Terms & Conditions

Parties

A. Minikai Pty Ltd ACN 674 548 577 (the Company).

B. The customer whose details are set out in the Order Form (the Customer).

Background

A. The Company has developed and owns certain software applications and related services, which it makes available to customers on a subscription basis via the Platform as part of the Services.

B. The Customer wishes to subscribe to, access, and use the Services through the Platform for the Permitted Purpose, and the Company agrees to grant the Customer such access for the Permitted Purpose, subject to the terms of this Agreement.

Order Forms are provided by Minikai separately and are not published on this website.

1. Definitions and Interpretation

1.1 Definitions

In this Agreement, unless the context otherwise requires:

Account means a unique account established by the Company for the Customer (and, where applicable, for the Customer's Authorised Users) to access and use the Platform and Services in accordance with this Agreement, with each Account linked to specific access credentials and permissions determined by the Company and the Customer.

Agreement means these Terms and Conditions together with any Order Form and all schedules, attachments, addenda, and annexures to them.

Authorised Representative means in relation to a Care Recipient, any person who is legally authorised to act on behalf of that Care Recipient in connection with the provision or management of their care or support, and may include (as applicable):

• a parent or legal guardian;
• a person holding an enduring or medical power of attorney;
• a person appointed by a court or tribunal with authority to make decisions for the Care Recipient; or
• any other person duly authorised in writing or under applicable law to act for or represent the Care Recipient in matters relating to their care, health, or wellbeing.

Authorised Users means the Customer's employees, officers, contractors, or other personnel who are authorised by the Customer to access and use the Platform and Services under the Customer's Account for the Permitted Purpose, in accordance with this Agreement. Authorised Users may also include third parties (such as agency staff or consultants) who perform services for or on behalf of the Customer.

Business Day means a day on which banks are open for general banking business in Melbourne, Victoria, Australia, excluding Saturdays, Sundays and public holidays.

Care Recipient means any individual who receives, or is intended to receive, aged care, disability support, health, or related care or services from the Customer (or on the Customer's behalf), whether directly or indirectly. A Care Recipient may include a resident, client, patient, participant, or any other individual under the Customer's care or support.

Claim means any claim, notice, demand, action, proceeding, litigation, investigation or judgment, however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort, equity, statute or otherwise and whether involving any third party or a Party to this Agreement.

CMS means any customer, client or care management system or other external software identified in an Order Form for integration with the Platform.

Company means Minikai Pty Ltd ACN 674 548 577.

Company Data means any data, information, or materials provided or made available by the Company through the Services or otherwise as a result of the Customer's use of the Services, and any data that is generated from the operation of the Platform or the Services (such as analytics, usage data, logs, and learnings from the Customer's use) which does not identify the Customer or any individual. Company Data includes aggregated or anonymised data derived from Customer Data or the Customer's use of the Services, once it is transformed so that it cannot reasonably identify the Customer or any Data Subject. For clarity, Company Data may include aggregated or anonymised analytics derived from Customer Data but will not include Personal Information unless re-identification is legally authorised.

Company IP has the meaning given to it in the Intellectual Property clause.

Confidential Information means all information of a confidential or proprietary nature disclosed by one Party to the other in connection with this Agreement, whether before or after the Effective Date, and whether disclosed in oral, written, electronic, or any other form. Confidential Information includes, without limitation, business plans, financial data, technical information, software, trade secrets, specifications, reports, customer lists, and data. Confidential Information does not include information that:

• is or becomes publicly available without breach of this Agreement;
• is lawfully obtained from a third party without restriction on use or disclosure;
• is independently developed by the receiving Party without reference to the disclosing party's information; or
• the disclosing Party has agreed in writing is not confidential.

Consent Form means the consent form available at /consent-form.

Control has the meaning given to it in section 50AA of the Corporations Act, and Controls and Controlled shall be construed accordingly.

Corporations Act means the Corporations Act 2001 (Cth), as amended from time to time.

Credit means a unit of consumption used to measure and charge for usage of the Platform, including interactions with Minis and other AI-powered features. The number of Credits consumed by a given interaction may vary based on the nature and complexity of the request. Credit entitlements and excess usage rates are specified in the Order Form.

Customer means the entity identified as the Customer in the relevant Order Form.

Customer Data means all data, information, content, or records that the Customer (or its users) uploads, transmits, enters, or otherwise provides to the Company in connection with the use of the Services. Customer Data also includes any output, report, or data generated by the Services specifically from Customer Data and delivered to the Customer as part of the Services (for example, any reports or analytics about the Customer's operations produced through processing Customer Data). For the avoidance of doubt, Customer Data does not include Company Data or any data independently developed by the Company without use of the Customer's confidential or provided information.

Customer IP has the meaning given to it in the Intellectual Property clause.

Customer Systems means the Customer's information technology systems, devices, networks, and infrastructure through which the Customer accesses and uses the Services.

Data Subject means an individual who is the subject of Personal Information.

Developed IP means any and all Intellectual Property Rights in any enhancements, improvements, updates, modifications, new features, or derivative works relating to the Platform or Services that are developed, conceived, or created during the Term, whether by or on behalf of the Company, or jointly with the Customer, or based on feedback or suggestions from the Customer.

Dispute Notice has the meaning given to it in the Dispute Resolution clause.

Effective Date means the date specified as the effective date in the relevant Order Form as the date on which the Services commence. If no Effective Date is specified in an Order Form, the Effective Date will be the date by which the last of the Parties duly executes this Agreement.

Event of Default means any of the following:

• the Customer fails to pay any Fees when due in accordance with clause 6.1;
• either Party breaches any material term of this Agreement and fails to remedy that breach within 30 days after written notice from the other Party;
• either Party suffers an Insolvency Event;
• the Customer uses the Services in an unlawful, fraudulent, or materially non-compliant manner with this Agreement;
• the Customer undergoes a change of Control without the prior written consent of the Company, which must not be unreasonably withheld, conditioned, or delayed; or
• the Company fails to restore the Services to material conformity with this Agreement within the period specified in clause 4.7, following written notice by the Customer in accordance with that clause.

Fees means the fees payable by the Customer for the Services, as set out in the Order Form (including Subscription Fees, Services Fees, and any other fees specified in the Order Form), as may be adjusted in accordance with this Agreement.

Force Majeure Event means an event or circumstance beyond the reasonable control of a Party, which may include acts of God, natural disasters, lightning or fire, epidemics or pandemics, acts of war or terrorism, civil unrest, or any law or action taken by a government authority that makes it impossible or illegal for a Party to perform its obligations.

GST means goods and services Tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any related or replacement legislation, together with any interest, penalties, fines or other charges in respect of such Tax.

Initial Term means the period specified in the Order Form as the initial subscription term.

Insolvency Event means the occurrence of any one or more of the following events in relation to a Party:

• it is or states that it is insolvent or is deemed or presumed to be insolvent under any applicable laws;
• it is unable to pay its debts;
• an application or order is made or expected to be made for its winding up, bankruptcy or dissolution or a resolution is passed or any steps are taken to pass a resolution for its winding up or dissolution;
• an administrator, provisional liquidator, liquidator or person having a similar or analogous function under the laws of any relevant jurisdiction is appointed, or expected to be appointed, in respect of it or any action is taken to appoint any such person and the action is not stayed, withdrawn or dismissed within 10 Business Days;
• a controller is appointed, or expected to be appointed, in respect of any of its property;
• it is deregistered under the Corporations Act or other legislation or notice of its proposed deregistration is given to it;
• a distress, attachment or execution is levied or becomes enforceable against it or any of its property;
• it enters into or takes action to enter into an arrangement, composition or compromise with, or assignment for the benefit of, all or any class of its creditors or members or a moratorium involving any of them;
• a receiver or manager (or both) or trustee in bankruptcy is appointed, or expected to be appointed, in respect of it or its property;
• a petition for the making of a sequestration order against its estate is presented, or expected to be presented, and the petition is not stayed, withdrawn or dismissed within 10 Business Days or it presents a petition against itself; or
• anything analogous to or of a similar effect to anything described above under the law of any relevant jurisdiction occurs in respect of it.

