KRITICAL – MASTER SERVICES AGREEMENT – OCTOBER 2025

All Quotations, Licensing, Services and other commerce with Kritical is governed by the Kritical Pty Ltd Master Services Agreement (MSA) and the corresponding Statement of Work (SOW). These documents outline the comprehensive legal terms, conditions, liabilities, and responsibilities governing the entire partnership between Kritical Pty Ltd and The Customer including this initial license transaction and any future services.

Kritical delivers electronic licensing and other goods, the payment and/or usage of these Services in any way, is considered as full acceptance of these terms in place of a signature.

This Master Services Agreement is made between:
Kritical Pty Ltd (ACN 687 048 086) of Level 4, 60 Moorabool Street, Geelong, Victoria, 3220, Australia (Supplier); and
The Customer

BACKGROUND
The Supplier is in the business of providing the Available Services.
The Customer wishes to obtain and the Supplier wishes to provide the Available Services on the terms set out in this Agreement.

OPERATIVE TERMS
1. Interpretation
1.1. Definitions:
Affiliate: means in respect of a person that is not a natural person, any person that directly or indirectly through one or more intermediaries controls, is controlled by, or is under common control with such person. As used in this definition, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through ownership of voting securities, by contract or otherwise, and, in respect of any person who is a natural person:
such person’s relatives;
any trustee of a trust whereby such person or any of such person’s immediate family members are beneficiaries or whereby any benefit may be conferred on any such individuals; and
any body corporate in which such person or any of such person’s immediate family members holds an interest representing, in the aggregate, at least 20 per cent of the total voting securities.

Agreement: means this Master Services Agreement.
Applicable Data Protection Laws: means the data protection laws, statutes, regulations and codes from time to time in the Territory or of a State of the Territory which relates to the protection of personal data.
Applicable Laws: all applicable laws, statutes, regulation and codes from time to time in force in the Territory or of a State in the Territory.
Available Services: the services as set out in Schedule 1.
Business Day: a day, other than a Saturday, Sunday or public holiday in the Territory or a State of the Territory, when banks in the Territory or State of the Territory are open for business.
Business Hours: the period from 9.00 am to 5.30 pm on any Business Day.
Change Control Procedure: has the meaning given in clause 7.
Change Order: has the meaning given in clause 7.1.
Commencement Date: date of signing of this Agreement.
Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.
Customer’s Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Customer, its agents, subcontractors or consultants which is used directly or indirectly in the supply of the Works including any such items specified in the Statement of Work but excluding any such items which are the subject of a separate agreement between the parties under which title passes to the Supplier.
Customer Materials: all documents, information, items and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to the Supplier in connection with the Works, including the items provided pursuant to clause 5.1.4.
Customer’s Personal Data: any personal data which the Supplier processes in connection with this Agreement, in the capacity of a processor on behalf of the Customer.
Deliverables: any output of the Works to be provided by the Supplier to the Customer as specified in the Statement of Work and any other documents, products and materials provided by the Supplier to the Customer in relation to the Works including any such items specified in the Statement of Work excluding the Supplier ‘s Equipment.
Force Majeure: means and includes such events, beyond the reasonable control of a party, that hinder, prevent or delay performance, in whole or in part, of any obligation under this Agreement including without limitation, pandemic, epidemic, lockdown, restrictions on movement, fire, flood, casualty, earthquake, war, lockout, strike, epidemic, riot, destruction of facilities, insurrection, material unavailability, telecommunications or internet failures, regulations or restrictions imposed by law, acts of the government or governmental requirements.
GST: goods and services tax, or any equivalent tax, chargeable in the Territory.
Intellectual Property Rights: means all intellectual property rights including patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
International Standards: standards, guidelines and requirements established by international sports organisations.
Milestone: a date by which a part or all of the Works is to be completed, as set out in the Statement of Work.
Reference Charges: the standard charges for the Available Services or the framework for calculating them as set out in Schedule 3.
SoW Charges: the sums payable for the Works as set out in the Statement of Work.
Statement of Work: a detailed plan, agreed in accordance with clause 3, describing the Works to be provided by the Supplier, Milestones, SoW Charges and the related matters as set out in Schedule 2, or in a manner agreed between the parties from time to time.
Supplier’s Equipment: any equipment including tools and such other necessary equipment, provided by the Supplier to the Customer and used directly or indirectly in the supply of the Works, including any such items specified in the Statement of Work but excluding any such items which are the subject of a separate agreement between the parties under which title passes to the Customer.
Supplier IPR: all Intellectual Property Rights of the Supplier that were subsisting prior to the entry into of this Agreement.
Supplier’s Personal Data: any personal data that the Supplier processes in connection with this Agreement, in the capacity of a controller.
Territory: Victoria, Australia.
Timetable: the schedule for reaching the Milestones for completion of the Work, as set out in the Statement of Work.
Works: the Available Services which are provided by the Supplier under the Statement of Work, including services which are incidental or ancillary to the Works.

