AutoPlay's Australian terms are made up of two documents: the General Terms and Conditions below, together with the Service Terms and Conditions that follow it.

General Terms and Conditions

Last revision: August 2022

1. Parties and Agreement

1. This agreement is between you, the entity benefiting from the use of the Services and Deliverables and named in the Proposal (you, your or Customer) and AutoPlay Automotive (Aus) (634 162 002) Pty Ltd, its successors and assignees (we, us, our or AutoPlay), each a Party and collectively the Parties.
2. These terms and conditions form the agreement under which we agree to provide you with the Services and Deliverables outlined in the Proposal attached to our Standard Order Form (Agreement). Please read this Agreement carefully. If you have any questions, please contact us using the contact details in the Proposal, before accepting this Agreement.

2. Deliverables

1. We warrant and agree that we will use reasonable efforts to ensure all our obligations under this Agreement will be carried out:
   1. by suitably competent and trained Personnel; and
   2. in an efficient and professional manner.

3. Acceptance

1. You accept this Agreement by:
   1. signing and returning to us the signed copy of the Standard Order Form; or
   2. making part or full payment of the Fees; or
   3. accessing and using the Services and Deliverables; or
   4. making the Services and Deliverables available to your customers.
2. By accepting this Agreement, you warrant to us that:
   1. you have reviewed this Agreement, including our data and privacy policies, available on our website (autoplay.com.au), and you understand them and will use the Services and Deliverables in accordance with them;
   2. you have the authority to act on behalf of any person or entity for whom you are using the Services and Deliverables and you are deemed to have agreed to this Agreement on behalf of any entity for whom you use the Services and Deliverables; and
   3. you have all hardware, software and services which are necessary to access and use the Services and Deliverables, including any required operating systems.

4. Licence

1. Subject to the payment of any applicable Fees, we grant you a non-exclusive, non-transferable (except with our written permission), non-sublicensable (except as otherwise permitted under this Agreement), personal and revocable licence to access and use the Services and Deliverables in accordance with any user limits (Licence).

5. Support Deliverables

1. During the term of the Agreement, we will provide you with support services via email or telephone as set out in the Proposal, provided that where required, you assist us in investigating and ascertaining the cause of the fault and provide us with access to all necessary information relevant to the fault (including what you have done in relation to the fault).

6. Privacy

1. The Parties must ensure that they comply with any applicable privacy or anti-spam Laws in respect of all Personal Information collected, used, stored or otherwise dealt with under or in connection with this Agreement.

7. Intellectual Property Rights

1. As between the Parties:
   1. we own all Intellectual Property Rights in Our materials; and
   2. you own all Intellectual Property Rights in Your materials, and
   3. nothing in this Agreement constitutes a transfer or assignment of any Intellectual Property Rights in Our materials or Your materials.
2. As between the Parties, ownership of all Intellectual Property Rights in any new materials or Improvements will at all times vest, or remain vested, in us upon creation.
3. You grant us a non-exclusive, revocable, worldwide, sub-licensable right and licence, for the duration of the Agreement, to use Your materials, solely in accordance with this Agreement.
4. We grant you a non-exclusive, revocable, royalty-free, non-sublicensable and non-transferable right and licence for the duration of the Agreement, to use Our materials that we provide to you, and the new materials and Improvements, solely for the purposes for which they were developed and for your use and enjoyment of the Services and Deliverables, as contemplated by this Agreement.
5. You warrant that you have obtained all necessary rights, releases and permissions to provide Your Materials to us and to grant the rights granted to us in this Agreement and that Your Materials do not infringe any Laws.
6. You must not whether directly or indirectly, other than as expressly stated in this Agreement, or without our prior written consent:
   1. copy or use, in whole or in part, any of our Intellectual Property;
   2. reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of our Intellectual Property to any third party;
   3. reverse assemble, reverse engineer, reverse compile or enhance the Deliverables;
   4. attempt to discover the source code or object code or underlying structures, ideas, know how or algorithms in relation to the Deliverables, the data or documentation;
   5. breach any Intellectual Property Rights connected with the Deliverables, including altering or modifying any of our Intellectual Property;
   6. cause any of our Intellectual Property to be framed or embedded in another website; or create derivative works from any of our Intellectual Property;
   7. resell, assign, transfer, distribute or make available the Deliverables to third parties;
   8. “frame”, “mirror” or serve any of the Deliverables on any web server or other computer server over the Internet or any other network;
   9. alter, remove or tamper with any trademarks, any patent or copyright notices, any confidentiality legend or notice, any numbers or any other means of identification used on or in relation to the Deliverables; and
   10. using or exploiting our Intellectual Property for purposes other than as expressly stated in this Agreement (including, without limitation, using our Intellectual Property for commercial purposes or on-selling our Intellectual Property to third parties).

8. Customer Data

1. You grant us a limited licence to copy, transmit, store and back-up or otherwise access the Customer Data during the Agreement and for a reasonable period after the Agreement has ended or expired to:
   1. supply the Deliverables to you (including to enable you and your Personnel to benefit from the Deliverables and to perform back-ups);
   2. diagnose problems with the Deliverables;
   3. share location data with third parties;
   4. improve our Deliverables;
   5. develop new Deliverables;
   6. promote and/or market our services;
   7. perform analytics; and
   8. enhance and otherwise modify the Deliverables, as reasonably required to perform our obligations under this Agreement.
2. You must, at all times, ensure the integrity of the Customer Data and that your use of the Customer Data is compliant with all Laws.
3. Despite anything to the contrary in this Agreement or elsewhere, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Deliverables, in an aggregated and anonymised format (Analytics). You agree that we may make such Analytics publicly available, provided that it:
   1. does not contain identifying information; and
   2. is not compiled using a sample size small enough to make the underlying Customer Data identifiable.
4. We and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content used or provided in connection with the Analytics, including all Intellectual Property rights in the foregoing.