Integration means a managed connection between an external system to which the Customer provides access and the Platform, enabling the ongoing transfer of data from that external system into the Platform.

Intellectual Property Rights means all present and future rights in relation to copyright, inventions, patents, trademarks, service marks, designs, know-how, trade secrets, confidential information, semiconductor or circuit layout rights, business and domain names, and all other similar or analogous rights, whether registrable or not, anywhere in the world.

Loss means all losses, liabilities, damages, costs, charges, and expenses (including reasonable legal costs on a solicitor and own client basis) suffered or incurred by a person, but excludes any consequential, special, or indirect loss, or loss of profit, revenue, goodwill, or data, and Losses shall be construed accordingly.

Minis means the AI agents made available through the Platform, which access and understand Customer data and a Care Recipient's documented history to provide real-time information and support to staff.

Order Form means the ordering document or online form executed by the Customer and the Company which sets out the commercial details of the Services to be provided, including any Effective Date, Fees, Integration type, Opt-Out Period, Subscription Plan, Initial Term, Renewal Term, and any special conditions. The Parties may agree to vary, replace, or submit additional Order Forms from time to time in accordance with this Agreement.

Party means a party to this Agreement and includes the Company, the Customer and each of their permitted successors and assigns.

Permitted Purpose has the meaning given to it in an Order Form.

Personal Information has the meaning given to that term in the applicable Privacy Laws and includes any information or opinion (whether true or not, and whether recorded in a material form or not) about an identified individual or an individual who is reasonably identifiable. For clarity, Personal Information includes Sensitive Information.

Opt-Out Period means the period specified in the Order Form (if any), commencing on the Effective Date and forming part of the Initial Term, during which the Customer may terminate the applicable Order Form by providing written notice to the Company, with the Customer's obligation to pay Subscription Fees ceasing at the end of the month in which notice is given.

Platform (or Software) means the Company's software-as-a-service platform known as "Minikai", including any applications, software, modules, AI agents (Minis), and tools made available to the Customer as part of the Services.

Privacy Laws means all applicable laws, regulations, and codes of practice relating to the protection of Personal Information, privacy, or data protection that apply to a Party in connection with this Agreement, limited to the jurisdiction in which the Customer is established or primarily based, including (as applicable):

• for Customers established or operating in Australia, the Privacy Act 1988 (Cth) and the Australian Privacy Principles;
• for Customers established or operating in New Zealand, the Privacy Act 2020 (NZ) and the New Zealand Information Privacy Principles; and
• for Customers that operate in both Australia and New Zealand, both of the above regimes to the extent applicable to their activities,

together with any amendments, re-enactments, or replacement laws, and any binding determinations, guidelines, or codes issued by a competent privacy or data protection authority, and including any sector-specific laws or privacy codes (such as the Aged Care Act 1997 (Cth) or the Health Information Privacy Code 2020 (NZ)) to the extent they apply to the handling of Personal Information.

Purchase Order Number means the unique identifying number assigned by the Customer to an Order Form for administrative and invoicing purposes only, used solely for reference and record-keeping purposes.

Renewal Term means each renewal period set out in the Order Form after the Initial Term, if any.

Sensitive Information means information or an opinion about an individual that is "sensitive information" under applicable Privacy Laws (including information about an individual's racial or ethnic origin, political opinions, religious or philosophical beliefs, sexual orientation or practices, criminal record, health information, genetic information, biometric information, or biometric templates), and also includes any information relevant to the care, health, or wellbeing of an individual, such as care notes, incident reports, support plans, medication records, assessments, or other records created or stored in connection with aged care, disability support, or health services, together with any equivalent category of information protected under the Privacy Laws of Australia and New Zealand, to the extent applicable to a Customer.

Services means the software services and any related services provided by the Company under this Agreement, as described in the relevant Order Form. This includes any Integration, Subscription Services, Support Services, and any other services identified in the Order Form.

Subscription Plan means the subscription tier (Starter, Business, or Enterprise) selected by the Customer in the Order Form, setting out the scope, limits, and entitlements of the Services provided.

Support Services means the support and maintenance services to be provided by the Company in relation to the Services, including those described in the Order Form or in any applicable support policy published by the Company from time to time.

Taxes means all taxes, duties, levies, charges, or withholdings imposed by any government authority, including GST, VAT, sales tax, and similar consumption taxes, excluding taxes based on the Company's income, and Tax shall be construed accordingly.

Term means the duration of this Agreement, including the Initial Term and any Renewal Term.

Third-Party IP has the meaning given to it in the Intellectual Property clause.

1.2 Interpretation

In this Agreement, unless the context otherwise requires:

• the singular includes the plural and vice versa;
• a reference to a clause, paragraph, schedule or annexure is a reference to a clause, paragraph, schedule or annexure, as the case may be, of this Agreement;
• if any act which must be done under this Agreement is to be done on a day that is not a Business Day then the act must be done on or by the next Business Day;
• a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
• a reference to a person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
• includes and similar words mean includes without limitation;
• a reference to a Party to a document includes that Party's executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
• a reference to this Agreement or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
• a reference to time is to local time in Melbourne, Victoria, Australia;
• a reference to $ or dollars refers to the currency of Australia from time to time, unless another currency is expressly specified;
• headings are for convenience only and do not affect interpretation;
• where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
• no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it; and
• a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally.

In the event of any inconsistency or conflict between the documents comprising this Agreement, the following order of precedence applies (to the extent of the inconsistency):

• the Order Form (but only where it expressly overrides this Agreement);
• these Terms and Conditions; and
• any Company policies or documents provided to the Customer from time to time.

1.3 Form Requirements

All purchases of Services must be made using an Order Form. No other form or set of terms will apply.

Any pre-printed, linked, or system-generated terms contained in or referenced by a Customer procurement purchase order, vendor portal, requisition, or similar document are of no force or effect and are expressly rejected, regardless of whether such document is acknowledged or referenced by the Company.

If the Customer requires an internal reference for invoice processing, the Customer must provide it to the Company prior to the issue of the relevant invoice. The absence of a purchase order number or reference on an invoice will not affect the Customer's obligation to pay any Fees properly due under this Agreement or the relevant Order Form.

1.4 Multiple Orders

The Customer may submit multiple Order Forms during the Term. Each accepted and countersigned Order Form constitutes a separate commitment under this Agreement and sets out its own commercial details, including applicable Fees, scope, and any specific term for those Services.

Each accepted Order Form is governed by and forms part of this Agreement. If there is any inconsistency between the terms of an Order Form and this Agreement, the terms of this Agreement prevail unless the Order Form expressly states otherwise and is executed by an authorised representative of both Parties.

Unless otherwise stated in an Order Form, all Order Forms entered into under this Agreement will co-exist, and termination or expiry of one Order Form will not affect the validity of any other Order Form then in effect.

1.5 Variations and Changes

Quantities, entitlements, scope, or other commercial details under an existing Order Form may be varied at any time by a written variation referencing the affected Order Form and signed by authorised representatives of both Parties.

