The following rules of interpretation apply:

(a) A reference to a party includes, as the context requires, the party’s respective executors, administrators, successors and permitted assigns.

(b) A reference to a person includes any other entity recognised by law.

(c) Headings and indexes are only included for ease of reference and do not affect interpretation.

(d) A reference to any legislation or legislative provision includes any modifying, consolidating or replacing legislation or legislative provisions from time to time, and includes all regulations, rules and other statutory instruments issued under the legislation.

(e) A reference to a document (including these terms) is to that document as varied, novated, ratified or replaced from time to time.

(f) References to parties, clauses, schedules, annexures or exhibits are references to parties, clauses, schedules, annexures or exhibits to this Agreement unless otherwise stated.

(g) References to months and years mean calendar months and years.

(h) Words denoting the singular number include the plural, and vice versa.

(i) Words denoting one gender include the other gender or neuter, as the context requires.

(j) Where any word or phrase is given a defined meaning any other grammatical form of that word or phrase has a corresponding meaning.

(k) No rule of construction or interpretation applies to the disadvantage of a party because that party prepared this Agreement.

(l) A reference to “$” or “dollar” is to Australian currency.

(m) If the day on which any act, matter or thing is to be done under or pursuant to this Agreement is not a Business Day, that act, matter or thing may be done on the next Business Day.

All parties to this Agreement warranty to any and all other parties:

(a)Legally binding obligation: This Agreement constitutes a valid and legally binding obligation of the party in accordance with its Terms.

(b) Execution, delivery and performance: The execution, delivery and performance of this Agreement do not violate any existing law or regulation. Each party warranties that they are not in violation of any existing agreement, document or condition to which they are a party or which is binding upon the User or any of its assets.

(c) Authorisation: All consents, licences, approvals and authorisations of every Government Authority or third party required to be obtained by the User in connection with the execution, delivery and performance of this Agreement and the transactions contemplated by this Agreement have been obtained or effected and are valid and subsisting, and that the party has complied with each of them.

(d) No Event of Default: No event has occurred which constitutes an Event of Default or a potential Event of Default.

(e) Laws: The party has complied with all statutes and regulations relevant to it and the businesses carried on by it.

(f) Corporate power: The User has the power, and has taken all corporate and other action required, to enter into this Agreement and to authorise the execution and delivery of this Agreement and the performance of its obligations under this Agreement.

The Licence conferred pursuant to this Agreement shall become operative upon the installation of the Application and shall remain in force until terminated in accordance with the terms herein delineated.

The Licensee reserves the right to terminate this Agreement at any juncture. Should the Licensee elect to terminate this Agreement prior to the expiration of the stipulated contractual term, an early termination fee shall be levied, equal to the aggregate amount owed under the terms of this Agreement, minus any fees heretofore paid. Subsequent to the expiration of the initial contractual term, the Licensee is required to furnish a written notice of termination no less than ninety (90) days prior to the desired termination date to effectively conclude this Agreement.

The Licensor is entitled to terminate the Licence conferred by this Agreement at its discretion, provided that a notice period of twenty-eight (28) days is accorded to the Licensee prior to such termination.

9.1 Licence Fee

The Licensee must pay the Licensor the Licence Fee as consideration for the rights granted in this Agreement in accordance with the terms of this Agreement.

9.2 Payment of monthly fees

Where the Licence fee is payable on a monthly basis, the Licence fee is payable on the first day of each month of the Term, one month in advance. You authorise us or our billing agent to process the payment for all and any fees due.

9.3 Change of fees

We will notify you in writing to your registered email address if there is a change to the Fee payable by you. Any such Fee change will take effect from the date as notified in the correspondence. Any over payments will be credited or refunded to your account.

9.4 Cancellation

On cancellation or termination of your plan or restriction on your use of the Platform for any reason you will not be entitled to any refund of Fees paid to us. You may be required to pay an early termination fee if you cancel prior to the end of the term of agreement.

9.5 Payment processing

If we are unable to successfully process a payment, then we may either give you an opportunity to update your payment details or notify you of the unsuccessful payment and cancel or restrict your access to the platform.