1.2. Interpretation
1.2.1. Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.2.2. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.3. The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.
1.2.4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.2.5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.2.6. Unless the context otherwise requires, a reference to one gender shall include a reference to the other gender.
1.2.7. This Agreement shall be binding on, and endure to the benefit of, the parties to this Agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
1.2.8. A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time.
1.2.9. A reference to legislation or a legislative provision shall include all subordinate legislation made from time to time under that legislation or legislative provision.
1.2.10. A reference to writing or written includes fax and email.
1.2.11. Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.2.12. A reference to this Agreement or to any other agreement or document is a reference to this agreement or such other agreement or document, in each case as varied or novated from time to time.
1.2.13. References to clauses and Schedules are to the clauses and Schedules of this Agreement and references to paragraphs are to paragraphs of the relevant Schedule.
1.2.14. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.15 The payment and/or usage of any goods, services, and/or engaging in commerce of any other kind with Kritical Pty Ltd in any way, is considered as full acceptance of these terms in place of a signature.

2. Commencement and duration
2.1. This Agreement shall commence on the date of execution of this document and shall continue until terminated in accordance with clause 16 (Termination).
2.2. If there are no uncompleted Statements of Work as at the date notice to terminate is served under clause 16, such notice shall terminate this Agreement with immediate effect.
2.3. The parties shall not enter into any further Statements of Work after the date on which notice to terminate is served under clause 16.
2.4. The Customer may procure any of the Available Services by agreeing on a Statement of Work with the Supplier pursuant to clause 3 (Statements of Work).
2.5. The Supplier shall provide the Works from the date specified in the relevant Statement of Work.

3. Statements of Work
3.1. Each Statement of Work shall be agreed in the following manner:
3.1.1. prior to entering into this Agreement, the Customer shall ask the Supplier to provide any or all of the Available Services and provide the Supplier with as much information as the Supplier reasonably requests and all such other information that the Customer thinks is necessary in order to prepare a draft Statement of Work for the Available Services requested;
3.1.2. following receipt of the information requested from the Customer the Supplier shall, as soon as reasonably practicable either:
3.1.2.1. inform the Customer that it declines to provide the requested Available Services; or
3.1.2.2. provide the Customer with a draft Statement of Work.
3.1.3. if the Supplier provides the Customer with a draft Statement of Work pursuant to clause 3.1.2.2, the Supplier and the Customer shall within 5 Business Days of the draft Statement of Work being provided to the Customer, discuss and agree on the draft Statement of Work; and
3.1.4. both parties shall sign the draft Statement of Work when the parties have agreed on the same.
3.2. Unless otherwise agreed, the SoW Charges shall be calculated in accordance with the Reference Charges.
3.3. Once a Statement of Work has been agreed and signed in accordance with clause 3.1.4, no amendment shall be made to it except in accordance with clause 7 (Change Control Procedure) or clause 20.3 (Variation).
3.4. Each Statement of Work shall be part of this Agreement and shall not form a separate contract to it.

4. Obligations of the Supplier
The Supplier shall:
4.1. use reasonable endeavours to complete the Works, and deliver the Deliverables to the Customer, in accordance with the Statement of Work in all material respects.
4.2. use reasonable endeavours to meet the Milestones specified in the Statement of Work but any such dates shall be estimates only and time for performance by the Supplier shall not be of the essence of this Agreement.
4.3. appoint a manager in respect of the Works to be performed under each Statement of Work, such person as identified in the Statement of Work. That person shall have authority to contractually bind the Supplier on all matters relating to the relevant Works including Change Orders. The Supplier shall use all reasonable endeavours to ensure that the same person acts as the Supplier’s manager throughout the term of the relevant Statement of Work, however, the Supplier may replace that person from time to time where reasonably necessary in the interests of the Supplier’s business.
4.4. use reasonable endeavours to observe all health and safety and security requirements that apply at the Customer’s premises and that have been communicated to it under clause 5.1.5, provided that it shall not be liable under this Agreement if, as a result of such observation, it is in breach of any of its obligations under this Agreement.

