Service Agreement

TERMS AND CONDITIONS

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

“ACL” means the Australian Consumer Law.

“Agreement” means this document, including the Schedule, all Attachments and any document expressly incorporated by reference.

“Business Day” means a day which is not a Saturday, Sunday, bank or public holiday in the Australian Capital Territory and the location of the Customer’s registered office.

“Claim” includes any claim, demand, loss, expense, remedy, suit, injury, damage, loss, cost, liability, action, fine, penalty, proceeding, right of action or claim for compensation whether made by a party to this Agreement or otherwise.

“Confidential Information” means the terms of this Agreement and information of whatever nature received or obtained as a result of negotiating, entering into or performing this Agreement which:

(a) relates to the existence of this Agreement or the Services;

(b) is information that is marked as confidential or would reasonably be understood as being confidential and which pertains to either party (or its related bodies corporate) and their business operations, including trade secrets, robot operating and maintenance manuals, instructions and procedures, customer and supplier information, procedures, property, financial and operational information or know how; and

(c) material or information derived from the above.

“Force Majeure Event” means any circumstance not within the reasonable control of the party affected by it, including acts of God, natural disasters, floods, fires, explosions, epidemics or pandemics and government restrictions and orders imposed in respect of same, industrial disputes, war, riots or civil disturbances, inability or delay to obtain equipment or labour from suppliers despite reasonable commercial efforts not caused by the affected party, failure of communications networks or other outages affecting the Services and acts of governments, provided always that failure to pay an amount for any reason can never be a Force Majeure Event.

“GST” means any applicable goods and services tax imposed on the sale or supply of goods, services and rights, including but not limited to a tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 (Aus) and Goods and Services Tax Act 1985 (NZ).

“Insolvency Event” means any of the following events in relation to a party:

(a) the party is unable to pay its debts as they fall due; the party informs the other in writing or informs creditors generally or passes a resolution to the effect that it is insolvent or is likely to become insolvent or the party is deemed to be insolvent under any legislation;

(b) the party has a liquidator, provisional liquidator, administrator, insolvency officer or any other similar official appointed to it or has a receiver, receiver and manager or other controller or similar official appointed over all its property or a material part of its property;

(c) any charge, mortgage or encumbrance is enforced or exercised against any material asset of the party;

(d) the party has an application made to the court for its winding up and such application is not withdrawn or dismissed within 10 Business Days;

(e) the party ceases to carry on its business or a material part of it, or threatens to do either of those things without the prior written consent of the other party (which consent may not be unreasonably withheld); the bankruptcy of a party;

(f) the party has a winding up order made against it, is deregistered, dissolved or has any steps taken against it to enforce a judgment of a court or arbitral award; or

(g) the party has something having substantially similar effect to any of the events specified above occur in any jurisdiction.

“Intellectual Property” or “IP” means all present and future rights conferred by law in or in relation to intellectual property, including copyright, rights in relation to circuit layouts, patents, designs, know-how, trademarks, whether registered or unregistered, and any other rights resulting from intellectual activity in the industrial, scientific, literary and artistic fields recognised in domestic law anywhere in the world, whether registered or unregistered.

“OhmniLabs” means OhmniLabs, Inc., a Delaware Corporation with offices at 2367 Bering Dr, San Jose, CA 95131 USA.

“Personal Information” has the meaning given in the Privacy Act 1988 (Cth) and includes ‘sensitive information’ as defined therein.

“Personnel” means an employee, director, contractor, subcontractor or agent of a party.

“Software” means the software necessary to use the Equipment, including any updates, variations, modifications and enhancements issued from time to time

“User” means a user of the Services authorised by the Customer.