9.6 Costs of Recovery

The debtor/s shall pay for all costs actually incurred by Acutech Group Pty Ltd in the recovery of any monies owed under this Agreement. You agree to be liable for and indemnify Vendor Compare Pty Ltd. These costs include recovery agent costs, repossession costs, location search costs, process server costs and solicitor costs on a solicitor/client basis, debt collection commission and legal fees on an indemnity basis.

10.1Exclusive of GST

All amounts agreed to be paid under this Agreement, being the consideration for the supply expressed in this Agreement, are exclusive of GST.

10.2Payment of GST

If the Licensor becomes liable for GST in respect of a supply made under this Agreement, the Licensee must pay to the Licensor an amount equivalent to the Licensor’s GST liability, at the same time as the payment is made involving the Licensor in GST liability.

If the Licensor is entitled to an input tax credit in relation to any amount recoverable from the Licensee under this clause the amount payable by the Licensee must be reduced by the amount of the input tax credit that the Licensee has received or claims and is entitled to receive.

10.3Tax Invoice

In respect of each payment by the Licensee under this Agreement, the Licensor must deliver a tax invoice to the recipient.

Each party must:
(a)perform its obligations under this Agreement;
(b)bear its own costs of the obligations in relation to the administration of this Agreement;
(c)fully inform itself, examine any documents or information made available or identified by the other party and satisfy itself as to the correctness and sufficiency of the information which is necessary in order to perform its obligations under this Agreement;
(d)control and rectify defaults caused by that party which may arise under this Agreement; and
(e)manage those risks which are that party’s responsibility under this Agreement.

Any party may terminate this Agreement by giving notice to the other party if either of the following occurs:

12.1 After Termination

Any accrued rights and remedies of a party survive termination or expiry of this Agreement.

If this Agreement is terminated under this Clause each of the following applies:

(a)the party issuing the notice of termination (Terminating Party) must use its reasonable endeavours to mitigate any damage flowing from the termination;

(b)the party receiving the notice of termination (Defaulting Party) must pay to the Terminating Party its costs, expenses, loss and damage flowing from the termination within 30 days of receiving a statement setting out the Terminating Party’s costs, expenses, loss and damage. For the avoidance of doubt, the Terminating Party may issue more than one statement; or

(c)the Defaulting Party must pay interest on all amounts outstanding under this Agreement, including any amount payable under this clause above, calculated daily at the applicable rate set out in the Supreme Court Rules 1970.

12.2No Merger

The parties acknowledge and agree that the provisions contained in this clause and do not merge on termination of this Agreement and continue in full force and effect.

13.1Licensor’s warranties

The Licensor represents and warrants to the Licensee that as far as the Licensor is aware:
(a)it has the right to grant to the Licensee granted in Clause 5; and
(b)use of the Application by the Licensee in accordance with this Agreement will not infringe the intellectual property rights of any entity.

13.2Notice of breach

A party must notify the other party as soon as reasonably practicable after becoming aware of any breach of a representation or warranty.

The Licensee indemnifies the Licensor against any claim, action, damage, loss, liability, cost, charge, expense, outgoing or payment which the Licensor pays, suffers, incurs or is liable for in connection with:

(a) a breach of this Agreement or any negligent or otherwise wrongful act or omission of the Licensee or its Users, representatives, agents or employees;

(b) a claim brought or threatened against the Licensor by a third party that the use by the Licensee of the Application or the Hosting Services (other than in accordance with this Agreement) which infringes the Intellectual Property Rights of that third party;

(c) use by the Licensee of the Application for purposes other than the Specified Purpose;

(d) any of the Licensee’s Data electronically transmitted to the Licensor and any of the Licensee’s Data that is processed or generated by the Hosting Services; or

(e) any person accessing or using the Application or Hosting Services in breach of this Agreement.

