and interest (including all Intellectual Property Rights) in any materials that you make available to us for the purposes of performing the Services (Customer Materials).  You grant to us a non-exclusive licence (including the right to sub-license to our subcontractors) to use, reproduce and modify the Customer Materials for the purposes of performing the Services. 

(c)    Subject to paragraph (a), we assign to you all rights, title and interest (including all Intellectual Property Rights) in any materials specifically designated in the Quote as 'Assigned Materials'.  You grant to us a non-exclusive, perpetual, irrevocable, sub-licensable licence to use and otherwise exploit the Assigned Materials.     

(d)    Except in relation to any Assigned Materials:

(i)    all rights, title and interest (including all Intellectual Property Rights) in any materials created by us in the course of providing the Services (Agreement Materials) are and will remain vested in us; and

(ii)    we grant you a non-exclusive, perpetual, irrevocable, sub-licensable licence to use:

(A)    the Agreement Materials; and

(B)    the Background Materials (but only to the extent incorporated into the Agreement Materials),
for your internal business purposes, and such other purposes as may be agreed in writing by us from time to time.

(e)    Notwithstanding any other provision of this Agreement:

(i)    we are free to use any information in a non-tangible form that may be retained in the unaided memory of our personnel who have been in any way involved in the performance of the Services, including (without limitation) general knowledge, skills, ideas, concepts, tools, techniques, methodologies and know-how; and

(ii)    we will not be prevented in any way from developing and using any ideas, concepts, tools, techniques, methodologies and know-how relating to methods or processes of general application. 

(f)    For the avoidance of doubt, this clause 4 does not apply in any way to the Pathzero hosted software application which is provided pursuant to separate subscription agreement terms and conditions.

6.    Marketing

(a)    You agree that we can publicly refer to you as our customer or include you in customer lists and use your name, trade name, trade marks and logo for this purpose.

(b)    Subject to paragraph (a), we will seek your approval in writing prior to referring to you in any marketing material.

7.    Fees


(a)    You must pay us the fees and expenses set out in the Quote (Fees).  The Fees:

(i)    must be paid in Australian dollars; and 

(ii)    exclude GST and all other applicable taxes, 
unless otherwise specified in the Quote.

(b)    You must pay the Fees within 30 days from the date of any invoice issued to you.

(c)    If any amount payable by you to us under this Agreement is not paid when due, we may do any one or more of the following:

(i)    charge you interest on the unpaid amount, calculated daily at the rate of 1% greater than the Commonwealth Bank of Australia's business lending rate then applying; 

(ii)    recover from you (as a debt due) any and all reasonable expenses (including legal costs on a solicitor and own client basis, and contingent expenses such as debt collection commission) incurred by us in recovering monies due from you;

(iii)    suspend the performance of the Services (without prior notice to you); 

(iv)    vary the timing for the performance of Services until after you have paid us any amounts then outstanding; and/or 

(v)    require advance payment to perform the Services (including any amounts that would become payable to us on or after the completion of this Agreement).

8.    GST
8.1    Defined terms

In this clause 8, a word or expression defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the meaning given to it in that Act.

8.2    GST inclusive amounts

For the purposes of this Agreement, where the expression GST inclusive' is used in relation to an amount payable or other consideration to be provided for a supply under this Agreement, the amount or consideration will not be increased on account of any GST payable on that supply.

8.3    Consideration GST exclusive

Any consideration to be paid or provided for a supply made under or in connection with this Agreement, unless specifically described in this Agreement as 'GST inclusive, does not include an amount on account of GST.

8.4    Gross up of consideration

Despite any other provision in this Agreement, if a party (Supply Maker) makes a supply under or in connection with this Agreement on which GST is imposed (not being a supply the consideration for which is specifically described in this Agreement as GST inclusive):

(a)    the consideration payable or to be provided for that supply under this Agreement but for the application of this clause (GST exclusive consideration) is increased by, and the recipient of the supply (Recipient) must also pay to the Supply Maker, an amount equal to the GST payable by the Supply Maker on that supply; and

(b)    the amount by which the GST exclusive consideration is increased must be paid to the Supply Maker by the Recipient without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.

8.5    Reimbursement (net down)

If a payment to a party under this Agreement is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense.