5. Customer’s obligations
5.1. The Customer shall:
5.1.1. promptly co-operate with the Supplier in all matters relating to the Works.
5.1.2. appoint a manager in respect of the Works to be performed under each Statement of Work, such person as identified in the Statement of Work. That person shall have authority to contractually bind the Customer on all matters relating to the relevant Works including by signing Change Orders.
5.1.3. provide, for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer’s premises, office accommodation, data and other facilities as reasonably required by the Supplier including any such access as is specified in a Statement of Work.
5.1.4. provide to the Supplier in a timely manner all documents, information, items, materials and access in any form whether owned by the Customer or a third party required under a Statement of Work or otherwise reasonably required by the Supplier in connection with the Works and ensure that they are accurate and complete in all material respects.
5.1.5. inform the Supplier of all health and safety and security requirements that apply at the Customer’s premises. If the Customer wishes to make a change to those requirements which will materially affect provision of the Works, it can only do so via the Change Control Procedure as set out in clause 7.
5.1.6. ensure that all the Customer’s Equipment is in good working order and suitable for the purposes for which it is used in relation to the Works and conforms to all the guidelines and regulations to ensure the safety, quality, and consistency in accordance with the International Standards.
5.1.7. obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable the Supplier to provide the Works, including in relation to the installation of the Supplier’s Equipment, the use of all Customer Materials and the use of the Customer’s Equipment insofar as such licences, consents and legislation relate to the Customer’s business, premises, staff and equipment, in all cases before the date on which the Works are to start.
5.1.8. keep, maintain and insure the Supplier’s Equipment in good condition and not dispose of or use the Supplier ‘s Equipment other than in accordance with the Supplier ‘s written instructions or authorisation.
5.1.9. comply with any additional responsibilities of the Customer as set out in the relevant Statement of Work.
5.2. If the Supplier’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees then, without prejudice to any other right or remedy it may have, the Supplier shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer.

6. Non-solicitation and employment
6.1. The Customer shall not, without the prior written consent of the Supplier, at any time from the date on which any Works commence to the expiry of 12 months after the completion of such Works, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of such Works.
6.2. The written consent of the Supplier may be given subject to certain financial conditions additional to the Customer’s obligations in this Agreement.

7. Change Control Procedure
7.1. Either party may propose changes to the scope or execution of the Works but no proposed changes shall come into effect until a relevant Change Order has been signed by both parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:
7.1.1. the Works;
7.1.2. the SoW Charges;
7.1.3. the Timetable and Milestones for the Works; and
7.1.4. any of the other terms of the relevant Statement of Work.
7.2. If the Supplier wishes to make a change to the Works it shall provide a draft Change Order to the Customer and within 5 Business Days the Supplier and the Customer shall discuss and agree on the draft Change Order.
7.3. If the Customer wishes to make a change to the Works:
7.3.1. it shall notify the Supplier and provide as much details as the Supplier reasonably requires of the proposed changes, including the timing of the proposed change and any changes to Statement of Work, Milestones, Timetable, delivery dates or deadlines;
7.3.2. the Supplier shall, as soon as reasonably practicable after receiving the information at clause 7.3.1, provide a draft Change Order to the Customer; and
7.3.3. if the Supplier provides the Customer with a draft Change Order pursuant to clause 7.3.2, the Supplier and the Customer shall within 5 Business Days discuss and agree on the draft Statement of Work.
7.4. If the parties:
7.4.1. agree to a Change Order, they shall sign it and that Change Order shall amend the relevant Statement of Work; or
7.4.2. are unable to agree a Change Order, the original Statement of Work shall continue to apply until such time an agreement is reached between the parties in relation to the Change Order.
7.5. Each Change Order shall be part of this Agreement and shall not form a separate contract to it.
7.6. Prior to signing any Change Order, the parties shall complete a formal Change Impact Assessment that includes:
7.6.1. a detailed technical and operational feasibility analysis;
7.6.2. a comprehensive cost-benefit analysis including resource implications;
7.6.3. risk assessment and mitigation strategies; and
7.6.4. written approval from authorized representatives of both parties’ senior management.

