Terms and Conditions

1. Background

In these Terms, “Convert Digital” or “we” means Convert Digital Pty Ltd (ABN 26 168 245 878) and its officers, employees and agents and “you” or “Client” means the person(s) to whom the Services are provided.

2. Services

(a) Convert Digital agrees to provide the Services to the Client in accordance with the Proposal or as otherwise agreed between the parties in writing.

(b) By accepting a Proposal, or otherwise accepting commencement of the Services, the Client agrees to these Terms.

(c) Each Proposal will be open for acceptance for 30 days from the date of issue, unless Convert Digital agrees otherwise.

(d) The Client acknowledges and agrees that Convert Digital is not required to perform any obligations in connection with a Proposal that are not expressly stated or reasonably inferable from the terms of the Proposal.

3. Client obligations

The Client will:

(a) provide all Client Data required by Convert Digital to complete the Services in accordance with the Proposal and these Terms;

(b) carry out agreed preparations and take other steps reasonably requested by Convert Digital to perform the Services;

(c) grant Convert Digital access to the premises, equipment, computer bases, software, and hardware necessary for Convert Digital to perform the Services;

(d) provide Convert Digital with accurate, up to date and complete information necessary for Convert Digital to perform the Services; and

(e) use all reasonable endeavours to co-operate with Convert Digital to ensure the Services are delivered in accordance with the Proposal and these Terms.

4. User Acceptance Testing

(a) The Client may perform UAT in respect of any Deliverable only in accordance with the UAT processes set out in these Terms or a Proposal or as otherwise agreed between the parties in writing.

(b) Convert Digital will provide the Client with reasonable assistance to prepare and undertake each UAT and will be entitled to observe and participate in this testing process.

(c) Within 20 days following completion of the Services or delivery of the relevant Deliverable, the Client must conduct and complete the UAT and must either:

(i) give written notice to Convert Digital that it accepts the Deliverable; or

(ii) if the Deliverable does not substantially comply with the Proposal or these Terms, give written notice to Convert Digital, identifying the relevant failure, and providing Convert Digital with written reasons that identify the areas of non-compliance.

(d) If notice is served under clause 4(c)(ii), Convert Digital will either:

(i) accept the notice and perform the necessary corrections or modifications to the Deliverable so that they pass the UAT; or

(ii) respond in accordance with clause 4(f).

(e) Following any correction or modification, Convert Digital and the client must reperform the UAT in accordance with this clause 4. For the avoidance of doubt, if the Client fails to give written notice of any further non-compliance of re-provision of Deliverables in accordance with clause 4(c), the Deliverables will be deemed to be accepted.

(f) If, in Convert Digital’s reasonable opinion, a non-compliance identified in clause 4(c)(ii):

(i) has arisen through the Client’s negligence or wilful default; or

(ii) is, in Convert Digital’s reasonable opinion, either unfounded or otherwise unreasonable having regard to the Services or the Proposal, the matter will be resolved in accordance with clause 15.

(g) Each Deliverable will be accepted on the earlier of:

(i) the Client providing a notice to Convert Digital under clause 4(c)(i);

(ii) no notice having been received by Convert Digital under clause 4(c)(ii);

(iii) the Client instructing Convert Digital to proceed with the Services without addressing identified issues of non-compliance; or

(iv) the Deliverable being used in a live commercial environment.

5. Change Requests

(a) Where the Client (acting reasonably) wishes to make any change to the Services or the Deliverables, provided such change is within the reasonable capacity of Convert Digital to provide, the Client may submit a change request (Change Request) to Convert Digital. The Change Request must contain sufficient detail for Convert Digital to determine the effect of the requested change on the scope of the Services and Deliverables and the Fees (using Convert Digital’s then current charge rates).

(b) Within a reasonable period of receiving a Change Request, Convert Digital will provide to the Client a proposal (Amended Proposal) for performing the changes to the Services and/or the Deliverables including:

(i) the proposed new Services; and

(ii) any revised Fees and expenses.