1.2 Interpretation

In this Agreement:

(a) capitalised terms defined in the Schedule have the meaning given in the Schedule;

(b) words importing the singular include the plural and vice versa; the word person includes a firm, a body corporate, an unincorporated association or governmental authority;

(c) headings are for convenience only and do not affect construction or interpretation;

(d) a reference to any person includes a reference to the person's successors, substitutes (including without limitation, persons taking by novation) and assigns;

(e) an agreement, representation or warranty on the part of or in favour of two or more persons binds or is for the benefit of them jointly and severally;

(f) reference to any law or legislation means any common law, statute, act or code of any jurisdiction and the regulations or legislative instruments made thereunder;

(g) a rule of construction will not apply against a party merely because that party was responsible for drafting this Agreement or any part of it; and

(h) the meaning of general words is not limited by specific examples introduced by “including”, “for example” or similar expressions.

2. TERM

This Agreement continues for the Term specified in the Schedule unless terminated earlier in accordance with this Agreement (the “Initial Term”). From the end of the Initial Term, this Agreement will automatically roll over for additional periods of 12 months terminable by either party giving at least 30 days’ written notice to the other.

3. THE SERVICES

3.1 Provision of Services

R4G agrees to provide the Services to the Customer, and the Customer accepts the Services and agrees to pay the Fees, on and subject to the terms and conditions in this Agreement.

3.2 Performance standards

R4G will:

(a) perform the Services:

(i) in a professional manner with a degree of care, competence and diligence expected of a service provider experienced in the provision of the Services;

(ii) in accordance with this Agreement and all applicable laws;

(iii) using appropriately skilled, licensed and experienced Personnel;

(iv) in accordance with any reasonable and lawful directions given by the Customer;

(b) supply to the Customer the Software and Equipment in accordance with this Agreement;

(c) provide scheduled maintenance on the Equipment and repair or replace any Equipment which becomes inoperable, damaged, lost or destroyed or sustains other faults or defects during the Term in accordance with Attachment 1;

(d) obtain at its own cost all authorisations, licenses and approvals necessary for it to perform the Services and maintain them in force for the Term; and

(e) use its best endeavours to meet or exceed the Service Levels set out in Attachment 2.

3.3 The Equipment

The Equipment is the sole property of R4G and legal title to and ownership of the Equipment will remain vested in R4G. Neither the Customer nor any User has any rights or interest in the Equipment other than as stated in this Agreement.

3.4 Customer obligations

The Customer must comply, and ensure that Users comply, with the obligations and processes imposed on the Customer and each User in Attachment 1.

3.5 Amendments to Services

If R4G becomes aware of any matter which may change the scope or timing of any Services, it will provide the Customer with reasonable written notice in relation to the change and use reasonable endeavours to substitute the discontinued Service or Equipment, or refund monies already paid for Materials or Equipment not provided.

3.6 Workplace Health and Safety

(a) The Customer and R4G must:

(i) comply with, and ensure their respective Personnel comply with, all applicable laws relating to work, health and safety in connection with the Services;

(ii) take steps to ensure, so far is reasonably practicable, the health and safety of each party’s Personnel, Users and other persons connected with the Services; and

(iii) notify the other party promptly after the occurrence of any death or serious injury or illness of a person, or dangerous incident, occurring in the performance of the Services.

(b) The Customer agrees, and will use reasonable endeavours to ensure that its Personnel and all Users acknowledge and agree, that the Equipment is not, and must not be regarded as, a telecommunications safety device or similar.

3.7 Subcontracting

R4G may subcontract any or all of the Services. If R4G engages a subcontractor, R4G will remain responsible for all acts and omissions of the subcontractor as if they were acts and omissions of R4G.

3.8 Users

The Customer is responsible for all acts and omissions of each User as if they were the acts and omissions of Customer.

4. INTELLECTUAL PROPERTY

4.1 Background IP

(a) Nothing in this Agreement constitutes an assignment or transfer of ownership of a party’s pre-existing IP rights to the other party.

(b) Each party grants to the other, for the Term, a non-exclusive, non-transferable, revocable, royalty-free licence to use each other’s pre-existing IP solely for the purpose of performing their obligations under this Agreement.