8. Charges and payment
8.1. In consideration of the provision of the Works by the Supplier, the Customer shall pay the SoW Charges.
8.2. Where the SoW Charges are calculated on a time and materials basis:
8.2.1. the Supplier’s daily fee rates for each individual person as set out in Schedule 3 are calculated on the basis of an eight-hour day, worked during Business Hours;
8.2.2. the Supplier shall be entitled to charge an overtime rate of 200% of the daily fee rate set out in Schedule 3 on a pro rata basis for any time worked by the Supplier or any other individuals whom it engages on the Works outside Business Hours.
8.3. Where the SoW Charges are calculated on a fixed price basis, the amount of those charges shall be as set out in the Statement of Work.
8.4. The SoW Charges exclude the following, which shall be payable by the Customer monthly in arrears, following submission of an appropriate invoice:
8.4.1. hotel, meal, and travelling expenses reasonably incurred by the Supplier and the individuals whom the Supplier engages in connection with the Works (including the cost of obtaining visas and meeting entry requirements); and
8.4.2. the cost to the Supplier of any materials or services procured by the Supplier from third parties for the provision of the Works as such items and their cost are set out in the Statement of Work.
8.5. The Supplier may increase the Reference Charges and any SoW Charges not calculated in accordance with the Reference Charges on an annual basis with effect from each anniversary of the date of execution of this document in line with the percentage increase using an appropriate economic indicator in the relevant Territory of the Customer.
8.6. Any increase in the Reference Charges shall affect:
8.6.1. the SoW Charges to the extent that they are calculated in accordance with the Reference Charges in Statements of Work in force at the date the increase takes effect; and
8.6.2. the calculation of the SoW Charges for Statements of Work entered into after the date the increase takes effect.
8.7. The Supplier shall invoice the Customer for the SoW Charges at the intervals specified, or on the achievement of the Milestones indicated, in the Statement of Work. If no intervals are so specified, the Supplier shall invoice the Customer at the end of each month for Works performed during that month.
8.8. All fees for software licenses are payable in advance of the service period (Cash on Delivery). The Supplier will issue an invoice which is due upon receipt. Licenses will not be provisioned or renewed until payment for the invoice has been received in full. For all other services, the Customer shall pay each invoice submitted to it by the Supplier within 7 Business Days of receipt to a bank account nominated in writing by the Supplier from time to time.
8.9. Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier any sum due under this Agreement on the due date:
8.9.1. the Customer shall pay an interest of 2% per annum on the overdue sum calculated per day from the due date until payment of the overdue sum; and
8.9.2. until such time the payment has been made in full the Supplier may suspend part or all of the Works, including the suspension of software licenses.
8.10. All sums payable to the Supplier under this Agreement:
8.10.1. are exclusive of GST chargeable in the Territory, and the Customer shall in addition pay an amount equal to any GST chargeable on those sums on delivery of a GST invoice; and
8.10.2. shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

9. Warranties and Indemnities
9.1. The parties represent and warrant to each other that:
9.1.1. They are duly formed, validly existing and in good standing under the laws of its respective jurisdictions.
9.1.2. They have the power and authority to enter into this Agreement and to perform its obligations under this Agreement. They have taken all necessary corporate action to authorise its entry into and performance of its respective obligations under this Agreement and to carry out and perform the obligations contemplated thereby.
9.1.3. The execution, delivery and performance by both parties of this Agreement has been duly authorised by all requisite regulatory action and the performance by both parties of their obligations under this Agreement will not result in:
9.1.3.1. a material breach of any provision of any agreement that they are a party to or is bound by; or
9.1.3.2. a breach of any order, judgment or decree of any court or governmental agency to which they are a party or are bound.
9.2. No court of competent jurisdiction or governmental authority has issued a ruling, letter, order, decree or injunction enjoining, restraining or prohibiting any material aspect of the transactions contemplated by this Agreement.
9.3. The warranties set out in this clause 9 constitute fundamental representations upon the faith of which this Agreement has been entered into by the parties hereto.
9.4. Subject to and upon the terms and conditions of this Agreement, either party (Indemnifying Party) shall indemnify and hold harmless the other party (Indemnified Party) in respect of any and all costs, claims, losses, damages and expenses which may be incurred or suffered by the Indemnified Party as a result of or arising out of conduct of the parties.