(c) Any change to the Client Data notified to Convert Digital in writing after acceptance of a Proposal which results in a material increase to the costs and time necessary to perform the Services will amount to a change and compliance with such change will be subject to an Amended Proposal pursuant to clause 5(b).

(d) Convert Digital will have no obligation to make the requested change until the Amended Proposal has been accepted.

6. Progress and Timing

1.1 Time for delivery

Subject to clause 6.2, Convert Digital will use its reasonable endeavours to provide the Services to the Client by the time specified in the Proposal or as otherwise agreed between the parties in writing.

1.2 Extension to delivery

(a) If Convert Digital, having taken all reasonable steps to mitigate and overcome the delay, will not be able to provide the Services (or any part thereof) or any Deliverable by the time specified in the Proposal due to:

(i) an act, omission, or breach of this agreement by the Client;

(ii) a Force Majeure event; or

(iii) a Change Request, (each a Delay Event), it will be entitled to an extension of time to provide the Services or the Deliverable to the extent of the delay caused by the Delay Event.

(b) Convert Digital must notify the Client in writing setting out the delay and the steps taken to mitigate the effects of the Delay Event, as soon as reasonably practicable after becoming aware of the Delay Event.

7. Fees and Invoicing

1.3 Fees

(a) The Client will pay Convert Digital the Fees for the Services.

(b) Where the Fees are not set out in a Proposal, Convert Digital will charge and the Client will pay the Fees in accordance with Convert Digital’s standard price list, as amended from time to time.

1.4 GST

(c) Unless expressly stated otherwise, any Fees specified in these Terms or a Proposal are exclusive of Goods and Services Tax (GST).

(d) If GST becomes payable in relation to a supply made under or in connection with these Terms or a Proposal, Convert Digital may, in addition to any amount or consideration payable under these Terms, recover from the Client on demand an additional amount on account of GST, such amount to be calculated by multiplying the amount or consideration payable by the Client for the supply by the prevailing GST rate.

1.5 Additional Services Fee

(e) In addition to the Services Fee, the Client will pay all reasonable costs incurred by Convert Digital while performing support tasks, including but not limited to data communication costs, third party hosting costs, and the costs of any third-party software/plugins unless expressly specified otherwise in a Proposal (Additional Services Fee). Payment of an Additional Services Fee is conditional on Convert Digital providing the Client with a reasonable estimate of the expected costs in writing. Additional Services Fees are limited to the actual cost incurred by Convert Digital.

(f) Convert Digital will together with its invoice for the Services Fee, submit details of any Additional Services Fee to the Client.

1.6 Invoices

(a) Where payment terms are set out in a Proposal, Convert Digital will invoice for the Services on the terms set out in the Proposal.

(b) Where (a) does not apply:

(i) where it has been agreed that a minimum sum is to be paid for the Services (Minimum Sum), unless otherwise agreed between the parties, Convert Digital will invoice the Minimum Sum as follows:

(A) 40% of the Minimum Sum prior to commencement of the Services;

(B) 30% of the Minimum Sum upon of delivery of the Services and Deliverables to the Client for UAT; and

(C) 30% of the Minimum Sum on the earlier of successful completion of UAT, commercial launch of the Services and/or Deliverables, or acceptance by the Client (whether express or implied and by notice or conduct) that the Services are completed; or

(ii) in all other circumstances, within 10 business days of the last day of each fortnight, Convert Digital will issue to the Client an itemised invoice for the Fees and charges payable in respect of that period.

(g) The Client must pay all invoices within 14 Business Days of receipt, unless a later date is prescribed on the invoice or agreed to in writing by the parties.

1.7 Failure to pay

If the Client does not pay the Fees on or before the due date, the Client will pay interest on overdue payments of 1% per month and Convert Digital will be entitled to withhold delivery or part thereof of Services yet to be provided until the outstanding Fees (including interest) are paid in full.

1.8 Set off

Convert Digital may, without limiting any other rights or remedies it may have, set off any amounts owed to it by the Client under these Terms against any amounts payable by Convert Digital to the Client.