9. Fees and payment

1. You must pay us any Fees, any agreed Expenses or other amounts payable to us under this Agreement in accordance with the payment dates and payment methods set out in the Proposal (Payment Terms).
2. If any payment has not been made in accordance with the Payment Terms we may (in our absolute discretion):
   1. immediately cease or suspend the provision of the Deliverables, and recover as a debt due and immediately payable from you any additional costs of doing so;
   2. charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 5% per month, calculated daily and compounding monthly, on any such amounts unpaid after the due date; and
   3. engage debt collection services and/or commence legal proceedings in relation to any such amounts.
3. If you rectify such non-payment after the Deliverables have been suspended, then we will recommence the provision of the Deliverables as soon as reasonably practicable.
4. The Fees are non-refundable. To the maximum extent permitted by law, there will be no refunds or credits for any unused Deliverables (or part thereof).

10. GST

1. The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
2. If GST is payable on any supply made under this Agreement, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under this Agreement and must be paid in addition to the consideration expressed elsewhere in this Agreement, unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.
3. If an adjustment event arises in respect of any supply made under this Agreement, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued (if required), and any payments to give effect to the adjustment must be made.
4. If the recipient is required under this Agreement to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.

11. Variations

1. Subject to clause 11.2, you may request a variation or change to the Services or Deliverables, including the timing for the provision of the Services and Deliverables, by providing written notice (including by email) to us, with details of the variation or change, (Variation Request).
2. We will not be obliged to comply with a Variation Request unless we:
   1. accept the Variation Request, including any variation to the Fees to effect the Variation Request (Fee Variation), in writing; and
   2. the Fee has been adjusted to reflect the Fee Variation.
3. If we consider that any instruction or direction from you constitutes a variation, then we will not be obliged to comply with such instruction or direction unless a Variation Request has been issued in accordance with clause 11.1.
4. Where the Deliverables are varied or changed, or the costs of providing the Services or Deliverables increases (Variation Event), and the cause of that Variation Event relates to, or is connected with, an event or circumstance beyond our reasonable control, you agree to pay us our reasonable additional costs and Expenses that we may suffer or incur as result of the Variation Event, as a debt due and immediately payable.

12. Development Services

1. If, during the Agreement, you require any changes to the scope, functionality or nature of the Services or Deliverables or the elements of the Software used to provide the Deliverables or any bespoke customisations to the Deliverables, you must notify us of the changes you require.
2. Following notification, at our discretion, we may provide you with written notice in the form of a statement of work covering (i) the changes required to the Software, (ii) the development services required in respect of such changes (Development Services) and (iii) the fee for required for us to undertake such Development Services (Development Fee).
3. If you agree to the changes to the Services or Deliverables, the Development Services and the Development Fee then, subject to the Parties signing a statement of work and this Agreement, we will provide the Development Services to you in consideration for payment of the Development Fee.

13. Third Parties

1. You acknowledge and agree that:
   1. the provision of the Services and Deliverables may be contingent on, or impacted by, third parties, other users’ use of our services, suppliers, other subcontractors (Third-Party Inputs); and
   2. despite anything to the contrary, to the maximum extent permitted by law, we will not be responsible, and will have no Liability, for any default or breach of this Agreement or law, if such default or breach was caused or contributed to by any Third-Party Inputs.
2. You acknowledge that the Services and Deliverables include certain optional functionality that may interface or interoperate with third party software or services.
3. To the extent that you choose to use such functionality and they are not a part of the Services or Deliverables, you are responsible for the purchase of and compliance with the licensing obligations related to the applicable third-party software and services.
4. It is your responsibility to ensure these requirements are met in order for you to benefit from the specific functionality made available to you.

14. Liability

1. Despite anything to the contrary, to the maximum extent permitted by law:
   1. our maximum Liability arising from or in connection with this Agreement (including the Services and Deliverables or the subject matter of this Agreement) will be limited to, and must not exceed for any claim, the total amount of Fees you paid to us and retained by us in the three (3) month period directly preceding the date on which such Liability arose, in respect of the supply of the relevant Services or Deliverables to which the Liability relates;
   2. a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel); and
   3. we will not be liable to you for any Consequential Loss.
2. Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability (whether under statute, contract, negligence) caused or contributed to by, arising from or connected with:
   1. you or your Personnel’s acts or omissions;
   2. your customer’s acts or omissions;
   3. any use or application of the Deliverables by a person or entity other than you, or other than as reasonably contemplated by this Agreement;
   4. any works, services, products, materials or items which do not form part of the Services and Deliverables (as expressed in this Agreement), or which have not been provided by us;
   5. any Third-Party Inputs;
   6. the Deliverables being unavailable, or any delay in us providing the Deliverables to you, for whatever reason; and
   7. any External Circumstances Event.

15. Termination

1. Subject always to the terms described in the Proposal, to the extent permitted by law, either Party may terminate this Agreement, if the other Party:
   1. has breached a material term of this Agreement and has failed to remedy such breach within 10 Business Days of receiving notice to do so, subject to any other express right of termination;
   2. ceases operation without a successor; or
   3. is subject to an Insolvency Event.
2. We may terminate this Agreement by providing you with 5 Business Days’ notice, in our sole discretion, if you fail to pay any amounts owing to us within 10 Business Days of the due date.
3. On termination of this Agreement:
   1. you must cease promoting the integration services, cease using the Deliverables and we will cease to provide the Deliverables;
   2. we will provide any further disengagement services at our then current rates, and such further disengagement support services must be agreed in writing by the Parties.
   3. you agree that any payments made are not refundable and you are to pay for all Deliverables provided prior to termination, including Deliverables which have been provided and have not yet been invoiced to you, any other amounts to which we are committed, and all other amounts due and payable under this Agreement;
   4. both Parties must promptly return (where possible) or delete or destroy (where not possible to return), each other’s Confidential Information and Intellectual Property unless required by Law or regulatory requirements to retain such information;
   5. for the avoidance of doubt, any provisions of this Agreement that by its nature survive the termination of this Agreement will remain in force after the Agreement has ended or expired; and
   6. within 4 weeks after the termination, we will be entitled to permanently delete all Customer Data. You acknowledge and agree that if you require a copy of your Customer Data, you must make your own copies of such Customer Data.
4. The accrued rights, obligations and remedies of the Parties are not affected by the termination of this Agreement.