9.    Confidentiality and privacy
9.1    Use and disclosure

A Receiving Party:

(a)    may use Confidential Information of the Disclosing Party only for the purposes of this Agreement; and

(b)    must keep confidential all Confidential Information of the Disclosing Party except:

(i)    for disclosures permitted under this clause 9; and

(ii)    to the extent (if any) the Receiving Party is required to disclose any Confidential Information by law.

9.2    Use and disclosure of Confidential Information

A Receiving Party may disclose Confidential Information of the Disclosing Party to persons who:

(a)    have a need to know for the purposes of this Agreement (and only to the extent that each has a need to know); and

(b)    before disclosure:

(i)    in the case of the Receiving Party's officers and employees, have been directed by the Receiving Party to keep confidential all Confidential Information of the Disclosing Party; and

(ii)    in the case of other persons, have agreed in writing with the Receiving Party to comply with substantially the same obligations in respect of Confidential Information of the Disclosing Party as those imposed on the Receiving Party under this Agreement,
(each a Direction).

9.3    Receiving Party's obligations

A Receiving Party must:


(a)    ensure that each person to whom it discloses Confidential Information of the Disclosing Party under clause 9.2(b) complies with its Direction; and

(b)    notify the Disclosing Party of, and take all steps to prevent or stop, any suspected or actual breach of a Direction.

9.4    Disclosure required by law

If a Receiving Party is required by law to disclose any Confidential Information of a Disclosing Party to a third person (including government) the Receiving Party must:


(a)    before doing so:


(i)    notify the Disclosing Party; and

(ii)    give the Disclosing Party a reasonable opportunity to take any steps that the Disclosing Party considers necessary to protect the confidentiality of that information; and


(b)    notify the third person that the information is confidential to the Disclosing Party.

9.5    Compliance with privacy laws


(a)    Disclosure by you of personal information to us in connection with the Services or this Agreement may be subject to the Privacy Act 1988 (Cth) (Privacy Act).  Accordingly, the Services are provided on the basis that you will only disclose personal information (as defined in the Privacy Act) to us where:

(i)    the disclosure is for a purpose related to the performance of the Services;

(ii)    you have obtained all consents required to be obtained under the Privacy Act; and

(iii)    to do so would not otherwise breach the Privacy Act.

(b)    If the performance of the Services requires a third party to provide personal information to us at your request, it is your obligation to ensure that the third party complies with paragraphs (a)(i) to (a)(iii) above, and you indemnify us against any claim, loss or expense resulting from your failure to do so or to otherwise comply with the Privacy Act.

(c)    Without limiting paragraphs (a) and (b), each party agrees that, to the extent that they come into possession of any personal information in the course of exercising their rights or performing their obligations under this Agreement, they will comply with the provisions of the Privacy Act 1988 (Cth) in respect of that personal information.

10.    Exclusion and limitation of liability


(a)    To the extent that you acquire goods or services from us as a consumer within the meaning of Schedule 2 of the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law), you may have certain rights and remedies (including, without limitation, consumer guarantee rights) that cannot be excluded, restricted or modified by agreement.  

(b)    Nothing in this clause 10 operates to exclude, restrict or modify the application of any condition, warranty or provision implied by law, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law or any other statute, where to do so would:

(i)    contravene that statute; or

(ii)    cause any term of this Agreement to be void,
(Non-excludable Obligation).

(c)    To the extent permitted by law, our liability in respect of Non-excludable Obligations is limited to:

(i)    the repair or, if necessary, the replacement of, the goods; and

(ii)    the supplying again of any services supplied under this Agreement.

(d)    Except in relation to Non-excludable Obligations, your liability to pay Fees, and your breach of any of the licences granted to you under this Agreement: 

(i)    all conditions, warranties, guarantees, rights, remedies, liabilities or other terms that may be implied or imposed by custom, under the general law or by statute are expressly excluded under this Agreement; and

(ii)    each party's (Liable Party) liability to the other (Claiming Party) arising directly or indirectly under or in connection with this Agreement (and whether arising under any statute, in tort (for negligence or otherwise), or on any other basis in law or equity), is limited as follows:

(A)    the Liable Party excludes all liability for loss of revenue, loss of goodwill, loss of customers, loss of capital, downtime costs, loss of profit, loss of or damage to reputation, loss under or in relation to any other contract, loss of data or loss of use of data, loss of anticipated savings or benefits, or any indirect, consequential or special loss, damage, cost or expense or other claims for consequential compensation, incurred by or awarded against you in relation to the Product or under or in any way connected with this Agreement; and

(B)    the Liable Party's total aggregate liability to the Claiming Party, is otherwise limited to the amounts paid by you to us under this Agreement in the 12 months immediately preceding the date on which the claim giving rise to such liability arose.