8. Intellectual Property Rights

1.9 Ownership of Background IP

(a) Each party owns its Background IP.

(b) The Client grants Convert Digital a non-exclusive, royalty-free, personal, revocable, non-sublicensable and non-transferable licence to use the Client's Background IP during the Term for the sole purpose of providing the Services.

(c) Convert Digital grants the Client a non-exclusive, royalty-free, perpetual, irrevocable, sub-licensable and transferable licence to use the Convert Digital's Background IP as embodied in the Services, Deliverables and the Documentation to the extent necessary for the Client to obtain the full benefit of the Services and Deliverables.

1.10 Ordinary Course Services IP

(d) The Intellectual Property Rights in the Ordinary Course Services are and shall remain the property of Convert Digital (or in the case of any Third Party Product, the Third Party Provider), and Convert Digital reserves the right to grant a licence to use such Intellectual Property Rights to any other party or parties.

(e) Convert Digital grants the Client a non-exclusive, royalty-free, perpetual, irrevocable, sub-licensable and transferable licence to use the Intellectual Property Rights as embodied in the Ordinary Course Services to the extent necessary for the Client to obtain the full benefit of the Services and Deliverables.

1.11 Developed IP

All Developed IP vests in the Client on the later of creation and payment of all Fees with respect to such Deliverable, notwithstanding anything else.

1.12 Client Data

(f) All Intellectual Property Rights in the Client Data remain the property of the Client or relevant third parties and nothing in these Terms will be construed as giving Convert Digital any rights to such Intellectual Property Rights.

(g) Client Data constitutes Confidential Information of the Client and Convert Digital must use, store, handle and share Client Data safely in accordance with its privacy policy and these Terms.

1.13 Client Name

Convert Digital may use the Client’s name and trade mark on its website and advertising or promotional material, in order to disclose that the Client is a customer of Convert Digital.

1.14 Client warranty and indemnity

(h) The Client warrants that:

(i) it owns, or holds any necessary license of, all Intellectual Property Rights in the Client Data; and

(ii) in utilising any Client Data, Convert Digital will not infringe, violate or otherwise conflict with any Intellectual Property Rights owned by a third party.

(i) The Client indemnifies Convert Digital from and against any liability arising out of any claim by a third party that the Client Data violates or infringes any Intellectual Property Rights owned by a third party.

1.15 Convert Digital warranty and indemnity

(j) Convert Digital warrants that:

(i) it owns, or holds any necessary license of, all Intellectual Property Rights in the Services and the Deliverables (other than Third Party Products) (Convert IP); and

(ii) in utilising the Convert IP, the Client will not infringe, violate or otherwise conflict with any Intellectual Property Rights owned by a third party.

(k) Convert Digital indemnifies the Client from and against any liability arising out of any claim by a third party that the Convert IP violates or infringes any Intellectual Property Rights owned by a third party.

9. Term and termination

1.16 Term

(a) This agreement will commence upon the Commencement Date and will continue until terminated under clause 9.3, by mutual written agreement between the parties or as otherwise set out in a Proposal.

(b) If no term is expressly set out in a Proposal or otherwise agreed between the parties, the Proposal and these Terms will be terminable (including for convenience) by either party on 30 days’ written notice.

1.17 Suspension

(c) If the Client is in breach of these Terms, including due to non-payment of any invoice by the due date, Convert Digital may immediately suspend the Services until such breach is remedied.

(d) Convert Digital may terminate this agreement, without liability to the Client, by notice in writing if the Services are suspended under clause 9.2(a) for 30 days or more.

(e) In the event of a suspension under clause 9.2(a), any deadline agreed under a Proposal or otherwise with respect to the performance of the Services will be extended by an amount of time equal to the period of suspension.