16. General Warranties

1. We warrant and agree that:
   1. we are properly constituted and have the right and authority to enter into this Agreement;
   2. we are not subject to an Insolvency Event; and
   3. we will provide the Deliverables in accordance with all applicable Laws.
2. You warrant and agree that:
   1. there are no legal restrictions preventing you from entering into this Agreement;
   2. you are not subject to an Insolvency Event;
   3. you have not relied on any representations or warranties made by us in relation to the integration services (including as to whether the integration services are or will be fit or suitable for your particular purposes), unless expressly stipulated in this Agreement;
   4. you will cooperate with us and provide us with all assistance, resources, data, people, information, facilities, access and documentation that is reasonably necessary to enable us to perform the Deliverables and as otherwise requested by us, from time to time, and in a timely manner;
   5. all information and documentation that you provide to us in connection with this Agreement is true, correct and complete and that we will rely on such information and documentation in order to provide the Service and Deliverables;
   6. you will inform us if you have reasonable concerns relating to our provision of the Services or Deliverables under this Agreement, with the aim that the Parties will use all reasonable efforts to resolve your concerns; and
   7. you are responsible for obtaining any consents, licences, authorities and permissions from other parties necessary for the Deliverables to be provided in accordance with this Agreement, at your cost, and for providing us with the necessary consents, licences, authorities and permissions, and in a timely manner.

17. Confidential Information

1. Subject to clause 17.2, a Receiving Party must keep confidential and not use, or permit any unauthorised use, of the Confidential Information of a Disclosing Party.
2. Clause 17.1 does not apply where:
   1. the information is in, or comes into, the public domain (other than by a breach of this clause 17 or any other duty of confidence owed by the Receiving Party);
   2. the Receiving Party has the prior written consent of the Disclosing Party;
   3. the disclosure is required by Laws;
   4. the disclosure is required in order for the Receiving Party to comply with its reporting requirements and practices or its obligations under this Agreement; or
   5. the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that the Receiving Party ensures the adviser complies with the terms of this clause 17.
3. Each Party acknowledges and agrees that monetary damages may not be an adequate remedy for a breach of this clause 17. 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 17.

18. General

1. External Circumstances Event: Neither Party will liable for any delay or failure to perform their obligations under this Agreement if such delay or failure is due to any External Circumstances Event.
2. Amendment: This Agreement may only be amended by a written instrument executed by both Parties.
3. Assignment: Neither Party may assign, 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 (such consent not to be unreasonably withheld). Any purported dealing in breach of this clause is of no force or effect.
4. Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
5. Entire Agreement: This Agreement 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.
6. Non-exclusive: The Deliverables will be provided to you on a non-exclusive basis.
7. Removal: We reserve the right at any time and from time to time to change or remove features of the integration services provided that, where there is any material negative alteration to the functionality of the integration services in accordance with this clause, we will provide you with 45 days’ notice and you may terminate this Agreement in accordance with 30 days’ written notice to us.
8. Counterparts: This Agreement may be executed in any number of counterparts that together will form one instrument.
9. Online Execution: This Agreement may be executed by means of such third-party online document execution service as we nominate subject to such execution being in accordance with the applicable terms and conditions of that document execution service.
10. Relationship of Parties: In performing the Deliverables, we will act as an independent contractor. This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
11. Publicity: With your prior written consent, we may use advertising or publicly announce that we have undertaken work for you, including in website testimonials and in our marketing material.
12. Subcontractors: We may engage subcontractors to perform the Deliverables on our behalf. Despite this, we will remain responsible for all of our obligations under this Agreement.
13. Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by courier or email and will, in the case of courier, be deemed to have been served on confirmation of delivery, or in the case of transmission by email, at the time of transmission.
14. Waiver: Any failure or delay by a Party in exercising a power or right (either wholly or partly) in relation to this Agreement does not operate as a waiver or prevent a Party from exercising that power or right or any other power or right. A waiver must be in writing.
15. Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions.
16. Governing law: This Agreement is governed by the laws of New South Wales, Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

19. Definitions

In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Proposal, and:

Agreement means these terms and conditions, all schedules (including the Proposal), appendices, annexures and attachments included, or referred to, in this Agreement.

Business Day means a day which is not a Saturday, Sunday or bank or public holiday in New South Wales.

Confidential Information includes information which:

1. is disclosed to the Receiving Party in connection with this Agreement at any time;
2. is prepared or produced under or in connection with this Agreement at any time;
3. relates to the Disclosing Party’s business, assets or affairs; or
4. relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement,

whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information. For the avoidance of doubt, our Confidential Information includes Our materials and the compensation and rates we obtain from Third Party Inputs. Your Confidential Information includes Your materials and the Customer Data.

Consequential Loss includes any indirect, incidental or consequential loss, loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any remote, abnormal or unforeseeable loss, loss of use and/or loss or corruption of data or any loss or damage relating to business interruption, or otherwise, suffered or incurred by a person, arising out of or in connection with this Agreement (whether involving a third party or a Party to this Agreement or otherwise).