11.    Indemnity


(a)    Subject to this clause 11, we indemnify you against any and all liability, loss, damages and costs (including reasonable legal costs) that you are required to pay to a third party by way of a final court judgement or settlement approved by us, arising out of or resulting from any claim by a third party that your use of the Assigned Materials, Agreement Materials or Background Materials in accordance with the provisions of this Agreement infringes that third party's Intellectual Property Rights (an IPR Claim).

(b)    We will not indemnify you under paragraph (a) unless you:

(i)    notify us in writing as soon as practicable of the IPR Claim having been made or brought against you;

(ii)    give us the option to conduct the defence and settlement of the IPR Claim and do not make any admissions or otherwise attempt to settle or compromise the IPR Claim except on the express instructions of us;

(iii)    provide us with reasonable assistance (at our expense) in conducting the defence or settlement of the IPR Claim; and

(iv)    permit us to:

(A)    modify or substitute the infringing part of the Assigned Materials, Agreement Materials or Background Materials (at our expense) so that it becomes non-infringing without suffering a material adverse effect on performance or functionality; or 

(B)    obtain for you the right to continue to use the infringing Assigned Materials, Agreement Materials or Background Materials.

(c)    You agree that if we are unable (despite applying its commercially reasonable endeavours) to remedy the IPR Claim as contemplated in paragraph (b)(iv), we may terminate the Agreement (including any and all licences) and your final and sole remedy will be for us to refund any pre-paid Fees that are affected by the termination of the Agreement (including any licences).

(d)    We will not indemnify you under paragraph (a) to the extent that the IPR Claim arises from the:

(i)    use of the Services provided to you with other products not supplied by us if such infringement would have been avoided by the use of the Services without such other products; 

(ii)    use of the Services provided to you in a manner or for a purpose not reasonably contemplated or authorised by us; or

(iii)    modification of any Services provided to you by you (or on your behalf). 

(e)    The indemnity in paragraph (a) is your sole remedy against us (whether under the Agreement or otherwise) in connection with any IPR Claim.

12.    Warranties
12.1    Mutual warranties

Each party warrants to other that:


(a)    it is authorised to enter into this Agreement; and

(b)    it has full power to carry out its obligations under this Agreement.

12.2    Our warranties to you

We warrant that we have the:


(a)    skills;

(b)    expertise;

(c)    knowledge; and 

(d)    experience,

to provide the Services to you under this Agreement.

13.    Termination
13.1    Termination for cause

Either party (Terminating Party) may terminate this Agreement immediately by telling the other party (Breaching Party) in writing if the Breaching Party:


(a)    breaches any term of this Agreement that is not capable of remedy;

(b)    breaches any term of this Agreement that is capable of remedy and fail to rectify that breach within twenty Business Days of receiving a notice from the Terminating Party requiring the Breaching Party to do so; or

(c)    suffers an Insolvency Event (subject to any applicable statutory stay on the exercise of rights, including under sections 415D, 434S or 451E of the Corporations Act 2001 (Cth)).

13.2    Rights and obligations on expiry or termination 

On termination of this Agreement:

(a)    you must:

(i)    pay to us all Fees that are due and payable to us as at the date of termination; and

(ii)    return all materials, information (including any Confidential Information) and documentation provided to you by us in relation to, or for the purposes of, this Agreement; and

(b)    we may:

(i)    retain any moneys paid; 

(ii)    charge a reasonable sum for work performed for which no sum has previously been charged; and

(iii)    be regarded as discharged from any further obligations under this Agreement.

13.3    Accrued rights and remedies

Termination of this Agreement does not affect any of our accrued rights or remedies.

14.    Subcontracting

We may subcontract the performance of this Agreement or any part of this Agreement.

15.    Force majeure 

The non-performance or delay in performance by a party of any obligation in this Agreement is excused during the time and to the extent that performance is prevented by a circumstance or event beyond its reasonable control (Force Majeure Event), provided that the party affected by the Force Majeure Event takes reasonable steps to mitigate the impact of the Force Majeure Event on the performance of its obligations.  This clause 15 does not apply to any obligation to pay money.