Reductions or downgrades in quantities, entitlements, or scope take effect at the commencement of the next billing cycle unless otherwise agreed in a written variation signed by both Parties. Any corresponding Fee adjustment will apply prospectively from that billing cycle.

No email, purchase order note, statement of work, click-through confirmation, portal submission, or other communication will vary, amend, or supersede any Order Form or the terms of this Agreement unless the variation is expressly recorded in a signed Order Form or a written variation executed by both Parties.

2. Subscription, Initial Term and Renewal

Unless this Agreement is otherwise terminated in accordance with its terms:

• this Agreement commences on the Effective Date, and will continue for the Initial Term.
• At the end of the Initial Term, this Agreement will automatically renew for the Renewal Term(s) (if any) specified in the Order Form, unless either Party gives the other Party written notice of non-renewal at least 90 days before the end of the then-current Term.
• The Customer agrees to receive and pay for the Services, and the Company agrees to provide the Services to the Customer, for the duration of the Term, subject to this Agreement.

Neither Party may terminate this Agreement for convenience during the Initial Term or any Renewal Term, except as provided in clause 3 (Opt-Out Period). The Agreement may only be terminated prior to the expiry of the Term in accordance with its express terms. For clarity, non-renewal in accordance with this Agreement does not constitute a breach of this Agreement.

3. Opt-Out Period

If an Opt-Out Period is specified in the Order Form, the Opt-Out Period commences on the Effective Date and forms part of the Initial Term. The Customer is liable for all Subscription Fees during the Opt-Out Period.

During the Opt-Out Period, the Customer may terminate the applicable Order Form by providing written notice to the Company. On such termination:

• the Customer's obligation to pay Subscription Fees ceases at the end of the month in which notice is given;
• no further Subscription Fees are payable for the remainder of the Initial Term; and
• the Customer remains responsible for any Services Fees and any other agreed one-off charges incurred by the Company prior to the date of termination.

If the Customer does not exercise the opt-out during the Opt-Out Period, the Initial Term continues for its full duration in accordance with clause 2.

For clarity, the opt-out right under this clause 3 applies only during the Opt-Out Period and does not limit the operation of clause 2 or any other termination provision in this Agreement.

4. Provision of Services and Licence

4.1 Licence Grant

Subject to the terms of this Agreement (including payment of the Fees), the Company grants to the Customer a limited, non-exclusive, non-transferable, non-sublicensable licence during the Term to access and use the Platform and related Services through its Accounts solely for the Permitted Purpose.

The licence permits the Customer and its Authorised Users to use the Platform and Services as described in the applicable Order Form. The Customer must not use the Platform or Services for any purpose other than the Permitted Purpose, or beyond the scope of use expressly permitted under this Agreement or the Order Form.

Except as expressly set out in this Agreement, all rights, title, and interest (including all Intellectual Property Rights) in and to the Platform, the Services, Company Data, and all related materials are retained by the Company.

4.2 Accounts, Customer Systems and Access

The Company will provide access credentials and configuration details necessary for the Customer and its Authorised Users to access the Platform via their Accounts.

The Customer is responsible for:

• establishing, maintaining, and securing its own Customer Systems, including all internet connections, hardware, software, and any third-party services or integrations required to access and use the Services;
• ensuring that the Customer Systems meet any minimum technical or security requirements reasonably specified by the Company from time to time;
• ensuring that all Accounts and access credentials are kept secure, confidential, and used only by Authorised Users; and
• ensuring that all use of the Services under its Accounts (including by Authorised Users) complies with this Agreement.

The Customer must promptly notify the Company of any actual or suspected unauthorised access to, or use of, any Account, the Platform, or the Customer Systems, or any other actual or suspected security breach in connection with the Services.

4.3 Acceptable Use

The Customer must, and must ensure its Authorised Users:

• use the Services only for the Permitted Purpose, in accordance with this Agreement, the applicable documentation or instructions provided by the Company, and all applicable laws; and
• comply with all reasonable usage, access, and security requirements notified by the Company from time to time.

Without limiting the above, the Customer must not (and must ensure its Authorised Users do not):

• reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, algorithms, or underlying structure of the Platform, except to the extent expressly permitted by applicable law despite this limitation;
• modify, adapt, translate, or create derivative works based on the Platform or any part of the Services, except as expressly permitted in writing by the Company;
• copy, reproduce, frame, mirror, or redistribute the Platform (or any part of it), or lease, rent, sell, sublicense, commercialise, or otherwise transfer or make available any part of the Services to a third party (other than Authorised Users for the Customer's internal operations);
• use the Services in a manner that interferes with or degrades the integrity, performance, or security of the Platform or any other user's access;
• introduce any virus, worm, trojan horse, malicious code, or other harmful material into the Platform;
• use the Platform to transmit, store, or process any unlawful, defamatory, obscene, or infringing material;
• use the Platform to infringe the Intellectual Property Rights or privacy rights of any person; or
• remove, obscure, or alter any proprietary notices, disclaimers, or branding appearing within the Platform or on any reports or materials generated by it.

The Customer indemnifies, and must keep indemnified, the Company, its affiliates, and their respective officers, employees, and agents from and against all Claims and Losses (including reasonable legal costs on a solicitor-client basis) arising out of or in connection with:

• any breach of this clause 4.3 by the Customer or any of its Authorised Users;
• any unauthorised, unlawful, or negligent use of the Platform or Services by the Customer, its Authorised Users, or any person accessing the Services through the Customer Systems or Accounts; or
• any data, content, or material uploaded, transmitted, or processed by or on behalf of the Customer through the Platform that infringes any third party's rights or violates applicable law,

except to the extent that the relevant Claim or Loss is caused or contributed to by the fraud, wilful misconduct, or gross negligence of the Company or its officers, employees, or duly authorised agents.

4.4 Regulatory Status

The Platform is not a medical device, therapeutic good, or clinical decision support system within the meaning of:

• in Australia, the Therapeutic Goods Act 1989 (Cth) and the Therapeutic Goods (Excluded Goods) Determination 2018 (Cth); or
• in New Zealand, the Medicines Act 1981 (NZ) and, when commenced, the Therapeutic Products Act 2023 (NZ),

or any amendments, re-enactments, or replacement legislation (collectively, the Applicable Therapeutic Goods Laws).

The Platform is an administrative and information management tool and must not be used or relied upon for:

• medical diagnosis, screening, or prognosis;
• clinical advice, clinical decision support, or treatment recommendations;
• the prescription, dispensing, or administration of medication;
• the monitoring, prediction, or management of a disease, condition, ailment, or defect in any individual; or
• any other purpose that would cause the Platform to constitute a "medical device" as defined in section 41BD of the Therapeutic Goods Act 1989 (Cth) or a "medical device" or "related product" as defined in section 2 of the Medicines Act 1981 (NZ) (or, when commenced, the equivalent definitions under the Therapeutic Products Act 2023 (NZ)).

Any information provided by the Platform, including information generated by artificial intelligence, is for informational and administrative purposes only and does not constitute medical or clinical advice. The Customer retains sole responsibility for all clinical decisions, care planning, and treatment decisions relating to its care recipients, and must ensure that qualified health practitioners are involved in all clinical and care-related decisions.

4.5 Customer Responsibilities and Cooperation

The Customer must provide reasonable cooperation, assistance, and information as requested by the Company to enable the proper delivery of the Services, including for integration with the Customer Systems, configuration of Accounts, and user setup.