The User acknowledges that the aggregate liability of the Licensor in respect of any claim for loss or damage sustained by the Licensee or any third party under or in connection with this Agreement (whether such liability arises under statute, in contract or in tort including actions arising out for negligence, or otherwise) is limited to the total amount of the Licence Fees paid in the calendar year of the event giving rise to the claim.
The Licensor is not liable for any indirect, special or consequential loss or damage of any kind (including, without limitation, loss of profits, anticipated savings or business) sustained by the Licensee or any third party with respect to, arising from, or in connection with this Agreement.
Apart from any guarantee, condition or warranty implied by law which may not be excluded, restricted or modified, and any express representation or warranty in this Agreement, the Licensor makes no representations or warranties in relation to any goods or services provided under this Agreement.
Subject to this Clause the Licensor’s liability for any breach of a guarantee, condition or warranty implied by law which cannot be excluded is limited, in the case of goods, to any one or more of the following (at the Licensor’s option):
(a)replacing the goods or supplying equivalent goods;
(b)repairing the goods;
(c)paying the cost of replacing the goods or supplying equivalent goods; or
(d)paying the cost of repair the goods.
(e)in the case of services, to any one or more of the following (at the Licensor’s option):
(i)Supplying the services again; or
(ii)Paying the cost of supplying the services again.
(f)The operation of clause 15(e) is subject to the Australian Consumer Law.

16.1Rights and obligations

The Licensee acknowledge that the Licensor owns all right, title and interest in and to the Application, including without limitation all Intellectual Property Rights, and the Licensor Rights are protected by intellectual property laws.
The Licensee must not use any robot, spider, other automated device, or manual process to monitor any content from, hosted by or that is otherwise available using the Application.
The Licensor Rights include rights to the Application developed and provided by the Licensor, all software associated with the Application and the Brand Features (see below).
The Licensor Rights do not include third-party content (such as the Licensee’s Data) used as part of use of the Application.

16.2 Brand Features

Any use of the Licensor’s Brand Features by the Licensee must be only in connection with the Application and in compliance with the Agreement.
The Licensee must not alter any Brand Features or copyright notices that are posted by the Licensor on or in connection with the Application.

17.1 Each party must keep confidential and not use the Confidential Information provided to that party (Receiving Party) by or on behalf of another party (Disclosing Party) for any purpose other than a purpose required or contemplated by this Agreement. The Receiving Party must not disclose the Disclosing Party’s Confidential Information to any person except in any of the following circumstances:
(a)The prior written permission of the Disclosing Party has been obtained (which the Disclosing Party is not bound to give) and the Receiving Party has fully observed any conditions or limitations required as part of that grant of permission.
(b)The Disclosing Party discloses the Confidential Information on a ‘need to know’ basis to officers, employees, agents, contractors, and advisers engaged by the Receiving Party in good faith, and who have agreed to obligations in relation to that Confidential Information that are the same as the obligations of the Receiving Party.
(c)Subject to complying with this clause, the disclosure is required according to law.
17.2 Security
The Receiving Party must keep all Confidential Information in a secure manner (as appropriate having regard to the medium in which that Confidential Information is recorded) to protect the Confidential Information from being accessed by unauthorised persons.
17.3Procedure for disclosure to 3rd party
If the Receiving Party is required to disclose Confidential Information pursuant to this agreement, the Receiving Party must, immediately on having notice of the requirement to disclose, give notice to the Disclosing Party. The Disclosing Party may, at its cost, obtain legal advice as to the extent to which the Receiving Party must disclose any of the Confidential Information, and any steps that that the Receiving Party may take to limit disclosure or protect the confidentiality of the Confidential Information. The Disclosing Party provide a copy of that legal advice to the Receiving Party. If so, the Receiving Party must act in accordance with that legal advice.
In relation to any Confidential Information disclosed by the Receiving Party to another person (whether permitted under this Agreement or otherwise) the following applies:
(a)The Receiving Party must ensure that the other person observes the obligations of this Agreement as if that other person is a party to this Agreement;
(b)The Receiving Party must use best endeavours to take reasonably appropriate legal action (whether seeking injunctions, claiming compensation, or otherwise, as appropriate) against any person who breaches the obligations referred to in this agreement.
17.4Indemnity
The Receiving Party indemnifies the Disclosing Party for any losses, damages, expenses and costs that may be incurred by the Disclosing Party as a result of any breach by any person to whom disclosure is made pursuant to this Clause.
17.5Return of Confidential Information
On written demand by the Disclosing Party, the Receiving Party must, within a reasonable time do each of the following:
(a)return to the Disclosing Party all original documents and other materials relating to Confidential Information in the Receiving Party’s possession;
(b)destroy all copies of any materials containing Confidential Information in the Receiving Party’s possession or control.
17.6Injunctive Relief
Each party acknowledges that unauthorised use or disclosure of the Confidential Information may cause the Disclosing Party damage that cannot be adequately compensated by damages. Accordingly, each party agrees that in addition to any other rights or remedies the Disclosing Party may have, the Disclosing Party has the right to seek and obtain immediate injunctive relief from any actual or threatened breaches of this clause by the Receiving Party.
17.7Continuing Obligation
The obligations under this clause continues regardless of the continuation of any other business or other relationship between the parties.
17.8Consideration
The parties acknowledge that disclosure of any Confidential Information by the Disclosing Party to the Receiving Party constitutes adequate consideration for the obligations undertaken by the Receiving Party under this Agreement.