4.2 Software Licence

(a) Subject to clause 4.1(b), R4G grants the Customer a non-exclusive, royalty-free licence to access and use the Software for the purposes of using the Equipment for the benefit of the Customer and its Users in accordance with this Agreement, for the Term.

(b) The Customer must, and must ensure that each User must:

(i) not use the Software and Services otherwise than as permitted by this Agreement;

(ii) comply at all times with the Ohmnilabs End User Licence Agreement available at https://ohmnilabs.zendesk.com/hc/en-us/articles/360042968033-What-are-the-terms-of-service-after-purchasing;

(iii) not commercialise, sublicence, copy, rent, lend, transfer, modify or sell the Software or Services (in whole or in part, or any modifications or derivatives), or communicate them to third parties, whether for payment or not,

(iv) not attempt to or knowingly permit or encourage others to attempt, to alter, reverse engineer, disassemble, decompile, decipher or otherwise decrypt or discover the source code of the Software;

(v) notify R4G of any suspected infringement of IP rights in the Software or Services and take reasonable action as R4G may direct;

(vi) take all reasonable precautions to prevent unauthorised or improper use or disclosure of the Software or Services and notify R4G immediately after it becomes aware of same;

(vii) indemnify R4G for any liability incurred by R4G or any third parties for any use of IP in the Software or Services otherwise than in accordance with this Agreement; and

(viii) on the expiry or termination of this Agreement for any reason immediately cease using the Software and Services except as authorised by R4G in writing.

(c) The Customer must not use any release of the Software other than the most current release provided by R4G or Ohmnilabs. Software releases will be automatically pushed to each item of Equipment. The Customer must update the Software to the most current version when provided by OhmniLabs or on request by R4G.

4.3 Infringement

(a) If either party becomes aware of any threatened or actual third party claim for breach of IP rights which may affect the use of the Services or Equipment by the Customer, R4G may at its option and at no cost to the Customer substitute or replace the relevant Services or Equipment with services or equipment of similar type and utility which does not infringe any third party IP rights or sever that part of the Services or Equipment and the Fees will be correspondingly reduced.

(b) The Customer must not, and must ensure that its Personnel and Users do not, combine or use the Equipment with any software or hardware not provided, authorised by or recommended by OhmniLabs or R4G or modify the Equipment.

5. FEES, PAYMENT AND TAXES

5.1 Fees

(a) The Customer must pay to R4G the Fees and all other amounts payable under this Agreement in accordance with the payment terms in the Schedule.

(b) If no payment terms are specified in the Schedule for any amount payable under this Agreement, R4G will invoice the Customer at the end of each month for any amounts during that month and the Customer must pay the invoiced amounts within 30 days after the date of the relevant invoice.

(c) R4G may increase the Fees effective on the day following Initial Term and each anniversary thereafter by giving written notice of the new Fee schedule to the Customer and this Agreement will be deemed to have been amended to incorporate the new Fee schedule. If no notice is given by R4G under this clause, the Fees will automatically increase on by the higher of the prevailing rate of CPI (all groups) or 3%.

(d) The parties agree in good faith to review the commercial impact of any fluctuations in foreign exchange markets or other key cost drivers that materially impact the costs of R4G upon 30 days written notice by R4G to customer.

5.2 Additional fees

Where any Equipment is required to be repaired or replaced as a result of the Customer or any User:

(a) using the Equipment other than in accordance with this Agreement or any operating instructions or manuals;

(b) failing to comply with this Agreement or any applicable law;

(c) misplacing the Equipment; or

(d) damaging, destroying or using the Equipment in the manner contemplated by clause 7.2(b),

the Customer must promptly notify R4G and must pay to R4G the costs of repairing or replacing the relevant Equipment (excluding any costs arising solely out of fair wear and tear) at R4G’s then-current rates.