The Customer must comply with any applicable policies or reasonable guidelines issued by the Company from time to time (such as security, privacy, or acceptable use policies).

4.6 Company Obligations and Service Delivery

The Company will provide the Services:

• with due care, skill, and diligence consistent with generally accepted industry standards for similar services;
• in accordance with this Agreement, the Order Form, and all applicable laws; and
• using reasonable commercial efforts to ensure the Platform is available and functional, except during planned maintenance or a Force Majeure Event.

4.7 Support Services, Service Levels and Outages

During the Term, the Company will provide the Support Services as described in the Order Form or any applicable support policy provided to the Customer from time to time.

The Customer acknowledges that resolution times will depend on the nature and complexity of the issue reported, and that the Company does not guarantee specific response or resolution times unless expressly stated in writing.

The Company may, from time to time, undertake maintenance in respect of the Platform and implement updates, patches, enhancements, or modifications to improve performance, address security or functionality issues, or comply with applicable laws. Such updates will not materially reduce the functionality of the Services. The Company will use reasonable efforts to schedule planned maintenance outside of peak usage hours and provide advance notice of at least 48 hours (via email or in-Service notification) where the downtime is expected to be material.

If the Company, acting reasonably, determines that there has been an outage or Service unavailability (other than as permitted under this Agreement or resulting from a Force Majeure Event, Customer Systems, or breach by the Customer), the Company will apply a pro-rata adjustment or credit to the Fees payable for the affected period. Any such adjustment or credit will constitute the Customer's sole and exclusive remedy in respect of that outage or unavailability. Service credits in any billing month will not exceed the Fees payable for that month.

If the Services fail to operate in material conformity with this Agreement, the Customer must notify the Company in writing, describing the issue in reasonable detail. The Company will use commercially reasonable efforts to investigate and correct the issue or provide a suitable workaround within a reasonable period. An Event of Default will be deemed to have occurred if the Company is unable to restore the Services to material conformity with this Agreement within a reasonable period (not exceeding 30 days from the date of the Customer's written notice, unless otherwise agreed in writing). Except as expressly provided in this clause or elsewhere in this Agreement, the Customer is not entitled to any other compensation or refund in connection with Service downtime, errors, or defects.

The Company does not provide any service level commitment, uptime guarantee, or availability warranty in respect of any Integration. An Integration depends on the availability, performance, and cooperation of the Customer's external systems, which are outside the Company's control. Any outage, degradation, or interruption of an external system connected via an Integration does not constitute an outage or unavailability of the Platform or the Services for the purposes of this Agreement, and no service credit, fee adjustment, or other remedy will apply in respect of such events.

The Customer acknowledges that the Services, like any software service, may experience downtime or errors from time to time. Except as expressly provided in this Agreement, the Company does not warrant that:

• the Services will be uninterrupted or error-free;
• all defects can or will be corrected; or
• the Services will meet all of the Customer's specific requirements or deliver any particular commercial outcome.

The Customer acknowledges that outputs generated by Minis or other AI features are probabilistic and may contain errors. The Customer is responsible for verifying outputs and making final decisions based on those outputs.

Except as expressly set out in this Agreement and to the extent permitted by law, the Services are provided on an "as is" and "as available" basis.

4.8 Suspension of Access

The Company may temporarily suspend access to the Platform or Services (in whole or in part) if:

• it is necessary to perform maintenance, updates, or emergency repairs;
• the Company reasonably believes suspension is required to prevent or mitigate a security incident, data breach, or unauthorised access;
• the Customer has failed to pay any Fees when due and such failure is not remedied within 14 days of written notice; or
• the Customer or any of its Authorised Users has breached this Agreement.

Where practicable, the Company will give the Customer prior notice of any suspension and will use reasonable efforts to restore access as soon as possible.

5. Intellectual Property

5.1 Ownership of Company IP

The Customer acknowledges that, as between the Parties, the Company (and its licensors) owns and retains all rights, title, and interest in and to the Platform, the Services, the Company Data, and all related software, technology, documentation, templates, tools, configurations, know-how, and materials (collectively, Company IP), including all Intellectual Property Rights therein.

Except for the limited licence expressly granted to the Customer under this Agreement, nothing in this Agreement transfers or assigns any Intellectual Property Rights in the Platform, the Services, or any other Company IP to the Customer. All rights not expressly granted are reserved by the Company.

The Customer must not represent that it owns, or do or permit any act that infringes, misappropriates, or otherwise violates, the Company's Intellectual Property Rights.

5.2 Licence to Customer

The Company grants the Customer a limited, non-exclusive, royalty-free, revocable licence during the Term to use the Company's Intellectual Property Rights solely as necessary for the Customer to access and use the Platform and Services for the Permitted Purpose, in accordance with this Agreement.

This licence includes the right to display or use the Company's branding, trade marks, or other materials embodying the Company's Intellectual Property Rights within the Platform or in the Customer's internal materials as reasonably required for the Permitted Purpose.

The Customer must:

• use any of the Company's Intellectual Property Rights strictly in accordance with the Company's reasonable usage or brand guidelines (as notified from time to time); and
• not use any of the Company's Intellectual Property Rights in any manner that is misleading, defamatory, unlawful, or implies endorsement, sponsorship, or affiliation, except as expressly permitted under this Agreement.

All goodwill arising from the Customer's use of any of the Company's Intellectual Property Rights will vest automatically in the Company.

Except for the limited rights expressly granted under this Agreement, no rights, title, or interest in or to the Platform, Services, Company Data, or any related Intellectual Property Rights are transferred or granted to the Customer.

5.3 Developed IP

All Developed IP (including any enhancements, updates, improvements, new features, or derivative works relating to the Platform or Services, whether created by or on behalf of the Company, by the Customer, or jointly) will be owned exclusively by the Company upon creation. To the extent any Intellectual Property Rights in Developed IP do not automatically vest in the Company, the Customer assigns (and must procure that its personnel assign) all such rights to the Company. The Customer must execute all documents and do all acts reasonably required to give effect to this clause.

5.4 Ownership of Customer IP

The Company acknowledges that, as between the Parties, the Customer owns and retains all rights, title, and interest in and to the Customer Data, and any pre-existing materials, systems, or information provided or made available by the Customer for use with the Services, including all Intellectual Property Rights therein (Customer IP).

The Customer grants the Company a limited, non-exclusive licence to use the Customer IP solely as necessary to provide the Services and perform its obligations under this Agreement.

Except as expressly provided in this Agreement, nothing in this Agreement transfers or assigns any ownership of Customer IP to the Company.

5.5 Protection of Intellectual Property Rights

The Customer must not, and must ensure its Authorised Users do not:

• challenge, contest, or assist any third party to challenge or contest the ownership, validity, or enforceability of the Company's Intellectual Property Rights; or
• register, attempt to register, or use any name, mark, or domain that is identical or confusingly similar to any used or owned by the Company.

Upon written request, the Customer must provide reasonable assistance (at the Company's expense) in protecting or enforcing the Company's Intellectual Property Rights, including executing documents or information reasonably required for registration, maintenance, or enforcement.

5.6 Third-Party Intellectual Property

The Platform may incorporate, access, or rely on certain software, data, components, or services licensed or provided by third parties (Third-Party IP).

The Customer must use any Third-Party IP made available through the Services solely in conjunction with the Services and in accordance with any additional terms, restrictions, or usage conditions notified by the Company or the relevant third-party provider from time to time.

All rights, title, and interest (including all Intellectual Property Rights) in and to any Third-Party IP remain vested in the applicable third-party owner or licensor.