10. Intellectual Property Rights (IPR)
10.1. The Supplier shall retain ownership of all Supplier IPRs.
10.2. In relation to the Deliverables:
10.2.1. the Customer and its licensors shall retain ownership of all IPRs in the Deliverables, excluding the Supplier IPRs;
10.2.2. the Supplier grants the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free, perpetual and irrevocable licence to copy and modify the Supplier IPRs for the purpose of receiving and using the Works and the Deliverables in the Customer’s business during the term of the Agreement and the Customer shall not sub-license, assign or otherwise transfer the rights hereby granted:
10.2.2.1. to its Affiliates and customers; and
10.2.2.2. to third parties for the purpose of the Customer’s receipt of services similar to the Works, unless the prior written consent of the Supplier has been obtained; and
10.2.3. the Supplier must use the IPRs of the Deliverables only to provide the Works and other Deliverables set out in the Statement of Work in accordance with this Agreement, and for no other purpose; and
10.3. The Licences granted under this clause 10 will cease upon the earlier of:
10.3.1. its revocation by the Supplier; or
10.3.2. the termination of this Agreement.
10.4. In relation to the Customer Materials, the Customer:
10.4.1. and its licensors shall retain ownership of all IPRs in the Customer Materials; and
10.4.2. grants to the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of this agreement for the purpose of providing the Works to the Customer.
10.5. The Supplier:
10.5.1. warrants that the receipt, use and onward supply of the Works and the Deliverables by the Customer shall not infringe the rights, including any Intellectual Property Rights, of any rights of third parties to the extent that the infringement results from copying;
10.5.2. shall, subject to clause 14.6, indemnify the Customer against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all other reasonable professional costs and expenses) suffered or incurred or paid by the Customer arising out of or in connection with any claim brought against the Customer for actual or alleged infringement of a third parties Intellectual Property Rights, to the extent that the infringement or alleged infringement results from copying, arising out of, or in connection with, the receipt, use or onward supply of the Works and Deliverables;
10.5.3. shall not be in breach of the warranty at clause 10.5.1, and the Customer shall have no claim under the indemnity at clause 10.5.2 to the extent the infringement arises from:
10.5.3.1. the use of Customer Materials in the development of, or the inclusion of the Customer Materials in, the Works or any Deliverable;
10.5.3.2. any modification of the Works or any Deliverable, other than by or on behalf of the Supplier; and
10.5.3.3. compliance with the Customer’s specifications or instructions, where infringement could not have been avoided while complying with such specifications or instructions and provided that the Supplier shall notify the Customer if it knows or suspects that compliance with such specification or instruction may result in infringement.
10.6. The Customer:
10.6.1. warrants that the receipt and use in the performance of this Agreement by the Supplier, its agents, subcontractors or consultants of the Customer Materials shall not infringe any rights of third parties to the extent that infringement results from copying; and
10.6.2. shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses suffered or incurred or paid by the Supplier arising out of or in connection with any claim brought against the Supplier, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s Intellectual Property Rights, to the extent that the infringement or alleged infringement results from copying, arising out of, or in connection with, the receipt or use in the performance of this Agreement of the Customer Materials.
10.7. If either party (Indemnifying Party) is required to indemnify the other party (Indemnified Party) under this clause 10, the Indemnified Party shall:
10.7.1. notify the Indemnifying Party in writing of any claim against it in respect of which it wishes to rely on the indemnity at clause 10.5.2 or clause 10.6.2 (as applicable) (IPRs Claim);
10.7.2. allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party’s prior approval of any settlement terms, such approval not to be unreasonably withheld;
10.7.3. provide the Indemnifying Party with such reasonable assistance regarding the IPRs Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party’s costs so incurred; and
10.7.4. not, without prior consultation with the Indemnifying Party, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.
10.7.5. in cases involving AI-generated content or derivative digital works, provide the Indemnifying Party with detailed documentation of the content creation process, including any AI tools or systems used, training data sources, and modification history, to enable proper assessment and defense of the IPRs Claim, subject to appropriate confidentiality protections.

11. Compliance with laws and policies
11.1. In performing its obligations under this Agreement, the Supplier shall comply with the Applicable Laws.
11.2. Changes to the Works required as a result of changes to the Applicable Laws shall be agreed in accordance with clause 7 (Change Control Procedure).