5.3 Disputed amounts

Where Customer in good faith disputes any amount invoiced under this Agreement, the Customer must nevertheless pay the total amount invoiced (including the disputed portion) and the parties must use their best efforts to resolve the dispute. If after resolution of the dispute it is found that the Customer has overpaid any amount, R4G must refund that amount within 7 days after resolution of the dispute along with interest on the overpaid amount calculated on the basis of 3% per annum for the period the amount was held by R4G.

5.4 Late payments

The Customer must pay on demand interest on any overdue amounts under this Agreement at the per annum post judgment interest rate set out in the Federal Court of Australia Act 1976. Interest will accrue from day to day.

5.5 GST

Notwithstanding any other clause in this Agreement:

(a) the amounts specified for payment for the supply of any goods or services under this Agreement are exclusive of GST (a "GST Exclusive Payment");

(b) if GST is imposed on any supply made pursuant to this Agreement, the recipient of that supply must pay, in addition to the amount payable for the supply, an amount calculated by multiplying the prevailing GST rate by that amount. Any amount payable under this clause 5.4(b) is payable on the day that payment of the amount payable for the supply that has given rise to the obligation to pay GST, is required pursuant to this Agreement;

(c) the supplier will ensure that any invoice or other request or demand for payment of a supply provided by it to the recipient of that supply shall constitute a tax invoice under the relevant GST legislation and is provided at or before the time of the payer making the GST Exclusive Payment. This tax invoice must enable the payer to claim any related credits to which it may be entitled.

5.6 Security Deposit

(a) On or before the Start Date, the Customer must pay to R4G the Security Deposit which will be held by R4G as security for Customer’s performance of its obligations under this Agreement.

(b) In addition to R4G’s other rights, if Customer fails to comply with any obligation under this Agreement (including payment of amounts due), R4G may apply all or part of the Security Deposit towards satisfaction of the relevant obligation and the Customer must, within 3 days after receiving an invoice, pay to R4G that amount as a top up so that at all times R4G holds the full Security Deposit.

(c) Promptly after the end of the Term, R4G will pay to the Customer an amount equal to the Security Deposit less any amounts that have been applied by R4G in accordance with clause 5.6(b).

(d) R4G may register a security interest on the Personal Property Securities Register in respect of the Equipment provided to Customer under this Agreement. Customer waives its right to receive any notice or statement under the Personal Property Securities Act 2009 (Cth) unless the requirement to give the notice or statement cannot be excluded.

6. INSURANCE

6.1 R4G insurance

During the Term, R4G shall, at its cost, effect and maintain with reputable insurers the following insurances:

(a) public liability insurance (covering bodily injury, death and property damage) to the value of at least $10 million in respect of each claim;

(b) workers’ compensation insurance as required by applicable law;

(c) professional indemnity insurance in respect of professional services in the amount of no less than $1 million in the aggregate; and

(d) all other insurances required by applicable law.

6.2 Customer insurance

During the Term, the Customer shall, at its cost, effect and maintain with reputable insurers the following insurances:

(a) public liability insurance (covering bodily injury, death and property damage, including damage to the Equipment) to the value of at least $10 million in respect of each claim;

(b) workers’ compensation insurance as required by applicable law; and

(c) property cover, covering the full replacement value of the Equipment when in the Customer’s care, custody and control.

6.3 Notice

(a) On or before the date of this Agreement, and promptly after each renewal and on written request, each party shall furnish to the other certificates of currency evidencing that they hold the insurances required hereunder.

(b) Each party must notify the other of any circumstances which may give rise to a claim on any insurance in connection with this Agreement or the Services, any breach or potential breach of any insurance, and of any cancellation or non-renewal of any insurance (except on normal expiration), immediately on becoming aware of such circumstances.

7. REPRESENTATIONS AND WARRANTIES

7.1 R4G warranties

R4G represents and warrants to the Customer that it:

(a) will perform the Services with due care and skill using suitably qualified Personnel;

(b) and its Personnel will maintain for the Term all necessary qualifications, licenses and authorisations required by applicable laws in order to lawfully perform the Services; and

(c) has the right to grant the Software licence in clause 4.1.