The Company represents and warrants that it has, and will maintain during the Term, all rights, licences, and authorisations necessary to enable the Customer to access and use any Third-Party IP that is integral to the Platform or the provision of the Services, as contemplated by this Agreement.

The Company is not responsible for any unavailability, change, or discontinuation of any Third-Party IP that does not materially affect the core functionality of the Platform or the Services.

5.7 Intellectual Property Indemnities

The Company indemnifies and must keep indemnified the Customer from and against any third-party Claim that the Platform, Services, or any Company IP (excluding any Customer Data, Customer IP, or Third-Party IP) infringes that third party's Intellectual Property Rights, provided that the Customer:

• promptly notifies the Company of the Claim;
• permits the Company to assume sole control of the defence and settlement of the Claim should it elect to do so; and
• provides the Company with all reasonable assistance (at the Company's cost).

If any part of the Platform or Services becomes, or in the Company's reasonable opinion is likely to become, the subject of an infringement Claim, the Company may, at its option and expense:

• procure the right for the Customer to continue using the affected Services;
• modify or replace the affected component to make it non-infringing; or
• if neither of the above is commercially feasible, terminate the affected Services and refund to the Customer any prepaid Fees covering the period after termination.

The Company's obligations under this clause do not apply to the extent that the Claim arises from:

• any Customer Data, Customer IP, or third-party materials;
• the Customer's modification or combination of the Services with any item not supplied or approved in writing by the Company; or
• use of the Services in breach of this Agreement.

For the avoidance of doubt, this clause 5.7 sets out the Company's entire liability and the Customer's sole remedy for any infringement of third-party Intellectual Property Rights in connection with the Services.

The Customer indemnifies and must keep indemnified the Company from and against any Claim or Loss arising out of or in connection with any third-party allegation that the Customer Data or the use of Customer Data in accordance with this Agreement infringes any Intellectual Property Rights or other rights of a third party, or breaches any applicable law.

6. Fees

6.1 Obligation to Pay Fees

The Customer agrees to pay the Fees for the Services as set out in the Order Form. Except as expressly stated in this Agreement or the applicable Order Form, all Fees are non-cancellable and non-refundable.

All Fees are stated in Australian dollars and are exclusive of any applicable Taxes (unless otherwise stated), which shall be treated in accordance with clause 6.5.

The Company will issue invoices for the Fees in accordance with the billing frequency specified in the Order Form, or if not specified, monthly in advance. Each invoice will set out a description of the Services provided, the Fees payable, and any applicable Taxes.

The Customer must pay each valid and undisputed invoice within 30 days (or such other period as set out in the Order Form) from the date of the invoice, by electronic funds transfer in immediately available funds to the bank account nominated by the Company in writing from time to time, without set-off, counterclaim or deduction.

If the Customer disputes any portion of an invoice, it must notify the Company in writing within 10 Business Days of receiving the invoice, setting out reasonable details of the dispute. The Customer must pay the undisputed portion of the invoice by the due date, and the Parties will work in good faith to resolve the disputed portion promptly.

6.2 Failure to Pay

If the Customer fails to make any payment by the due date (and the payment is not subject to a bona fide dispute under clause 6.1), the Company may, without limiting any other rights or remedies:

• charge interest on the overdue amount at a rate of 4% per annum above the Reserve Bank of Australia cash rate target, calculated daily until payment is received;
• suspend access to the Services until all overdue amounts (including interest) are paid in full; and
• terminate this Agreement for material breach, and recover any unpaid Fees and accrued interest as a liquidated debt.

6.3 CPI Adjustment

The Company may adjust the Fees annually in line with changes in the Australian Consumer Price Index. In particular, on no more than one occasion in any 12-month period, the Company may increase subscription Fees by an amount up to the percentage change in the Consumer Price Index (All Groups, Weighted Average of Eight Capital Cities) published by the Australian Bureau of Statistics over the most recent year for which CPI data is available.

Any CPI-based Fee adjustment will take effect from the start of the next Renewal Term or the next annual billing period (as applicable) following the adjustment. The Company will provide the Customer with at least 60 days' written notice of any CPI-based Fee increase, including reference to the CPI data used to calculate the percentage change.

If the Australian Bureau of Statistics ceases to publish the above index or materially alters it, the Company may apply a comparable index or method to calculate Fee adjustments, by notifying the Customer in writing.

The Customer acknowledges that annual CPI-linked increases under this clause do not constitute a modification of the Fees requiring separate agreement, as this mechanism is accepted upon entering into this Agreement. The Customer's continued use of the Services into the relevant Renewal Term or billing period after the effective date of a CPI-based increase will be deemed acceptance of the adjusted Fees.

For clarity, if the CPI change for the relevant period is negative (deflation), Fees will not automatically decrease and will remain unchanged unless otherwise agreed by the Parties in writing.

Nothing in this clause limits the Company's ability to adjust the Fees for any Renewal Term by a lesser amount or to forego a CPI-based increase in any given year at its discretion.

6.4 API Access, Pricing and Usage

If the Customer's Order Form includes access to the Company's application programming interface (API), the Customer may use the API to enable data synchronisation between the Platform and the Customer Systems, subject to the API entitlements and Fees specified in the Order Form.

The Company may structure API Fees based on usage metrics (for example, the number of API calls, users, or records synchronised). Where the Customer's usage exceeds the included API entitlement stated in the Order Form, the excess usage will be measured and charged on a metered basis at the applicable rates set out in the Order Form.

The Company will monitor the Customer's API usage, and will provide, upon reasonable request, reporting or metrics (such as API call volumes) to substantiate any usage-based charges.

All API usage Fees, including any charges for excess usage, form part of the Fees payable under this Agreement and will be invoiced in accordance with clause 6.1. The Customer agrees to pay all such Fees in accordance with this Agreement.

The Company may implement reasonable rate limits, throttling, or other technical safeguards on API access to maintain Platform performance, security, or integrity, or to prevent excessive or unauthorised use.

The Customer must use the API strictly in accordance with the Company's applicable documentation, technical specifications, and any reasonable usage guidelines notified from time to time, and must not use the API in a manner that interferes with the Platform, breaches this Agreement, or infringes any Intellectual Property Rights.

6.5 Tax

Each Party is responsible for its own income, corporate, or other Taxes imposed on its income, profits, or gains arising from this Agreement.

The Customer is not required to deduct or withhold any Taxes from the Fees, except where such deduction or withholding is required by applicable law. If withholding is required, the Customer must:

• promptly notify the Company of the requirement; and
• provide reasonable assistance and documentation (at the Company's cost) to enable the Company to claim any exemption, reduction, or credit available in respect of the withholding.

All GST and any equivalent value-added or goods and services taxes under the laws of any relevant jurisdiction (including, for Customers established in New Zealand, the New Zealand Goods and Services Tax Act 1985) will be applied, invoiced, and paid in accordance with applicable legislation. The Company will issue valid tax invoices that comply with the relevant legislative requirements, and the Customer must pay the GST (or equivalent tax) in addition to the Fees at the same time and in the same manner as the Fees.

6.6 Third-Party Billing Services

The Company may engage third-party payment processors or services (for example, online payment gateways or platforms) to facilitate the billing, collection, and processing of Fees.

The Customer may elect to make payments using such third-party payment services, and acknowledges that those services are operated independently of the Company. The Company is not responsible for the performance, availability, or security of any third-party payment service.

The Customer must comply with any terms and conditions imposed by the applicable third-party payment service. Use of a third-party payment service is at the Customer's own risk.