Customer Data means Personal Information or data provided to us or inputted by you, or your Personnel into the Deliverables, or stored by the Deliverables, or generated by the Deliverables as a result of your use of the Deliverables.

Deliverables means the Software and/or the integration services, and any development or support, or services as further particularised in the Proposal and Appendix A, and any additional Deliverables agreed between the Parties throughout the period of this Agreement.

Disclosing Party means the party disclosing Confidential Information to the Receiving Party.

Expenses means all pre-approved reasonable travel and out-of-pocket expenses incurred by us in connection with performing the Deliverables.

External Circumstances Event means any circumstance beyond either Party’s reasonable control.

Fees means the fees to be paid to us by you, as set out in the Proposal (including without limitation any Upfront Development Fees and/or Transaction Fees).

Insolvency Event means the appointment in relation to either Party of an administrator, provisional liquidator, liquidator or person having a similar or analogous function under the Laws of any relevant jurisdiction in respect of it or any action taken to appoint any such person and the action is not stayed, withdrawn or dismissed within 10 Business Days.

Intellectual Property includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, customer names or internet domain names.

Laws means acts, ordinances, regulations, rules, code and by-laws of the Commonwealth or any state or territory and includes the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth) or any similar or analogous laws under the laws of any relevant jurisdiction.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.

Personal Information is defined in the Privacy Act 1988 (Cth) and also includes any similar term as defined in any other privacy law applicable to you.

Personnel means, in relation to a Party, the officers, employees, contractors, sub-contractors and agents of that Party.

Proposal means the proposal attached to these terms and conditions.

Receiving Party means the party receiving Confidential Information from the Disclosing Party.

Software means the software provided to you as software either for download and installation or hosted on remote servers, and as used to provide any of the Deliverables, and includes any instructions in hard copy or electronic form and any update, modification or release of any part of that software after this Agreement is entered into by the Parties.

20. Interpretation

In this Agreement, unless the context otherwise requires:

1. a reference to this Agreement or any other document includes the document, all schedules and all appendices or annexures as novated, amended, supplemented, varied or replaced from time to time;
2. a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
3. a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
4. no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
5. a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
6. a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
7. a reference to time is to local time in New South Wales; and
8. a reference to $ or dollars refers to Australian Dollars.

21. Inconsistency and Precedence

If the documents making up this Agreement are inconsistent or conflicting, a document listed earlier in the following list takes priority over any document listed below it:

1. The Proposal setting out the key terms and their meanings including any Special Conditions;
2. The Appendices and Schedules attached to the Proposal;
3. the document setting out these main terms and conditions; and
4. any other document incorporated by reference.

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Service Terms and Conditions

1. Definitions and interpretation

1.1 Definitions

In this Agreement, unless the contrary intention appears:

• (1) Agreement means these standard terms and conditions, the Order Form and any schedule or annexure;
• (2) Dealership means the organisation(s) that market and distribute vehicles and which license the Information to AutoPlay for incorporation into the Services;
• (3) Business Day means a day that is not a Saturday, Sunday or any other day which is a public holiday or a bank holiday in Melbourne, Australia;
• (4) Cloud Provider means a service provider that provides the computing infrastructure (including on a managed services or "as a service" basis) on which the Services are provided, as determined by AutoPlay from time to time;
• (5) Customer Data means all data (whether or not it includes personal information) stored by the Customer or its Users on the Services;
• (6) Documentation means the user manual, training material, frequently asked questions and similar materials relating to the Services, as provided by AutoPlay to the Customer in electronic form from time to time;
• (7) Fees means all fees and charges payable by the Customer under this Agreement, including as set out in the Order Form;
• (8) Information means the information relating to motor vehicles marketed and distributed by Dealerships, and supplied to the Customer by AutoPlay as part of the Services;
• (9) Insolvency Event means:
  • (a) the Customer suspends payment of its debts generally, or is or becomes unable to pay its debts when they are due, or is or becomes unable to pay its debts within the meaning of the relevant laws;
  • (b) the Customer ceases, or threatens to cease, to carry on business; or
  • (c) a receiver, receiver and manager, administrator, trustee or similar official is appointed over any of the Customer's assets or undertakings, an application or order is made for the winding up or dissolution of the Customer, or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of the Customer, except for the purpose of an amalgamation or reconstruction which has AutoPlay's prior consent;
• (10) Intellectual Property Rights means copyright, trade mark, moral rights, confidential information, design, patent, trade, business or company names, or other proprietary rights, or any rights to the registration of those rights and any applications to register those rights (anywhere in the world);
• (11) Interface means the proprietary processes and systems developed by AutoPlay or any other third party, including but not limited to, software, hardware, specifications, data formats, security codes and other intellectual property, allowing for the transfer of data between the Services and any third party system or systems;
• (12) Malicious Code means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs;
• (13) Order Form means the order form executed by both parties for the provision of Services on these standard terms and conditions;
• (14) Permitted Purpose means the Services set out in the Order Form;
• (15) Services means the hosted, on demand service identified in the Order Form, including any Updates;
• (16) Subscription Date means the date for the commencement of the Services set out in the Order Form;
• (17) Subscription Term means the term of the Services set out in the Order Form;
• (18) Support Services means the support services set out in the Order Form;
• (19) Updates means fixes, patches and updates to the Services which are made generally available from time to time by AutoPlay to subscribers of the Services;
• (20) Usage Restriction means the usage restrictions set out in the Order Form; and
• (21) Users means the Customer and its employees.