16.    Notices and communications
16.1    Service of notices

A notice, demand, consent, approval or communication under this Agreement (Notice) must be:

(a)    in writing, in English and signed by a person duly authorised by the sender; and

(b)    hand delivered or sent by prepaid express post or email to the recipient’s address for Notices specified in the Quote, as varied by any Notice given by the recipient to the sender.

16.2    Effective on receipt

A Notice given in accordance with clause 16.1 takes effect when taken to be received (or at a later time specified in it):


(a)    if hand delivered, on delivery;

(b)    if sent by prepaid express post, on the third Business Day after the date of posting (or on the tenth Business Day after the date of posting if posted from a different country to the country of its destination); or

(c)    in the case of email, on the first to occur of:

(i)    receipt by the sender of an email acknowledgement from the recipient’s information system showing that the Notice has been delivered to the email address stated in the Quote;

(ii)    the time that the Notice enters an information system that is under the control of the recipient; and

(iii)    the time that the Notice is first opened or read by the intended addressee,
however, if the sender receives an out of office reply that states the recipient is out of the office until a later date, the notice will only be taken to be given on that later date,
but if the delivery, receipt or transmission is not on a Business Day or is after 5.00pm on a Business Day, the Notice is taken to be received at 9.00am on the next Business Day.

16.3    Notices that must not be sent by email

A Notice may not be send by email if the Notice relates to termination of this Agreement.

17.    Dispute resolution
17.1    No court proceedings unless procedure followed

A party must not commence proceedings (except proceedings seeking interlocutory relief) unless it has complied with this clause 17.

17.2    Notice of Dispute

A party claiming that a dispute, difference or question arising out of this Agreement, including a question as to whether certain services are in scope or not, has arisen (Dispute) must give the other party notice of the details of the Dispute (Dispute Notice).

17.3    Negotiated resolution

(a)    When a Dispute Notice is given, each party's representatives must meet and attempt to resolve the Dispute.

(b)    If the parties' representatives cannot resolve the Dispute, then the parties' immediate managers must meet and attempt to resolve the Dispute.

(c)    If the immediate manager's meet and cannot resolve the Dispute, then the parties' chief executive officers (or their nominee) must meet and attempt to resolve the Dispute.

17.4    Mediation

If the chief executive officers (or their nominees) cannot resolve the Dispute under clause 17.3 within sixty (60) days (or longer period as agreed between the parties), then the parties must refer the Dispute for mediation by the Australian Commercial Dispute Centre Limited for resolution in accordance with the Conciliation Rules of the Australian Commercial Dispute Centre.

17.5    Court proceedings if procedure fails

If the parties cannot resolve a Dispute in accordance with the escalation procedure in clauses 17.3 and 17.4, then any party may commence court proceedings.

17.6    Release if other party breaches

If a party breaches this clause 17 in relation to a Dispute, then the other party need not comply with this clause 17 in relation to that Dispute.

17.7    Obligations continue

The parties must continue to perform their respective obligations under this Agreement pending the resolution of a Dispute.

17.8    Costs

Each party must pay its own costs of complying with this clause 17.

18.    Miscellaneous
18.1    Alterations

This Agreement may be altered only in writing signed by each party.

18.2    Assignment and novation

You must not assign this Agreement (or any right under it) or purport to novate any of your obligations under this Agreement to another person without our prior written consent.

18.3    Costs

Each party must pay its own costs of negotiating, preparing and executing this Agreement.


18.4    Stamp duty

Any stamp duty, duties or other taxes of a similar nature (including fines, penalties and interest) in connection with this Agreement or any transaction contemplated by this Agreement must be paid by you.

18.5    Execution and counterparts

(a)    Where a person purports to execute the Agreement for you or on your behalf, that person warrants and represents on your behalf that he or she has actual authority to bind you to this Agreement.

(b)    This Agreement (on the Quote) may be executed in counterparts. All executed counterparts constitute one document.

18.6    Further action

Each party must do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to this Agreement and any transaction contemplated by it.

18.7    Severability

A term or part of a term of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining terms or parts of the terms of this Agreement continue in force.

18.8    Waiver

A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.

18.9    Relationship

Except where this Agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.

18.10    Governing law and jurisdiction

This Agreement is governed by the laws of New South Wales, Australia and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales, Australia.

18.11    Entire agreement

This Agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.

18.12    Survival

Any term by its nature intended to survive termination of this Agreement survives termination of this Agreement, including clauses 9, 10, 11, 13.2, 17 and this clause 18.