The Company will use reasonable efforts to ensure that any third-party payment processor it engages complies with appropriate industry security and privacy standards.

7. Feedback

If the Customer or any of its Authorised Users provides the Company with any suggestions, ideas, enhancement requests, recommendations, or other feedback relating to the Platform or Services (Feedback), the Customer acknowledges and agrees that:

• all Feedback is provided voluntarily and without obligation of confidence or compensation;
• the Company may freely use, copy, modify, incorporate, and otherwise exploit such Feedback in its products, services, and operations without restriction or obligation to the Customer; and
• all Intellectual Property Rights in any Feedback will immediately vest in the Company upon creation, and to the extent any such rights do not automatically vest, the Customer hereby irrevocably assigns (and must ensure that its personnel and Authorised Users assign) all such rights, title, and interest in and to the Feedback to the Company.

8. Data and Privacy

8.1 Customer Data

The Customer retains all rights, title, and interest in and to the Customer Data.

The Customer grants the Company a non-exclusive, worldwide, royalty-free licence during the Term to host, use, process, copy, transmit, store and display Customer Data solely as necessary to provide the Services, comply with law, including applicable Privacy Laws, and perform the Company's obligations under this Agreement.

The Company must not use Customer Data for any other purpose without the Customer's written consent.

In providing the Services, the Company must comply with:

• its then-current privacy policy (as published on its website), provided that such policy does not reduce or limit the Company's obligations under this Agreement or applicable Privacy Laws; and
• all applicable Privacy Laws, to the extent they apply to the Company.

8.2 Customer Data Obligations and Indemnity

The Customer is responsible for ensuring that its collection, use and disclosure of Customer Data (including any Personal Information or Sensitive Information) comply with all applicable Privacy Laws.

Without limiting the above, the Customer must:

• obtain and maintain all consents, authorisations and notices required under Privacy Laws to permit the Company to handle Customer Data as contemplated by this Agreement;
• procure, prior to uploading, entering, or sharing any Care Recipient information through the Platform, a duly executed Consent Form from each Care Recipient (or their Authorised Representative) that authorises the collection, storage, use, and sharing of their Personal Information and Sensitive Information through the Platform as described in that form;
• ensure that each Consent Form remains current, valid, and applicable to all intended uses and disclosures of Customer Data, including data sharing between care providers for coordination or continuity of care;
• on request by the Company, promptly provide copies of the relevant executed Consent Form(s) (redacted where reasonably necessary) or other evidence reasonably required to verify that valid consent has been obtained and remains current; and
• not upload or provide any Customer Data that the Customer is not lawfully entitled to disclose for the purposes of the Services.

The Company will maintain reasonable administrative, physical, and technical safeguards to protect Customer Data that are appropriate to the nature and sensitivity of the Customer Data and proportionate to the risk and will promptly notify the Customer upon becoming aware of any unauthorised access to or disclosure of Customer Data.

The Customer indemnifies the Company, its officers, employees and agents against all Claims and Losses (including reasonable legal costs) arising out of or in connection with:

• any breach by the Customer of this clause 8.2;
• any failure by the Customer to comply with Privacy Laws in relation to Customer Data; or
• any Claim by a Data Subject, Care Recipient or regulator arising from the Customer's handling of Customer Data,

except to the extent caused or contributed to by the fraud, wilful misconduct or gross negligence of the Company or its personnel.

8.3 Data Portability and Care Continuity

The Customer acknowledges that, under the Consent Form, each Care Recipient (or their Authorised Representative) may consent to the collection, storage, use, and sharing of their Personal Information and Sensitive Information through the Platform for the purposes of coordinating and delivering care, including where the Care Recipient transfers to or begins receiving services from another customer of the Company.

The Customer must ensure that a valid and current Consent Form is obtained and maintained for each Care Recipient whose information is uploaded or shared through the Platform, and that such consent expressly authorises the Company to make the Care Recipient's information available to other care providers and, where the other care provider or relevant system is located outside Australia or New Zealand, expressly acknowledges the overseas disclosure through the Platform for coordination or continuity of care, in accordance with applicable Privacy Laws.

Where a Care Recipient's care is transitioned to, or supported by, another customer that also uses the Platform, the Customer authorises the Company to facilitate the secure transfer or sharing of that Care Recipient's relevant Customer Data with the new Customer, strictly in accordance with:

• the Care Recipient's (or their Authorised Representative's) consent as documented in the Consent Form;
• the requirements of applicable Privacy Laws, including ensuring that any cross-border disclosure complies with applicable Privacy Laws and occurs only where the recipient is subject to privacy protections substantially similar to those under the applicable Privacy Laws, or where otherwise required or authorised by applicable law; and
• the Company's privacy policy and technical safeguards designed to protect data integrity and security.

The Customer acknowledges and agrees that:

• the Company is authorised to act on the consent provided in the Consent Form when facilitating any data sharing or transfer between care providers for continuity of care and the Company may, acting reasonably, rely on the Customer's representation that a valid and current Consent Form covers the intended transfer and may decline to facilitate a transfer where such consent is not reasonably evidenced;
• each Customer receiving such data does so as an independent organisation or agency responsible for compliance with applicable Privacy Laws in respect of the Personal Information it receives and is solely responsible for its own handling, use, and disclosure of that data in compliance with applicable law and this Agreement; and
• the Customer's authorisation under this clause 8.3 constitutes a documented instruction for the Company to process Customer Data on the Customer's behalf for the purposes of clause 8.8.

For clarity, nothing in this clause permits the Company to use or disclose Customer Data other than as authorised under this Agreement or the Care Recipient's consent (as provided in the Consent Form).

Without limiting clause 8.2, the Customer indemnifies and must keep indemnified the Company, its officers, employees, and agents from and against all Claims and Losses (including reasonable legal costs) arising out of or in connection with any Claim resulting from:

• the Customer's failure to obtain or maintain a valid Consent Form from a Care Recipient (or their Authorised Representative) in accordance with this Agreement;
• any breach by the Customer of this clause 8.3 or of applicable Privacy Laws in relation to Customer Data; or
• any unauthorised collection, use, or disclosure of Personal Information or Sensitive Information by the Customer or its personnel,

except to the extent that the relevant Claim or Loss is caused or contributed to by the fraud, wilful misconduct, or gross negligence of the Company or its officers, employees, or duly authorised agents.

8.4 Outputs and Derived Data

Any outputs, reports, or analytics generated by the Platform that are specifically derived from the Customer's own Customer Data and delivered to the Customer constitute Customer Data and remain the property of the Customer. For clarity, any aggregation or de-identification performed by the Company must result in data that cannot reasonably identify the Customer or any individual. The Company retains ownership of the underlying software, algorithms, models, and methodologies used to generate such outputs, and no rights in or to those tools are granted to the Customer.

8.5 Company Data

The Company may collect and generate Company Data in the course of providing the Services. All Company Data is and shall remain the property of the Company.

The Company may use Company Data for any lawful purpose, including to monitor, analyse, and improve the Services, develop new features, and compile statistical or performance information, provided that any disclosure of Company Data to third parties or the public will be in aggregated or anonymised form that cannot reasonably be used to identify the Customer or any individual.

The Company will not publicly identify the Customer as the source of any Company Data without the Customer's prior written consent.

8.6 Data Security

The Company will implement and maintain administrative, physical, and technical safeguards that are consistent with industry standards for similar SaaS services and appropriate for the nature of the Customer Data, including role-based access controls, encryption in transit and at rest for Customer Data stored by or on behalf of the Company, and access logging for systems hosting Customer Data.