1.2 Interpretation

In this Agreement:

• (1) reference to the singular includes the plural and the plural includes the singular, a person includes a body corporate and a party includes the party's executors, administrators, successors and permitted assigns;
• (2) reference to money is to Australian dollars, unless otherwise stated;
• (3) "including" and similar expressions are not words of limitation;
• (4) where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning;
• (5) headings are for convenience only and do not form part of this Agreement or affect its interpretation;
• (6) a provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Agreement or the inclusion of the provision in the Agreement;
• (7) if an act must be done on a specified day that is not a Business Day, it must be done instead on the next Business Day;
• (8) if a party consists of more than one person, this Agreement binds each of them separately and any two or more of them jointly;
• (9) an obligation, representation or
• (10) in favour of more than one person is for the benefit of them separately and jointly; and
• (11) a party which is a trustee is bound both personally and in its capacity as a trustee.

2. Services

2.1 Provision of Services

With effect from the Subscription Date, AutoPlay will provide the Services to the Customer and its Users in accordance with this Agreement.

2.2 Use of the Services

• (1) The Customer must only access and use the Services in accordance with this Agreement.
• (2) The Customer must only use the Services for the Permitted Purpose and in accordance with any Usage Restrictions.
• (3) Except as expressly permitted under this Agreement, the Customer must not, and must not allow any other person to:
  • (a) permit or allow any other person, other than its Users, access (directly or indirectly) to the Services or Documentation;
  • (b) sub-license, disclose, resell, publish, transmit or otherwise make available to any third party, other than its Users, any part of the Services or Documentation;
  • (c) modify, copy or create derivative works based on the Services or reverse engineer the Services (except to the extent permitted by non-excludable laws);
  • (d) use the Services for hire or rental, timesharing or service bureau or to the benefit of any third party (other than the Users and the Customer's clients in the ordinary course of running the Customer's business);
  • (e) access or attempt to access the Information by any means other than via the Services;
  • (f) send or store unlawful material (including Malicious Code) by means of the Services;
  • (g) use the Services or the Information in a way likely to mislead or deceive, cause confusion, or prejudice the distinctiveness or value of the Services, or likely to prejudice the goodwill or reputation of AutoPlay;
  • (h) attempt to gain unauthorised access to, or disrupt or bypass the security, integrity or performance of, the Services or any data contained in it;
  • (i) use the Services in a manner reasonably likely to adversely affect other users of the Services; or
  • (j) use the Services for the purpose of creating a competitive product or service or copying its features or user interface.
• (4) The Services and/or any Interface provided under this Agreement may contain portions of program code owned by third party licensors and such licensors will be entitled to enforce this Agreement as an intended third party beneficiary and AutoPlay holds the relevant rights of this Agreement on trust for the benefit of those third party licensors.

2.3 Changes to the Services

• (1) Subject to clause 2.3(2), AutoPlay may make changes to the Services from time to time (including any Cloud Provider), provided that the change does not materially decrease the functionality of the Services. These changes may include Updates and other changes that are transparent to the Customer. Once incorporated, these changes will form part of the Services.
• (2) AutoPlay may perform updates to the Services from time to time, including updates to the Information as periodically supplied by the Dealership. However, the Customer agrees that AutoPlay is under no obligation to perform, make or develop any specific enhancements to or customisation of the Services, although AutoPlay may offer such enhancements to the Customer during the Subscription Term.
• (3) The Customer acknowledges that updates or enhancements may not be compatible with existing customisation, configuration or interfaces, and that AutoPlay is not liable for any cost or expense that the Customer incurs in implementing or correcting the customisation, configuration and interfaces in respect of any such updates or enhancements.
• (4) The Customer agrees that it entered into this Agreement without relying on any warranty, representation or comments concerning any future functionality or features of the Services, and that the Customer has not relied on any warranty, representation or comments made by AutoPlay, including any roadmaps, with respect to future functionalities or features of the Services.

2.4 Customer Responsibilities

The Customer must:

• (1) provide and configure its own internal facilities (including computers, terminals, software, telecommunications facilities and internet connectivity) which meet the minimum recommended specifications necessary for utilising the Services;
• (2) do all things necessary so that AutoPlay is able to provide the Services in accordance with this Agreement;
• (3) to the extent that an Interface is offered, ensure that it holds a valid licence or has a right to use any third party software to which the Interface connects;
• (4) comply with AutoPlay's reasonable directions relating to the Services; and
• (5) maintain the confidentiality of all login credentials allocated to the Customer and its Users and not disclose them to any third party. If the Customer becomes aware of any unauthorised use of login credentials allocated to the Customer it must notify AutoPlay immediately by email support@autoplay.com.au

2.5 Users

• (1) The Customer is solely responsible for any access to or use of the Services by its Users and must ensure that its Users comply with this Agreement.
• (2) The Customer acknowledges that any access to or use of the Services by means of a username assigned to a User (whether or not such use is in fact by that person) is deemed to be access or use by that User.

3. Other Services

3.1 Support Services

AutoPlay will provide the Support Services in accordance with the Order Form.

3.2 Provision of other services

At the request of the Customer, AutoPlay may (but is not obliged to) provide other services that are otherwise outside the scope of this Agreement (including services excluded from Support Services) at a Fee agreed by the parties.

4. Fee

4.1 Payment of Fee

• (1) The Customer must pay AutoPlay all Fees in accordance with this Agreement and as may be set out in the Order Form.
• (2) The Customer may nominate a third party to pay the Fees on its behalf.

4.2 Invoice

AutoPlay will invoice the Customer for the Fee on or before the date on which the Fee is due. The invoice must be a valid tax invoice. All invoices must be paid within 20 days of the date of the invoice.

4.3 Late payment

If the Customer fails to pay any invoice within 10 days after payment is due, then without limiting AutoPlay's rights and remedies (including its right to suspend under clause 11 and terminate under clause 12) the Customer must, on demand, pay AutoPlay interest calculated at the rate that is 2% above the Reserve Bank of Australia cash rate, calculated and compounded daily, on that amount until the date of payment.