18.1Licensee’s warranty to the Licensor
The Licensee warrants to the Licensor each of the following:
(a) any Personal Information that the Licensee discloses to the Licensor as part of the use of the Application or otherwise has been collected in accordance with the law;
(b) the individual to whom the Personal Information relates has been made aware of the identity of the Licensor and of the other matters of which the Licensee is required to inform the person about whom it collects information;
(c) the disclosure of that Personal Information to, and its use by, the Licensor is authorised by or under the law.
(d) To act in accordance with the Licensor’s privacy policy.

18.2Licensor’s obligation
In relation to any Personal Information disclosed to the Licensor by the Licensee, the Licensor must do each of the following:
(a) not disclose, store, transfer or handle the Personal Information except in accordance with the law;
(b) take all reasonable steps to ensure that the Personal Information is protected from misuse or loss, and from unauthorised access, modification or disclosure;
(c) take all reasonable steps to destroy or permanently de-identify Personal Information that is no longer needed for the purposes of this Agreement;
(d) co-operate with any reasonable request or direction of the Licensee makes which relates to the protection of any Personal Information or the exercise of the functions of the Privacy Commissioner;
(e) ensure that access to the Personal Information is limited to those of its employees and contractors who are required to access that information for the purposes of this Agreement.
(f) Comply with any reasonable direction of the Licensee in relation to a complaint concerning privacy received by a party.

19.1Dispute Resolution
If a Dispute arises between any parties in relation to this Agreement the following procedure applies:
(a)A party may give another party a notice of the Dispute, and the Dispute must be dealt with in accordance with the procedure set out in this Clause
(b)A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a Dispute unless the Dispute has been referred for resolution in accordance with this clause.
(c)A party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a Dispute pending the completion or termination of the procedure set out in this clause.

19.2Initial Period for Resolution
If a Dispute is notified pursuant to this clause, the Dispute must immediately be referred to the parties’ respective senior management. Those representatives must endeavour to resolve the Dispute as soon as possible and in any event within five (5) Business Days (or other period as agreed).

19.3Referral to Mediation
Unless otherwise agreed by the parties, any Dispute that cannot be settled by negotiation between the parties or their representatives in accordance with Clause 19 must be submitted to mediation. A Dispute submitted to mediation must be dealt with in the following manner:
(a)The parties in dispute agree to endeavour in good faith to settle the Dispute by mediation administered by the Australian Commercial Disputes Centre (“ACDC”) before having recourse to litigation.
(b)The mediation must be conducted in accordance with ACDC Mediation Guidelines that exist as at the date of the Dispute which set out the procedures to be adopted, the process of selection of the mediator and the costs involved and the terms of those guidelines are incorporated in this Agreement.
(c)The mediator assists the parties to resolve the dispute.
(d)All parties may be represented by a qualified legal practitioner at the mediation.
(e)Any determination of the mediator is not to be binding on the parties.

19.4Continued Performance
Notwithstanding the existence of a Dispute (including the referral of the Dispute to mediation), each party must continue to perform its obligations under this Agreement.

19.5Confidentiality
The parties must hold confidential, unless otherwise required by law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the Dispute that is disclosed during or for the purposes of dispute resolution. The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this procedure is to attempt to settle the Dispute between the parties. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to settle a Dispute between the parties.