While the Company takes reasonable steps to protect Customer Data, the Customer acknowledges that no method of internet transmission or electronic storage is entirely secure.

In the event of any actual or suspected data breach involving Customer Data, the Company will notify the Customer without undue delay and in any event within 72 hours of becoming aware, provide the Customer with information reasonably required to assess the breach, and provide reasonable assistance to enable the Customer to comply with any mandatory data breach notification obligations under applicable Privacy Laws.

The Company may host or process Customer Data in Australia, New Zealand or other jurisdictions using reputable third-party providers. Where Customer Data is disclosed or transferred outside Australia or New Zealand, the Company must ensure that the recipient is subject to privacy protections substantially similar to those under the applicable Privacy Laws or that another exception under applicable Privacy Laws applies. The Company will notify the Customer of the primary hosting region on request and will take reasonable steps, including through written contractual terms, to ensure any overseas recipient protects Customer Data in a manner comparable to the applicable Privacy Laws.

8.7 Data Backup and Retrieval

The Customer is responsible for maintaining its own backup copies of Customer Data. The Company performs routine backups for its own disaster-recovery purposes but does not guarantee that specific Customer Data can be restored on demand.

Upon reasonable request (and subject to additional fees where retrieval requires material effort), the Company will assist the Customer in exporting or retrieving available Customer Data during the Term in a commonly used, machine-readable format.

8.8 Privacy and Health Information

If Customer Data includes Personal Information or Sensitive Information (including health, disability, or care-related information), each Party must comply with all applicable Privacy Laws governing such information.

Each Party must provide reasonable cooperation including responding to reasonable written requests within a commercially reasonable period not exceeding 10 Business Days to enable the other to meet its obligations under Privacy Laws, including in relation to:

• data breach notification;
• responding to access or correction requests; and
• communications with regulators.

The Customer acknowledges that it acts as the organisation or agency responsible for compliance with applicable Privacy Laws in respect of Customer Data, determining the purposes and means of processing, and that the Company acts as a data processor or service provider, processing such Customer Data only on the Customer's documented instructions as set out in this Agreement.

The Company will process Customer Data only on the Customer's documented instructions, to the extent required under applicable Privacy Laws, set out in this Agreement, including instructions inherent in use of the Services and any written instructions the Customer provides from time to time, except where processing is required by law.

8.9 Return and Destruction

Within 30 days following termination or expiry of this Agreement, the Customer may request in writing that the Company:

• return all Customer Data in a standard, machine-readable format reasonably determined by the Company; or
• permanently delete all Customer Data from its active systems, and where deletion is requested, provide a deletion confirmation to the Customer upon completion, except as permitted under this clause 8.9.

Notwithstanding anything in this Agreement to the contrary, the Company may retain Customer Data to the extent:

• required by law or regulatory obligation;
• necessary to maintain business records or demonstrate compliance with its obligations; or
• necessary to comply with the Care Recipient's express consent to continuity of care under clause 8.3 and the Consent Form, provided such retention and access are consistent with the Care Recipient's Consent Form and applicable Privacy Laws.

Any retained Customer Data will remain subject to the confidentiality, privacy, and data security obligations set out in this Agreement.

9. Confidentiality and Announcements

9.1 Confidentiality Obligations

Subject to clause 9.2, each Party must keep the terms of this Agreement and all Confidential Information strictly confidential and must not disclose, use, or permit the disclosure or use of any Confidential Information except as permitted under this clause 9 or otherwise authorised in writing by the disclosing Party.

9.2 Permitted Disclosures

A Party may make disclosures that are otherwise prohibited by clause 9.1:

• with the prior written consent of the other Party;
• to its employees, officers, professional advisers, auditors, insurers, contractors, or financiers who have a genuine need to know the information for the purposes of this Agreement, provided that those recipients are bound by confidentiality obligations no less protective than those set out in this clause;
• where disclosure is required by law, regulation, a stock exchange, or the order of a court or competent government authority; or
• to the extent necessary to enforce or perform its rights or obligations under this Agreement, or to resolve any dispute arising in connection with it.

9.3 Media Releases, Announcements and Testimonials

Except as expressly permitted under this Agreement, neither Party may make or permit any public announcement, media release, marketing communication, or public statement relating to this Agreement, the Services, or the other Party (including any reference to the other Party's name, trade mark, or logo) without the prior written consent of the other Party.

The Customer must not issue any testimonials, endorsements, or case studies referring to the Company, its products, or the Services without the Company's prior written consent.

The Company must not use the Customer's name, logo, or brand in any marketing materials, case studies, or client lists without the Customer's prior written consent.

Consent under this clause may be withheld at a Party's sole discretion, and any consent once given may be revoked by written notice at any time, with reasonable notice to the other Party. Revocation does not require the recall of materials already published.

9.4 Remedies

Each Party acknowledges and agrees that monetary damages may not be an adequate remedy for a breach of this clause 9. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 9.

9.5 Survival

The obligations in this clause 9 survive the expiry or termination of this Agreement.

10. Warranties

10.1 Mutual Warranties

Each Party represents and warrants that:

• it has read and understood the terms of this Agreement;
• it is not the subject of an Insolvency Event as at the Effective Date and has the financial capacity to perform its obligations under this Agreement;
• where the Party is a corporation, neither it nor its officers, directors, employees or agents has made any promise, representation, warranty, or inducement, or engaged in any conduct material to each other Party's decision to enter into this Agreement, other than as expressly set out in this Agreement;
• it has obtained, or had an opportunity to obtain, independent legal advice concerning the terms and the effect of this Agreement;
• it is aware that each other Party has entered into this Agreement in reliance on the accuracy of the warranties contained in this Agreement;
• entry into and performance of this Agreement will not invalidate or contravene any agreement, understanding, or arrangement to which it is a party; and
• it has absolute and complete authority, power and capacity to enter into this Agreement, and has taken all necessary actions required to enter into this Agreement, to authorise the execution of this Agreement and to perform its obligations under this Agreement.

10.2 Exclusion of Other Warranties

To the maximum extent permitted by law, and subject to clause 10.3, all other representations, warranties, guarantees, or conditions, whether express, implied, or statutory, are excluded. Without limitation, the Company does not warrant that the Services will achieve any particular outcome, revenue, or performance result for the Customer's business. The Customer acknowledges that it uses and relies on the Services and any outputs or recommendations at its own risk.

10.3 Non-Excludable Rights

Nothing in this Agreement excludes, restricts, or modifies any rights or remedies which cannot lawfully be excluded, restricted, or modified, including rights under the Competition and Consumer Act 2010 (Cth) and any equivalent consumer protection legislation (collectively, Non-Excludable Rights).

If any warranty or condition is implied into this Agreement by law and cannot be excluded, then to the extent permitted by law, the Company's liability for breach of that warranty or condition is limited (at the Company's option) to:

• resupplying the Services; or
• paying the cost of having the Services resupplied.

10.4 Limitations

To the fullest extent permitted by law, neither Party is liable to the other for any indirect, special, incidental, or consequential loss, or for loss of profit, revenue, anticipated savings, goodwill, opportunity, or data, arising out of or in connection with this Agreement, whether in contract, tort (including negligence), equity, statute, or otherwise, and even if that Party has been advised of the possibility of such loss.

Subject to clause 10.4, a Party's total aggregate liability to the other for all Claims arising out of or in connection with this Agreement is limited to the total Fees paid or payable by the Customer in the 12 months immediately preceding the event giving rise to the Claim (or, if the event occurs during an Opt-Out Period or before 12 months of paid service have elapsed, the Fees that would be payable for 12 months of the Services at the rates in the Order Form).