4.4 GST

Capitalised expressions in this clause have the same meaning as those expressions in the A New Tax System (Goods and Services Tax) Act 1999 (Cth). Any amount that may be payable under this Agreement is exclusive of any GST. If a party makes a Taxable Supply in connection with this Agreement for a Consideration which represents its Value, then the Recipient of the Taxable Supply must also pay, at the same time and in the same manner as the Value is otherwise payable, the amount of any GST payable in respect of the Taxable Supply. The Recipient's obligation to pay GST is subject to a valid Tax Invoice being delivered.

5. Intellectual Property

5.1 Reservation of rights

The Services and Documentation are protected by intellectual property laws. AutoPlay retains all rights (including Intellectual Property Rights) in relation to the Services and Documentation. The Customer has no proprietary or other interest in the Services or Documentation and nothing in this Agreement transfers any right, title or interest in the Services or Documentation to the Customer. To the extent necessary to use the Services, AutoPlay grants the Customer a non-exclusive, non-transferable and limited licence for the Customer and its Users to access and use the Services during the Subscription Term in accordance with this Agreement.

5.2 Ownership of modifications and improvements

• (1) AutoPlay owns all improvements, adaptations modifications made to the Services and Documentation and all related Intellectual Property Rights, including any suggestions, enhancement requests, recommendations or other feedback provided by the Customer or Users. The Customer assigns any and all the rights that the Customer may have in those improvements and modifications to AutoPlay, and agrees to execute all additional documents requested by AutoPlay to give effect to such assignment.
• (2) To the extent that AutoPlay (or its licensees or assignees) develops any updates, enhancements, new versions or new releases of the Services, they will be owned exclusively by AutoPlay.

6. Liability

6.1 Warranties

• (1) Each party warrants that it is empowered and authorised to enter into this Agreement.
• (2) The Customer warrants that it is engaged in the business of supplying or using Dealership's vehicle listings and is authorised to access the Information.
• (3) AutoPlay warrants that the Services will be performed substantially in accordance with the service description in the Order Form.

6.2 Exclusion of implied warranties

All statutory or implied conditions, guarantees and warranties are excluded by AutoPlay to the maximum extent permitted by applicable law. To the extent permitted by law, where liability under any condition, guarantee or warranty which cannot legally be excluded but can be validly limited, such liability is limited to:

• (1) in the case of goods (including the Documentation), the replacement of the goods or the supply of equivalent goods; the repair of the goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; and
• (2) in the case of the services (including the Services and Support Services), supplying the services again; or paying the cost of having the services supplied again.

6.3 No other warranties

• (1) To the maximum extent permitted by law and subject to clause 6.2, AutoPlay disclaims and excludes any warranty, representation or undertaking as to the purpose for which the Services, Support Services, and Documentation may be suitable, including any purpose for which the Customer intends to use the Services, Support Services and Documentation.
• (2) The Customer warrants to AutoPlay that it has not relied on any representation made by AutoPlay which has not been stated expressly in this Agreement, or upon any descriptions or specifications contained in any document including brochures, marketing and promotional materials produced by AutoPlay.
• (3) While AutoPlay has taken due care in developing the Services, to the extent permitted by law, AutoPlay does not warrant, and excludes all representations and warranties that:
  • (a) the Services are error-free or has no defects;
  • (b) the Information is accurate, complete or up-to-date;
  • (c) access to the Services will be uninterrupted or error free;
  • (d) the Services are free from Malicious Code; or
  • (e) the Services meet the Customer's requirements or are compatible with all operating systems and browsers.

6.4 Limitation and exclusion of liability

• (1) Despite any other provision of this Agreement and to the maximum extent permitted by applicable law, AutoPlay and its third party licensors are not liable to the Customer under contract, tort or otherwise in any circumstances for any indirect, economic, special or consequential loss or damage, or in any event for any loss of revenue, loss of production, loss of use, loss of profit, loss of anticipated savings or loss of data.
• (2) Subject to clause 6.2 and any laws the application of which may not be lawfully excluded, AutoPlay's aggregate liability to the Customer on any basis and in any circumstances (including liability for negligence) arising out of or in connection with this Agreement, the Support Services, Services, Documentation or their use will not exceed, and is expressly limited to, the amount paid in the preceding three months by the Customer to AutoPlay in respect of the Services which give rise to the claim.

7. IP indemnity

7.1 Indemnity for third party claims

Subject to clauses 7.2 and 7.3, AutoPlay indemnifies the Customer from and against any and all losses suffered or incurred by the Customer arising out of or in connection with any claim, action or proceedings against the Customer by any third person (other than a related body corporate of Customer or a person associated commercially with the Customer) in connection with the Customer's use of the Services, alleging an infringement by the Services itself of the Intellectual Property Rights of any third party (Third Party Claim), but only to the extent:

• (1) that the losses are awarded by the final judgment of a court of competent jurisdiction; or
• (2) of any settlement pursuant to this clause 7.

7.2 Procedures

If a Third Party Claim is made then:

• (1) the Customer must notify AutoPlay as soon as practicable;
• (2) AutoPlay may at its own cost conduct the defence of the Third Party Claim in the name of the Customer or negotiate any settlement of the Third Party Claim; and
• (3) AutoPlay may elect at its sole discretion to do one or more of the following:
  • (a) modify, or arrange for the modification of, the Services (but without adversely affecting its functionality) to render its use non-infringing;
  • (b) at no cost to the Customer, render the relevant activity non-infringing by procuring the right to exercise the relevant Intellectual Property Rights of the relevant person; or
  • (c) terminate this Agreement and refund the Customer any Fees paid in advance.

7.3 Limitations

AutoPlay has no liability for any claim of infringement arising from:

• (1) the Customer's non-compliance with the Documentation or any instruction, directions or specifications issued by AutoPlay in relation to the Services;
• (2) the combination use of the Services with any system or item not provided by AutoPlay;
• (3) the failure of the Customer to use an Update; or
• (4) the use of the Services in a way contrary to this Agreement or the intended use of the Services.