7.2 Disclaimer

(a) The warranties provided in clause 7.1 and the statutory warranties referred to in clause 7.3 are the sole warranties provided by R4G in connection with the Services (including the Equipment and Software) and are given in lieu of all other warranties express or implied. Without limiting the foregoing sentence, R4G makes no warranty express or implied that the Services will be suitable or appropriate for the specific requirements of the Customer or that the Services will be uninterrupted or error or bug-free.

(b) Notwithstanding any other provision of this Agreement, R4G shall not be responsible for:

(i) Equipment or Software that has been modified, repaired or serviced by anyone other than OhmniLabs, R4G or its Personnel unless directed by OhmniLabs;

(ii) Equipment or Software that has been subjected to unusual physical or electrical stress, whether such stress results from accident, neglect, failure of electrical power, air conditioning, humidity control, or transportation, and such stress caused the Equipment or Software to not perform in accordance with the specifications accompanying such Equipment or Software;

(iii) damage, loss or destruction to Equipment or Software caused or contributed to by misuse or mishandling including extensive outdoor use, driving down stairs, physically riding on the robot, liquid spills, exposure to high heat, misused or altered power cables, forcing hardware, and falls causing hardware damage to screens, bulbs, hinges, wheels, and componentry;

(iv) any problem or nonconformity with the Equipment or Software arising from the use of third party software, hardware or other equipment not purchased from or provided, supplied or authorised by OhmniLabs or R4G, and application modules excluding software required for routine operation;

(v) malfunction or damage of the Equipment or Software caused by viruses or hackers; or

(vi) any problem or nonconformity in any version or release of Software other than the current release and the immediately preceding minor releases (if OhmniLabs has made such corrective release available at no additional charge).

7.3 Consumer guarantees

(a) Where the Fees are under $100,000 or the Services are supplied for personal or household use, the ACL imposes the following consumer guarantees: (1) that the Services will be provided with due care and skill; will be fit for the purpose specified herein; and within a reasonable time where there is no date agreed; and (2) that goods will be of acceptable quality, match descriptions in this Agreement, samples and models you asked for, be fit for the purpose specified herein and come with full title and ownership once paid for.

(b) Where R4G fails to provide Services to the Customer in accordance with the consumer guarantees the Customer has a right to seek a remedy under the ACL. If the breach cannot be remedied or amounts to a major failure, the Customer is entitled to a refund, replacement or payment of the cost of a replacement or other remedies under the ACL and may also be entitled to compensation for reasonably foreseeable losses caused by the failure.

(c) Whether there has been a breach of the consumer guarantees or major failure depends on the circumstances, including: (1) the reason for the failure, for example whether it was caused by R4G, another party or by factors outside our control; (2) the length of any delay; and (3) whether we remedied the issue within a reasonable time.

8. INDEMNITY AND LIABILITY

(a) Subject to clause 7.2, and the remainder of this clause 8, R4G indemnifies the Customer from and against any Claims which may be brought against or incurred by the Customer arising out of any unlawful or negligent act or omission by R4G or its Personnel in the course of performing this Agreement. R4G’s obligation to indemnify the Customer will be reduced proportionally to the extent that the relevant Claim was caused or contributed to by the negligence, breach of this Agreement, breach of law or wilful misconduct of the Customer or its Personnel.

(b) The Customer indemnifies R4G from and against any Claims which may be brought against or incurred by R4G arising out of: (1) any unlawful or negligent act or omission by Customer or any User; and (2) the failure of the Customer to return any Equipment at the time and in the condition required by this Agreement or the exercise of any of R4G’s rights in relation to repossession of the Equipment.

(c) Subject to clauses 7.3, the liability of R4G to the Customer under this Agreement for any Claim, howsoever arising, is limited to the Fees payable for the Term, provided that this cap will not apply to amounts payable by R4G under clause 8(a) (unlawful or negligent acts) or clause 7.1(c) (IP infringement).