Liability will be reduced to the extent the other Party (or its personnel, contractors, or third-party providers) caused or contributed to the relevant Loss.

The cap in clause 10.4 does not apply to:

• death or personal injury caused by a Party's negligence;
• fraud or fraudulent misrepresentation;
• the Customer's obligation to pay Fees and Taxes;
• any indemnity provided by the Customer under this Agreement;
• any Loss that cannot be limited at law; or
• the Customer's breach of clause 4.3 (Acceptable Use).

Notwithstanding anything in this Agreement to the contrary, a Party must not recover compensation or damages more than once in respect of the same Claim, loss, liability, or event, whether under this Agreement, in tort (including negligence), in equity, under statute, or otherwise at law, including any recovery from a third party.

11. Termination

11.1 Event of Default

Either Party may terminate this Agreement immediately by written notice if an Event of Default occurs in respect of the other Party and, where the default is capable of remedy, it is not remedied within the applicable cure period set out in the definition of Event of Default or within 30 days after written notice specifying the default.

If the Company terminates this Agreement due to an Event of Default by the Customer, all unpaid Fees accrued prior to termination become immediately due and payable, and the Customer must pay an early termination fee equal to 50% of the Fees that would have been payable for the remainder of the Term.

11.2 Force Majeure

A Party is not liable for any delay or failure to perform its obligations under this Agreement (other than an obligation to pay money) to the extent caused by a Force Majeure Event.

The affected Party must promptly notify the other of the nature, expected duration, and impact of the Force Majeure Event and take reasonable steps to mitigate its effects.

Obligations suspended due to a Force Majeure Event must be resumed as soon as reasonably practicable.

If the Force Majeure Event prevents performance for more than 45 consecutive days, either Party may terminate this Agreement by written notice without further liability (other than for amounts accrued prior to termination).

The Customer's obligation to pay undisputed Fees for Services already rendered is not excused by a Force Majeure Event, except where the event directly prevents payment processing.

11.3 Effect of Termination

Upon expiry or termination of this Agreement for any reason (including on expiry or non-renewal in accordance with this Agreement):

• all licences granted to the Customer under this Agreement will immediately cease;
• the Company may disable the Customer's Account and access to the Platform and Services; and
• each Party must promptly return or destroy (at the other Party's election) the other Party's Confidential Information and any Customer Data, subject to any retention permitted in accordance with this Agreement.

Termination does not affect any rights, remedies, obligations, or liabilities that have accrued up to the effective date of termination, including any right to claim damages for prior breach of this Agreement.

The following clauses shall survive termination or expiry of this Agreement:

• 1 (Definitions and Interpretation);
• 4.3 (Acceptable Use) to the extent of accrued breaches;
• 5 (Intellectual Property);
• 6 (Fees) for accrued amounts and Tax treatment;
• 7 (Feedback);
• 8.3 and 8.9 (Data and Privacy);
• 9 (Confidentiality);
• 10 (Warranties and Limitations);
• 11.3 (Effect of Termination);
• 14 (General); and
• any other provision which by its nature is intended to survive.

12. Insurance

Each Party must obtain and maintain, at its own cost, insurance coverage in amounts sufficient to meet its obligations and potential liabilities under this Agreement for the duration of the Term.

13. Dispute Resolution

If a dispute arises out of or in connection with this Agreement, neither Party may commence legal proceedings (except for urgent injunctive or declaratory relief) unless it has first complied with this clause.

A Party claiming a dispute must give written notice to the other Party setting out the nature of the dispute, the issues in dispute, and the relief sought (Dispute Notice).

Within 10 Business Days after a Dispute Notice is given (or such longer period as the Parties may agree), senior representatives of each Party must meet in good faith to try to resolve the dispute. The meeting may be held in person or virtually.

If the dispute is not resolved within 20 Business Days after the Dispute Notice is given, the Parties agree to attempt to resolve it by mediation before commencing litigation. The mediation must be conducted in Melbourne, Victoria under the Resolution Institute Mediation Rules, or by a mediator agreed by the Parties (or appointed by the Resolution Institute if they cannot agree).

Each Party must continue to perform its obligations under this Agreement, so far as reasonably practicable, while any dispute is being resolved under this clause.

Each Party must pay its own costs of complying with this clause, and the mediator's costs must be shared equally.

Nothing in this clause prevents a Party from seeking urgent injunctive or equitable relief where failure to do so could cause irreparable harm.

14. General

14.1 Notices

A notice or other communication given under this Agreement must be:

• in writing, in English and signed by the sender; and
• addressed and delivered to the intended recipient by hand, prepaid post or email in accordance with the notice details last notified by the recipient.

A Party's notice details are set out in the Order Form. A Party may change its notice details by written notice to the other Party.

A notice or communication is taken as having been given:

• when left at a Party's current address for notices;
• if mailed, on the third Business Day after posting (if delivered to an address within the same country) or on the tenth Business Day after posting (if delivered to an address within another country); or
• if sent by email, if sent before 5pm on a Business Day in the place of receipt then on the Business Day when it is sent, otherwise on the following Business Day, and provided that the sender does not receive notification that delivery of the email has failed.

14.2 Waiver

Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this Agreement does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right.

A waiver must be in writing and will be effective only to the extent specifically set out in it.

14.3 Powers, Rights and Remedies

Except as provided in this Agreement or permitted by law, the powers, rights and remedies of a Party under this Agreement are cumulative and in addition to any other powers, rights and remedies the Party may have.

14.4 Assignment and Subcontracting

Subject to clause 14.4, neither Party may assign, novate, transfer or otherwise deal with all or any of its rights or obligations under this Agreement without the prior written consent of the other Party. Any purported assignment, transfer, novation or dealing in breach of this clause 14.4 is of no force or effect.

The Company may subcontract its obligations, including to cloud and support providers, provided the Company remains responsible for the performance of the Services and ensures subcontractors are bound by obligations no less protective than those in this Agreement.

14.5 Further Assurance

Each Party must promptly do all things and execute all further documents necessary to give full force and effect to this Agreement and their obligations under it.

14.6 Costs and Expenses

Unless otherwise stated in this Agreement, each Party must pay its own costs and expenses (including legal costs) in connection with the negotiation, preparation and execution of this Agreement and any document relating to it.

14.7 Severance

If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision must be read down as narrowly as necessary to allow it to be valid or enforceable.

If it is not possible to read down a provision (in whole or in part), that provision (or that part of that provision) is severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.

14.8 Entire Agreement

This Agreement (including any Order Form) contains the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.

14.9 No Merger

The warranties, other representations and agreements made by the Parties in this Agreement are continuing and will not merge or be extinguished by payment of any monies payable under this Agreement.

14.10 Amendment

This Agreement may only be amended by written document executed by all Parties.

14.11 Counterparts and Electronic Execution

This Agreement may be executed in any number of counterparts, each of which will be deemed an original and all of which together constitute one and the same instrument. This Agreement may be executed and delivered electronically (including by electronic signature, scanned copy, or through a recognised electronic signature platform), and such execution and delivery will be deemed valid and binding for all purposes.

14.12 Operation of Indemnities

Without limiting any other provision of this Agreement, the Parties agree that each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the Parties, and survives termination, completion or expiration of this Agreement.

14.13 Time is of the Essence

The Parties agree that in performing their obligations under this Agreement time is of the essence.

14.14 Governing Law and Jurisdiction

This Agreement is governed by the laws of Victoria, Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria, Australia and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.