12. Data protection
12.1. For the purposes of this clause 12, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the Applicable Data Protection Laws.
12.2. Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This clause 12 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Applicable Data Protection Laws.
12.3. The parties have determined that, for the purposes of Applicable Data Protection Laws:
12.3.1. the Supplier shall process the personal data as set out in paragraph 1.1 of Schedule 4 as processor on behalf of the Customer; and
12.3.2. the Supplier shall act as controller of the personal data set out in paragraph 1.2 of Schedule 4.
12.4. Should the determination in clause 12.3 change, the parties shall use all reasonable endeavours to make any changes that are necessary to this clause 12 and Schedule 4.
12.5. Without prejudice to the generality of clause 12.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Supplier Personal Data and Customer’s Personal Data to the Supplier and lawful collection of the same by the Supplier for the duration and purposes of this Agreement.
12.6. In relation to the Customer’s Personal Data, Schedule 4 sets out the scope, nature and purpose of a processing by the Supplier, the duration of the processing and the types of personal data and categories of data subject.
12.7. Without prejudice to the generality of clause 12.2, the Supplier shall, in relation to Customer’s Personal Data:
12.7.1. process that Customer’s Personal Data only on the documented instructions of the Customer, which shall be to process the Customer’s Personal Data for the purposes set out in Schedule 4 (Processing, personal data and data subjects) unless the Supplier is required by Applicable Laws to otherwise process that Customer’s Personal Data (Purpose). Where the Supplier is relying on Applicable Laws as the basis for processing Customer’s Processor Data, the Supplier shall notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the provider from so notifying the Customer on important grounds such as public interest. The Supplier shall inform the Customer if, in the opinion of the Supplier, the instructions of the Customer infringe Applicable Data Protection Laws;
12.7.2. implement the technical and organisational measures set out in Schedule 4 to protect against unauthorised or unlawful processing of Customer’s Personal Data and against accidental loss or destruction of, or damage to, Customer’s Personal Data, which the Customer has reviewed and confirms are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
12.7.3. ensure that any personnel engaged and authorised by the Supplier to process Customer’s Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
12.7.4. assist the Customer insofar as this is possible taking into account the nature of the processing and the information available to the Supplier, and at the Customer’s cost and written request, in responding to any request from a data subject and in ensuring the Customer’s compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
12.7.5. notify the Customer without undue delay on becoming aware of a personal data breach involving the Customer’s Personal Data;
12.7.6. at the written direction of the Customer, delete or return Customer’s Personal Data and copies thereof to the Customer on termination of the agreement unless the Supplier is required by Applicable Law to continue to process that Customer’s Personal Data. For the purposes of this clause 12.7.6 Customer’s Personal Data shall be considered deleted where it is put beyond further use by the Supplier; and
12.7.7. maintain records to demonstrate its compliance with this clause 12.
12.8. The Customer provides its prior, general authorisation for the Supplier to:
12.8.1. appoint processors to process the Customer’s Personal Data, provided that the Supplier:
12.8.1.1. shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on the Supplier in this clause 12;
12.8.1.2. shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of the Supplier; and
12.8.1.3. shall inform the Customer of any intended changes concerning the addition or replacement of the processors, thereby giving the Customer the opportunity to object to such changes provided that if the Customer objects to the changes and cannot demonstrate, to the Supplier’s reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Customer shall indemnify the Supplier for any losses, damages, costs including legal fees and expenses suffered by the Supplier in accommodating the objection; and
12.8.2. transfer Customer’s Personal Data outside the Territory as required for the purpose, provided that the Supplier shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Customer shall promptly comply with any reasonable request of the Supplier, including any request to enter into standard data protection clauses adopted by the relevant authorities of the Territory.
12.9. The Supplier ‘s liability for losses arising from breaches of this clause 12 is as set out in clause 14.
12.10. Without prejudice to clause 12.7.5, the Supplier shall in relation to any personal data breach:
12.10.1. provide a detailed written notification to the Customer within 24 hours of becoming aware of the breach;
12.10.2. include in such notification the nature of the breach, categories and approximate number of data subjects affected, likely consequences, and measures taken to address and mitigate the breach;
12.10.3. maintain a comprehensive breach register and provide the Customer with copies upon reasonable request; and
12.10.4. cooperate fully with any investigation by the Customer or relevant supervisory authority regarding the breach.