(d) Notwithstanding any other provision of this Agreement, neither party will under any circumstances be liable to the other for any special, exemplary, indirect, punitive or consequential loss or damage (including any loss of profit, loss of opportunity or loss of goodwill) incurred either directly or indirectly in connection with this Agreement.

(e) Nothing in this Agreement will limit or exclude any liability that may not be limited or excluded under applicable law.

9. DEFAULT AND TERMINATION

9.1 Termination for default

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

(a) R4G notifies the Customer that it no longer has the necessary arrangements to provide the Services;

(b) the other party fails to comply with any obligation under this Agreement, and does not remedy the failure within 14 calendar days of being given written notice to that effect from the party not in default; or

(c) an Insolvency Event occurs in relation to the other party.

R4G may immediately terminate this Agreement by written notice to Customer if Customer fails to pay any amount owing under this Agreement within 7 calendar days after the relevant due date.

9.2 Suspension

If the Customer fails to pay any amount owing under this Agreement within 3 days after the relevant due date, then without limiting its other rights under this Agreement and at law, R4G may immediately suspend provision of the Services and the Customer is not authorised to use the Equipment or Software in any way until all amounts then owing but unpaid have been paid in full.

9.3 Consequences of termination

(a) Upon termination or expiry of this Agreement for any reason:

(i) the Customer must pay R4G all Fees and other amounts payable under this Agreement up to the date of termination or expiry;

(ii) R4G will not refund Fees paid in advance by the Customer unless such refund is specifically provided for in this Agreement;

(iii) the Customer must immediately return all R4G Equipment provided to the Customer during the Term to R4G to an address stipulated by R4G in the same condition as when provided by R4G (fair wear and tear excepted). The Customer must ensure the Equipment is packed strictly in accordance with the instructions issued by R4G and otherwise in a manner that is appropriate and safe for shipment and adequate to withstand all risks of carriage, including, but not limited to all weather conditions and temperatures to which it may be exposed. The Customer will only use couriers approved in advance by R4G. All shipment costs are to be borne by the Customer. R4G may enter the Customer’s premises (or such other place where the Equipment is located) to collect the Equipment;

(iv) R4G may, if the Customer does not return the Equipment as required by this Agreement, repossess the Equipment and take such action and enter such premises as required to do so, and/or appoint a receiver who will have all the powers conferred on a receiver at law; and

(v) each party retains the rights, powers and remedies that it had against the other party immediately prior to termination.

(b) If the Customer terminates this Agreement before the end of the Term for any reason other than default by R4G or insolvency of R4G in accordance with clause 9.1 or due to a subsisting Force Majeure under clause 9.4(b), the Customer must also pay R4G the remainder of the Fees that would have been payable for the Term had the Agreement not been terminated.

9.4 Force majeure

(a) Notwithstanding any other provision of this Agreement, neither party will be liable to the other for failure or delay in the performance of their obligations under this Agreement (other than an obligation to pay money) if such failure is caused by a Force Majeure Event, provided that the affected party:

(i) gives the other party prompt notice of the Force Majeure Event and its anticipated impact; and

(ii) uses reasonable commercial efforts to resume its full performance of its obligations under this Agreement as soon as possible.

(b) The party who is not affected by the Force Majeure Event may terminate this Agreement if the other party is unable to perform its obligations under this Agreement as a result of the Force Majeure Event for a period of more than 90 days.

(c) During the Force Majeure Event, the party who is not affected by the Force Majeure Event may similarly suspend its performance obligations (other than obligations to make payments accrued prior to the commencement of the Force Majeure Event) until such time as the affected party resumes its obligations under this Agreement.