1.18 Termination for cause

In addition to any other rights to terminate set out in these Terms either party may at any time terminate this agreement with immediate effect by giving written notice to the other party if:

(f) the other party fails to pay any amount due pursuant to these Terms on the date for payment and remains in default not less than 14 days after being notified in writing to make such payment;

(g) the other party commits a material breach of these Terms and (if such breach is remediable) fails to remedy that breach within 30 days of being notified in writing to do so; or

(h) the other party suffers an Insolvency Event.

1.19 Obligations on termination

(i) On termination, each party will as soon as reasonably practicable:

(i) return, destroy or permanently erase (as directed in writing by the other party) any documents, handbooks, storage devices or other information or data provided to it by the other party containing, reflecting, incorporating or based on Confidential Information belonging to the other party;

(ii) permanently delete any proprietary software belonging to the other party from its IT network or its storage devices;

(iii) promptly return (within ten days from termination or request) to the disclosing party all tangible Confidential Information (and all copies thereof) of the disclosing party, or upon written request from the disclosing party, destroy such Confidential Information;

(iv) cease all further use of the other party’s Confidential Information, whether in tangible or intangible form; and

(v) return all of the other party’s equipment and materials, provided that:

(vi) the Client may retain copies of any Convert Digital Confidential Information incorporated into the Deliverables or to the extent necessary to allow it to make full use of the Services; and

(vii) if a party is required by any law, regulation, or government or regulatory body to retain any documents or materials containing the other party’s Confidential Information, it will notify the other party in writing of such retention, giving details of the documents and/or materials that it must retain.

(j) On termination for any reason, the Client will immediately pay any outstanding unpaid invoices and interest due to Convert Digital.

Convert Digital will submit invoices for any Services that it has supplied, but for which no invoice has been submitted, and the Client will pay these invoices immediately on receipt.

(k) On termination by Convert Digital pursuant to clause 9.2(b) or 9.3 or termination by the Client other than pursuant to clause 9.3, any balance not yet paid in relation to a Minimum Sum will become immediately payable to Convert Digital.

10. Confidentiality

1.20 Information to be kept confidential

(a) Each party agrees to, and will ensure each of its officers, employees, agents, and contractors:

(i) hold in strict confidence all Confidential Information of the other party;

(ii) use the Confidential Information solely to perform its obligations or to exercise its rights under these Terms or a Proposal; and

(iii) do not transfer, display, convey or otherwise disclose or make available all or any part of such Confidential Information to

any third party, unless required for the performance of that party’s obligations under these Terms or a Proposal; and

(iv) use its best endeavours, including keeping such information in a safe place and implementing adequate security measures, to ensure that all Confidential Information is secure from unauthorised access, use, disclosure or copying by third parties.

(b) The obligations in clause 10.1(a) do not apply:

(i) to the extent necessary to enable disclosure required by law;

(ii) to any disclosure agreed in writing between the parties; or

(iii) where the Confidential Information has entered the public domain other than as a result of a breach by the Client of these Terms.

11. Limited warranty and exclusion of liability

1.21 Limitation of Liability

(a) This clause sets out the entire financial liability of the parties (including any liability for the acts or omissions of its employees, agents and subcontractors) to each other in respect of:

(i) any breach of these Terms;

(ii) any use made of the Services or the Deliverables; and

(iii) any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms.

(b) Where the delivery of the Services requires Third Party Products, the Client acknowledges and agrees that:

(i) Convert Digital does not warrant, guarantee, or represent anything in respect of the Third Party Products or that the use of the Third Party Products will be uninterrupted or error-free;

(ii) Convert Digital will have no liability for any Third Party Products or the Client’s use of them, including any change to the Third Party Products or their user terms; and

(iii) the Third Party Products will be co-ordinated by Convert Digital but may be provided directly by the Third Party Provider to the Client.

(i) the Client will be solely responsible for the use of any Deliverable, Third Party Products, or the Services by the Client;

(ii) Convert Digital will have no liability for any injury, loss, damage, cost, or expense caused by errors or omissions in any information or instructions provided to Convert Digital by the Client in connection with the Services;

(iii) except as set out in a Proposal or otherwise agreed between the parties, Convert Digital is not obliged to provide ongoing support or maintenance in relation to the Services and is not responsible for any damage, loss, cost or expense caused by the introduction, addition, migration or integration of any software, product or system by the Client after delivery of the

Services and Deliverables; and

(iv) subject to clause 11.5 below, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are excluded from these Terms.