13. Confidentiality
13.1. Each party undertakes that it shall not at any time during this Agreement, and for a period of two years after termination or expiry of this Agreement , disclose to any person any confidential information concerning the business, affairs, customers, clients or consultants of the other party, except as permitted by clause 13.2.
13.2. Each party may disclose the other party’s confidential information:
13.2.1. with the express prior written consent of the other party;
13.2.2. to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 13;
13.2.3. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority;
13.2.4. was developed independently by the party, without the use of any of the Confidential Information of the other party; and
13.2.5. if the information is in the public domain.
13.3. No party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.
13.4. Each party must take all precautions that are reasonably necessary to prevent any unauthorised disclosure of the Confidential Information of the other party to third parties, or unauthorised use of such Confidential Information and will inform the other party of any suspected or actual unauthorised disclosure or use of such Confidential Information.

14. Limitation of liability
14.1. References to liability in this clause 14 include every kind of liability arising under or in connection with this Agreement including but not limited to liability in contract, tort including negligence, misrepresentation, restitution or otherwise.
14.2. Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
14.3. Nothing in this clause 14 shall limit the Customer’s payment obligations under this Agreement.
14.4. Nothing in this Agreement shall limit the Customer’s liability under clause 10.6.
14.5. Nothing in this Agreement limits any liability which cannot legally be limited, including but not limited to liability for:
14.5.1. death or personal injury caused by negligence; and
14.5.2. fraud or fraudulent misrepresentation.
14.6. Subject to clause 14.2 and clause 14.5, the Supplier’s total liability to the Customer for all loss or damage shall not exceed the total SoW charges paid by the Customer in the 3 months preceding the event giving rise to the claim.
14.7. The maximum liability amount on the Customer’s liabilities shall not be reduced by:
14.7.1. amounts awarded or agreed to be paid under clause 10.6; and
14.7.2. amounts awarded by a court or arbitrator, using their procedural or statutory powers in respect of costs of proceedings or interest for late payment.
14.8. Subject to clause 14.2, clause 14.3, clause 14.4 and clause 14.5, this clause 14.8 specifies the types of losses that are excluded:
14.8.1. loss of profits;
14.8.2. loss of sales or business;
14.8.3. loss of agreements or contracts;
14.8.4. loss of anticipated savings;
14.8.5. loss of use or corruption of software, data or information;
14.8.6. loss of or damage to goodwill; and
14.8.7. indirect or consequential loss.
14.9. Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 90 days from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
14.10. The Customer’s notice of claim must specify the estimated value of the claim and be accompanied by supporting documentation evidencing the basis of calculation. Failure to provide such details within 5 Business Days of the initial notice shall not invalidate the notice but may delay the Supplier’s investigation and response to the claim.

15. Termination
15.1. Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
15.1.1. the other party commits a material breach of any term of this Agreement and if such breach is remediable fails to remedy that breach within a period of 15 Business Days after being notified in writing to do so;
15.1.2. the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
15.1.3. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed to be insolvent according to the Applicable Laws of the Territory;
15.1.4. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
15.1.5. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
15.1.6. an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party;
15.1.7. a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
15.1.8. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
15.1.9. the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy.
15.2. For the purposes of clause 15.1.1 material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from:
15.2.1. a substantial portion of this Agreement; or
15.2.2. any of the obligations set out in clauses 4, 5, 8, 9, 10, 11, 12, and 13,
over the term of this Agreement. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
15.3. For the avoidance of doubt, a material breach shall be deemed to have occurred if: (i) the breach results in or is likely to result in financial loss exceeding AUD $100 to the non-breaching party; (ii) the breach remains unremedied for a period of 15 Business Days after written notice has been provided; or (iii) there have been 3 or more repeated breaches of the same obligation within any 90 day period.
15.4. Without affecting any other right or remedy available to it, the Supplier may terminate this Agreement with immediate effect by giving written notice to the Customer if:
15.4.1. the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 15 Business Days after being notified in writing to make such payment; or
15.4.2. there is a change of Control of the Customer.
15.5. A Statement of Work with a fixed term (e.g., a 12-month commitment) cannot be terminated for convenience. Should the Customer seek to terminate a fixed-term SOW before its expiry, the Customer will be liable to pay out the total remaining fees for the duration of the commitment period.
15.6. Notwithstanding anything else in this Agreement, either party may terminate this Agreement without cause upon 3 months written notice, provided there are no active fixed-term Statements of Work. In such an event, the Customer will only be responsible to pay the Supplier any unpaid SoW Charges in accordance with clause 8 for the Works delivered to the Customer.