10. CONFIDENTIALITY AND PRIVACY

10.1 Privacy

(a) The Customer warrants that it has sought and obtained (or will obtain) the consent of any person whose Personal Information (including sensitive information) may be collected as part of the Services, including persons who may be recorded during the course of the Services. The Customer must provide evidence of its compliance with this clause upon request by R4G and indemnifies R4G against any Claims incurred by or made against R4G arising out of breach of this clause.

(b) The R4G privacy policy available at https://www.robots4good.com.au/privacy applies to all Personal Information collected, stored, used and disclosed by R4G. The Customer consents to the collection, storage, use and disclosure of Personal Information in accordance with the R4G privacy policy.

(c) Each party agrees:

(i) to comply at all times with the Australian Privacy Principles as if they apply to the party;

(ii) not to cause or allow anything to be done that may result in the other party breaching its obligations under the Privacy Ac 1988 (Cth);

(iii) not to use or disclose any Personal Information other than to discharge its obligations under this Agreement;

(iv) to follow any reasonable directions of the other party in relation to the collection, storage, access and use of Personal Information in connection with this Agreement;

(v) to take all necessary steps to protect Personal Information in its possession against unauthorised access, use, modification or loss; and

(vi) not to transfer any Personal Information outside Australia without the other party’s prior written consent.

10.2 Confidentiality obligations

(a) Each party:

(i) agrees to keep the other party’s Confidential Information confidential, safe and secure at all times;

(ii) must only use, reproduce or disclose the other party’s Confidential Information to the extent necessary for the provision of the Services; and

(iii) must ensure that its Personnel who have access to the Confidential Information keep it confidential and comply with the party’s obligations under this clause 6.

(b) Clause 10.2(a) does not prevent the disclosure of Confidential Information as required by law or the rules of a recognised stock exchange, or to a party’s related bodies corporate or financial, legal, commercial and technical advisers, provided that such advisers comply with the obligations in this clause 10.2.

10.3 Removal of Confidential Information

On completion of the Term, or at a party’s earlier request, the other party must immediately deliver, erase or destroy, as directed by the party, all documents and other materials in its possession or control that contain Confidential Information, except to the extent that the other party is required by law or for its archival purposes to retain a copy. Compliance with this clause does not release the recipient of Confidential Information from its obligations under this clause 10.

10.4 Remedies and survival

(a) Each party acknowledges that because of the nature of the Confidential Information, a breach of this clause 10 may cause the other party material damage for which damages or an account of profits would not be an adequate remedy.

(b) This clause 10 shall remain in effect for a period of 3 years from the expiry or termination of Agreement.

11. GENERAL

(a) This Agreement constitutes the entire agreement between the parties and supersedes all communications, negotiations, arrangements and agreements, either oral or written, between the parties with respect to the subject matter of this Agreement.

(b) All notices required pursuant to this Agreement shall be in writing and delivered in person or by mail or email to the office of either party at the address nominated in the Schedule or such other office or address as is notified by that party from time to time.

(c) Except as expressly permitted elsewhere in this Agreement, this Agreement may only be amended in writing signed by both parties.

(d) This Agreement is governed by the law of the Australian Capital Territory and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of the Australian Capital Territory.

(e) Neither party may assign or otherwise deal with its rights or obligations under this Agreement to any person without the prior written approval of the other party.

(f) A provision of or a right under this Agreement may not be waived or varied except in writing signed by the party holding the benefit of the provision or right. Any waiver will operate in respect of the particular right and the particular circumstances only.

(g) Any present or future legislation which operates to vary an obligation or right, power or remedy of a person in connection with this Agreement is excluded except to the extent that its exclusion is prohibited or rendered ineffective by applicable law.

(h) Any provision of this Agreement that may be determined by competent authority to be prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

(i) 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.

(j) This Agreement may consist of a number of counterparts and the counterparts taken together constitute one and the same instrument.

(k) Nothing in this Agreement nor any circumstances associated with the performance of the Agreement will give rise to any relationship of employer and employee between the Customer and R4G or their respective Personnel, nor any relationship of agency or partnership.