7.4 Entire liability

Despite any other provision in this Agreement, this clause 7 states the sole remedy of the Customer and entire liability of AutoPlay in relation to any allegations or claims of infringement of Intellectual Property Rights by any person in relation to the Services or its use.

8. Indemnity by the Customer

The Customer indemnifies AutoPlay from and against any and all losses suffered or incurred by AutoPlay arising out of or in connection with any claim, action or proceedings against AutoPlay by any third person (including a Cloud Provider) alleging that:

• (1) the Customer Data or AutoPlay's hosting of the Customer Data infringes the rights of that third party; and
• (2) use by Customer or its Users of the Services in breach of this Agreement or the Documentation infringes or violates the rights of the third party, or causes AutoPlay to be in breach of any agreement with that third party.

9. Confidentiality

9.1 Services and Documentation are confidential

The Customer acknowledges and agrees that the Services and Documentation are confidential to AutoPlay, and the Customer must not, without the prior written approval of AutoPlay, disclose the Services or Documentation (or any copy or part of them) or use them for any purpose other than the purposes of this Agreement or the purposes for which the Services and Documentation were provided or made available to the Customer.

9.2 Exceptions

The Customer is not in breach of clause 9.1 to the extent that:

• (1) the Services or Documentation are or become publicly available without breach of this Agreement; or
• (2) the Customer is required by law or any court to disclose the Services or Documentation. Before disclosing the Services or Documentation under this clause 9.2(2), the Customer must give AutoPlay sufficient prior written notice (to the extent permitted by law) to enable AutoPlay to seek a protective order or other relief from disclosure.

9.3 Steps to avoid disclosure

The Customer must take all reasonable steps to ensure that its officers, employees, agents and contractors do not make public or disclose the Services or Documentation in breach of this clause 9.

10. Customer Data

10.1 Ownership of Customer Data

• (1) The Customer will own and retain all right, title and interest in and to the Customer Data. The Customer may export the Customer Data from the Services by using the data export features of the Services.
• (2) AutoPlay will not use or disclose the Customer Data except to the extent required to perform its obligations under this Agreement.

10.2 Responsibility for Customer Data

• (1) The Customer will be responsible for the content of all Customer Data and for complying with all applicable laws in respect of the Customer Data.
• (2) Without limiting the generality of clause 10.2(1), the Customer must ensure that it has obtained all necessary consents and authorisation, and given all necessary notices, as are required by law for AutoPlay to:
  • (a) receive, store and process the Customer Data as part of providing the Services; and
  • (b) collect and store, from time to time, certain data relating to the Customer's use of the Services for its own internal purposes.

10.3 Security of Customer Data

AutoPlay will implement reasonable security measures to protect any Customer Data that is hosted on the Services from unauthorised access and disclosure.

10.4 Location of Customer Data

• (1) The Customer acknowledges that, as part of providing the Services, AutoPlay may store or process Customer Data at a location outside Australia (including systems operated by the Cloud Provider). Upon reasonable notice AutoPlay will provide Customer with a list of all jurisdictions in which the Customer Data may be held.
• (2) The Customer acknowledges that the nature of the Services means that AutoPlay may vary the storage location from time to time.

10.5 Deletion of Customer Data

The Customer acknowledges that AutoPlay may delete or destroy all Customer Data stored on the Services at any time after expiry of the Data Extraction Period set out in clause 12.5(1)(c).

11. Availability and suspension

11.1 Dependency on third parties

The Customer acknowledges and agrees that the availability of the Services depends upon permissions and services from third parties (including the Dealerships, Cloud Provider and any other third party licensors), which may be varied or terminated from time to time by these third parties. Notwithstanding any other provisions of this Agreement, AutoPlay may, without prior notice to the Customer and without any liability on the part of AutoPlay:

• (1) vary, terminate or limited the Services;
• (2) suspend the Services; or
• (3) vary the terms (including this Agreement) upon which the Services are provided, if any third party varies or terminates the services provided by it so that AutoPlay is no longer able to provide the Services in accordance with this Agreement. If the Customer does not accept material variation to the Services or to this Agreement made by AutoPlay under this clause 11.1, then the Customer may terminate this Agreement by notice to AutoPlay within 60 days of such variation. If this Agreement is terminated under this clause 11.1 (whether by AutoPlay or the Customer), AutoPlay will refund to the Customer the amount of the Fees paid in advance in respect of the remaining portion of the Subscription Term.

11.2 Suspension

• (1) AutoPlay may suspend the access to, and use of, the Services by Customer and its Users in the following circumstances:
  • (a) for any non-payment of Fees by the Customer;
  • (b) for the duration of any Force Majeure Event (as defined in clause 13.3);
  • (c) for any material breach of this Agreement by the Customer;
  • (d) if AutoPlay reasonably considers that suspension is necessary to protect the Services, the Customer Data, or any other computer systems and data (including in response to an external attack); or
  • (e) if the Customer is no longer permitted to access the Information.
• (2) AutoPlay may, in its sole discretion, restrict, limit or alter any compromised login credentials (including any which AutoPlay suspects may have been compromised) so as to completely or partially disable access to the Services via the compromised login credentials.
• (3) AutoPlay will give the Customer as much practicable prior notice of the suspension as possible, and will promptly end the suspension after the relevant circumstances have abated.

12. Term and termination

12.1 Expiry of Subscription Term

This Agreement commences on the Subscription Date and continues for the Subscription Term, unless terminated earlier.