16. Obligations on termination and survival
16.1. Obligations on termination or expiry
On termination or expiry of this Agreement:
16.1.1. the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of the Works supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
16.1.2. the Customer shall, within a reasonable time, return all of the Supplier’s Equipment. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of the Supplier’s Equipment. Until the Supplier’s Equipment has been returned or repossessed, the Customer shall be solely responsible for its safe keeping;
16.1.3. the Supplier shall on request return any of the Customer Materials not used up in the provision of the Works; and
16.1.4. each party shall return to the other party all confidential information of the other party and erase all of the other party’s confidential information from its computer systems (to the extent possible) and shall certify that it does not retain the other party’s confidential information.
16.2. Survival
16.2.1. Upon the termination or expiration of this Agreement, all of the provisions of this Agreement will cease to have effect, save that the following provisions of this Agreement will survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): clauses 1, 6, 9, 10, 12, 13, 14, 16, 16, 18, 19, 20. All indemnities specified in this Agreement will survive the expiration or termination of this Agreement.
16.2.2. On termination or expiry of this Agreement, all existing Statements of Work shall terminate automatically, subject to any early termination fees outlined in clause 16.
16.2.3. Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
16.2.4. Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.

17. Force majeure
17.1. If a party (Affected Party) becomes unable, wholly or in part, by Force Majeure to carry out an obligation placed on it under this Agreement (other than an obligation to pay SoW Charges):
17.1.1. the Affected Party must give the other party prompt notice of reasonable particulars of the Force Majeure; and so far, as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation;
17.1.2. the relevant obligation, so far as it is affected by the Force Majeure, will be suspended for the duration of the Force Majeure; and
17.1.3. the Affected Party must use all possible diligence to overcome or remove the Force Majeure as quickly as possible.

18. Multi-tiered dispute resolution procedure
18.1. Dispute Resolution and Mediation
18.1.1. If a dispute arises out of or relates to the terms of this Agreement, either party may not commence any legal proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
18.1.2. A party to this Agreement claiming a dispute (Dispute) has arisen under the terms of this Agreement, must give written notice to the other party detailing the nature of the Dispute, the desired outcome and the action required to settle the Dispute (Notice).
18.1.3. On receipt of the Notice by the other party, the parties to this Agreement (Parties) must within 10 Business Days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree.
18.1.4. If for any reason whatsoever, 20 Business Days after the date of the Notice, the Dispute has not been resolved the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Law Institute of Victoria and attend a mediation.
18.1.5. It is agreed that mediation will be held in Melbourne, Victoria.
18.1.6. The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing, undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation.
18.1.7. All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the fullest extent possible, must be treated as “without prejudice” negotiations.
18.1.8. If 30 Business Days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either party may ask the mediator to terminate the mediation and the mediator must do so.

19. General
19.1. Entire Agreement
This Agreement constitutes the entire agreement between Parties, and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings, or other agreements, whether oral or written, relating to the subject matter of this Agreement.
19.2. Assignment and other dealings
19.2.1. The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement.
19.2.2. The Supplier may at any time assign, mortgage, charge, delegate, declare a trust over or deal in any other manner with any or all of its rights under this Agreement, provided that the Supplier gives prior written notice of such dealing to the Customer.
19.3. Variation
Subject to clause 7 (Change Control Procedure), no variation of this Agreement shall be effective unless it is in writing and signed by the parties or their authorised representatives.
19.4. Waiver
19.4.1. A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
19.4.2. A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
19.4.3. A party that waives a right or remedy provided under this Agreement or by law in relation to one party, or takes or fails to take any action against that party, does not affect its rights in relation to any other party.
19.4.4. Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.
19.5. Rights and remedies
The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
19.6. Severance
19.6.1. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
19.6.2. If any provision or part-provision of this Agreement is deemed deleted under clause 19.6.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
19.7. Conflict
If there is an inconsistency between any of the provisions of this Agreement and the provisions of the Schedules, the provisions of this Agreement shall prevail.
19.8. No partnership or agency
Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
19.9. Further assurance
At its own expense, each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Agreement.
19.10. Notices
Notices are taken to be read on the day they are received, unless they are received after 5 PM or not on a Business Day, in which case they are deemed to be received on the next Business Day. Any notice to the parties will be to the addresses set out under the details of the parties on the first page of this Agreement.
19.11. Costs
Except as expressly provided in this Agreement, each Party shall pay its own costs and expenses incurred in connection with the negotiation, preparation, execution and performance of this Agreement and any documents referred to in it.
19.12. Counterparts
This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement.
19.13. Governing law
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of Victoria, Australia.