20.1Method of Communication

All notices, requests, applications and consents required or permitted to be given by one party to another party must be in writing, addressed as set out in this Clause.
Delivery of a notice is effected by either of the following methods:
(a)Delivered to that party’s address as set out below.
(b)Transmitted by facsimile or email transmission to that party’s address.

20.2Time of Receipt
A notice, request, application or consent given to a party under clause 21.1 is deemed to have been received in the following circumstances:
(a)If delivered to a party’s address on a Business Day, on the day of delivery, otherwise on the next Business Day.
(b)If delivered by prepaid post in Australia, on the second Business Day after the date of posting.
(c)If transmitted by facsimile and a correct and complete transmission report is received, if the transmission report is received on a Business Day, at the time the transmission report is received, otherwise at the commencement of the next Business Day.
(d)if transmitted by email, at the time the transmission is completed if the sender of the email does not receive a failure of delivery notice.

20.3Address, facsimile and email of Parties
For the purpose of Clause 21, the address, facsimile and email of a party is the address, facsimile and email as notified by that party to the other party from time to time.

20.4Authorised Representative Communication
Any notice, request or any other communication from any Authorised Representative of the Licensee is to be to directed toward the Licensee and not the Licensor. This does not extend to the requirement of any application or technical support which only the Licensor can provide.

20.5Consents
(a)Any consent or approval referred to in, or required under, this Agreement from any party may be given or withheld, or given subject to any conditions, as that party in its absolute discretion thinks fit.
(b)Any consent or approval referred to in, or required under, this Agreement from any party may not be unreasonably withheld, or given subject to any unreasonable conditions.

21.1Governing law and jurisdiction
The law in force in New South Wales governs this Agreement. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and any courts that may hear appeals from those courts in respect of any proceedings in connection with this Agreement.
Each party irrevocably waives any objection it may now or in the future have to the venue of any proceedings, and any claim it may now or in the future have that any proceedings have been brought in an inconvenient forum where that venue falls within New South Wales.

21.2Joint and several liability
Every covenant or provision in this Agreement applying to or binding, or a right conferred on, more than one person binds or benefits them jointly and each of them severally.

21.3Amendment
Subject to any other clause, this Agreement may be amended or supplemented with 30 days notice.

21.4Counterparts
This Agreement may be executed in any number of counterparts and all those counterparts taken together constitute one and the same instrument. Execution of facsimile counterparts, and facsimile copies of executed counterparts, is sufficient for this purpose.

21.5Assignment
The Licensee must not assign or novate any right or obligation under this Agreement without the other Licensor’s prior written consent.

21.6Waiver
The non-exercise of or delay in exercising any power or right of a party does not operate as a waiver of that power or right, nor does any single exercise of a power or right preclude any other or further exercise of it or the exercise of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.

21.7Further assurance
Each party must do, sign and deliver and must procure that each of its employees and agents does, signs, and delivers, all acts, things and documents reasonably required of it by notice from another party to effectively carry out and give full effect to this Agreement and the rights and obligations of the parties under it.

21.8Entire Agreement
This Agreement and any annexures is the entire agreement of the parties on the subject matter. The only enforceable obligations and liabilities of the parties in relation to the subject matter are those that arise out of this Agreement.
All representations, communications and prior agreements in relation to the subject matter are merged in and superseded by this Agreement.

21.9Severability
If any part of this Agreement is void or unenforceable in any jurisdiction, then for the purposes of that jurisdiction if possible, that part is to be read down to be valid and enforceable.
If any part of this Agreement is void and severable, but does not go to the essence of the Agreement, that part will be severed from this Agreement and the rest of this Agreement continues to have full force and effect to give effect to the intentions of the parties.

21.10Costs
Each party must bear their respective costs and expenses, including legal costs, in obtaining relevant approvals and consents, negotiations and the execution of this Agreement, and all other necessary documents in relation to the transaction.

21.11Time
Unless provided for in any other manner, the time for a party to comply with an obligation is of the essence.

21.12Independent Legal Advice
Each party to this Agreement acknowledges that they have been given an opportunity to seek independent legal advice with respect to the terms of this Agreement prior to its execution and have been advised to do and understands the terms, rights and obligations under this Agreement.