12.2 Termination by the Customer

The Customer may terminate this Agreement at any time on 30 days' written notice to AutoPlay provided, however, that:

• (1) it is not in breach of this Agreement; and
• (2) where the Customer wishes to terminate this Agreement prior to the end of a Subscription Term, it must pay a termination fee equal to the Fees that would have been payable in relation to the remainder of the Subscription Term.

12.3 Termination for cause

• (1) Either party may terminate this Agreement immediately by notice in writing if:
  • (a) the other party is the subject of an Insolvency Event; or
  • (b) the other party fails to comply with any material provision of this Agreement and fails to remedy that failure within 20 Business Days after notice requiring it to be remedied.
• (2) If this Agreement is terminated under this clause 12.2 by the Customer, AutoPlay will refund to the Customer the amount of the Fees paid in advance.

12.4 Termination for cause by AutoPlay

Without limiting other provisions, AutoPlay may terminate this Agreement immediately if the Customer:

• (1) fails to pay any invoice within 10 Business Days after payment is due and such amount remains unpaid;
• (2) assigns or otherwise disposes of any interest or right it has under this Agreement without the prior written consent of AutoPlay; or
• (3) is no longer authorised to access the Information.

12.5 Effect of termination

• (1) Upon termination of this Agreement for any reason:
  • (a) unless expressly set out otherwise, AutoPlay is not required to provide the Customer any refund of any paid Fees;
  • (b) all rights and licences granted under this Agreement terminate immediately, and the Customer must immediately cease to use the Services and Documentation, and return to AutoPlay or destroy all copies of the Documentation; and
  • (c) subject to the Customer paying all outstanding Fees, AutoPlay will continue to provide the Customer with access to the Services for a period of 10 Business Days (Data Extraction Period) for the sole purpose of allowing the Customer to extract the Customer Data from the Services. AutoPlay may disable other functionalities of the Services during the Data Extraction Period.
• (2) Clauses 5, 6, 8, 9, 10, 12.5 and 13 survive termination of this Agreement.

13. General

13.1 No assignment

The Customer must not transfer, sub-license or assign any benefit or obligation under this Agreement to any third party without the prior written consent of AutoPlay. AutoPlay may, at any time, assign or sub-contract all or part of its rights and obligations under this Agreement.

13.2 Subcontract

AutoPlay may subcontract the performance of any part of its obligations to any person. AutoPlay will remain responsible to the Customer for the performance of any subcontracted obligations.

13.3 Force majeure

AutoPlay will not be liable for any or failure to perform or delay in performing any obligations under this Agreement to the extent caused by any cause or condition beyond its reasonable control, including fire, flood, act of God, war, insurrection, sabotage, acts of terrorism, industrial disturbance, failure of electrical or telecommunications networks, acts of vandalism and changes in legislation or regulations of any government (Force Majeure Event). The obligations of AutoPlay are suspended to the extent to which they are affected by the relevant Force Majeure Event as long as the Force Majeure Event continues.

13.4 Severability

If any provision in this Agreement is unenforceable, illegal or void or makes this Agreement or any part of it unenforceable, illegal or void, then that provision is severed and the rest of this Agreement remains in force.

13.5 Further assurance

Each party must promptly at its own cost do all things (including executing and if necessary delivering all documents) necessary or desirable to give full effect to this Agreement.

13.6 Entire understanding

This Agreement is the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement and supersedes any prior agreement or understanding on anything connected with that subject matter.

13.7 Variation

An amendment or variation to this Agreement is not effective unless it is in writing and signed by the parties.

13.8 Waiver

A party's failure or delay to exercise a power or right does not operate as a waiver of that power or right. The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right. A waiver is not effective unless it is in writing. 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.

13.9 Costs and outlays

Each party must pay its own costs and outlays connected with the negotiation, preparation and execution of this Agreement.

13.10 Notices

• (1) A notice or other communication connected with this Agreement (Notice) has no legal effect unless it is in writing.
• (2) In addition to any other method of service provided by law, the Notice may be:
  • (a) sent by prepaid priority post to the address of the addressee;
  • (b) sent by email to the addressee; or
  • (c) delivered at the address of the addressee.
• (3) The notice details of each party are set out in the Order Form, as varied by each party by notice to the other.
• (4) If the Notice is sent or delivered in a manner provided by clause 13.10(2), it must be treated as given to and received by the party to which it is addressed:
  • (a) if sent by post, on the 4th Business Day (at the address to which it is posted) after posting;
  • (b) if sent by email before 5.00pm on a Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt; or
  • (c) if otherwise delivered before 5.00pm on a Business Day at the place of delivery, upon delivery, and otherwise on the next Business Day at the place of delivery.
• (5) Despite clause 13.10(4)(b):
  • (a) an email message is not treated as given or received if within 2 hours after the time sent the sender receives an automated message that the email has not been delivered; and
  • (b) an email message is not treated as given or received if it is not received in full and in legible form and the addressee notifies the sender of that fact within 2 hours after the transmission ends or by 12 noon on the Business Day on which it would otherwise be treated as given and received, whichever is later.
• (6) A Notice sent or delivered in a manner provided by clause 13.10(2) must be treated as validly given to and received by the party to which it is addressed even if:
  • (a) the addressee has been liquidated or deregistered or is absent from the place at which the Notice is delivered or to which it is sent; or
  • (b) the Notice is returned unclaimed.

13.11 Governing law and jurisdiction

The law of New South Wales governs this Agreement. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and of the Commonwealth of Australia.

13.12 Counterparts

This Agreement may be executed in any number of counterparts. Each counterpart is an original but the counterparts together are one and the same agreement. This Agreement is binding on the parties on the exchange of executed counterparts. A copy of an original executed counterpart sent by facsimile machine or by email:

• (1) must be treated as an original counterpart;
• (2) is sufficient evidence of the execution of the original; and
• (3) may be produced in evidence for all purposes in place of the original.