1.22 Mitigation

Each party must mitigate any loss it suffers as a result of the breach by the other party to these Terms or any warranty or indemnity provided under these Terms.

1.23 Maximum liability

(d) Subject to clause 11.3(b), the total liability of each party arising under or in connection with these Terms or a Proposal will be limited in the aggregate to the total Fees payable in the previous 12 month period preceding the claim.

(e) Clause 11.3(a) will not limit or exclude the liability of either party for any claim arising from:

(i) death or personal injury or damage to property resulting from negligence; or

(ii) fraud or fraudulent misrepresentation; or

(iii) the deliberate default or wilful misconduct of that party or its employees, agents or contractors;

(iv) the non-payment of any Fees; or

(v) the indemnities contained in clauses 8.6 and 8.7.

1.24 Consequential Loss

Neither party will be liable to the other or any other person for any Consequential Loss.

1.25 Australian Consumer Law

To the extent that any rights cannot be excluded under the Australian Consumer Law, Convert Digital’s liability will be limited to, at its election, the re-supply of the Services or the payment of the cost of having the Services supplied again.

1.26 Warranty

Convert Digital will, at its cost and at its option repair or replace any defective Deliverables or re-perform defective Services provided that notice of such defect is provided in writing to Convert Digital within 30 days of completion of UAT or otherwise delivery of the relevant Deliverables or Services.

12. Data Protection

1.27 Compliance with Data Protection Legislation

(a) Both parties must comply with all applicable requirements of the Data Protection Legislation.

(b) Without prejudice to the generality of clause 12.1(a), the Client will ensure that it has all necessary and appropriate consents and notices in place to enable lawful transfer of any personal data to Convert Digital for the duration and purposes of these Terms so that Convert Digital may lawfully use, process and transfer the personal data in accordance with these Terms on the Client’s behalf.

(c) Convert Digital will notify the Client as soon as reasonably practicable if it becomes aware of any security incident affecting its network and information systems that could potentially affect the Client and will respond without delay to all queries and requests for information from the Client about any security incident, whether discovered by Convert Digital or the Client.

1.28 Responsibilities if PCI DSS service provider

(d) Where the Client is a PCI DSS service provider, it acknowledges that it will be responsible for the security of any cardholder data that it possesses or otherwise stores, processes, or transmits on behalf of a customer or client, or to the extent that the Client could impact the security of the Client’s cardholder data environment.

(a) The Client indemnifies Convert Digital from and against any liability arising out of any claim by a third party with respect to any improper use of cardholder data supplied to the Client by that third party.

13. Non-solicitation

(a) During the term of these Terms and for a period of twelve months after its termination neither party will, without the prior written consent of the other, solicit, or permit any related entity of that party to solicit, the employment of any person who is employed by the other party or its related entities in the course of procuring, developing, supplying, maintaining or supporting the Services or a Deliverable or any part of it.

(b) If a party breaches clause 13(a), then it will pay to the other party an amount equal to twelve months’ salary (excluding any bonus or benefits) for the employee concerned in recognition only of the disruption that such inducement has caused to the efficient conduct of the other party's business.

14. Force Majeure

Neither party will be liable for any delay or failure to perform its obligations pursuant to this document if such delay is due to an event of Force Majeure.

15. Dispute Resolution

(a) Neither party may commence court proceedings concerning any dispute between the parties arising out of or in relation to this document (Dispute), unless the party starting the proceedings has complied with this clause 15.

(b) A party claiming that a Dispute has arisen must notify the other party in writing, specifying the nature of the Dispute (Dispute Notice).

(c) Following the Dispute Notice being given, the CEO (or an authorised person) of both parties must endeavour in good faith to resolve the Dispute within 14 days.

(d) If the Dispute is not resolved within 14 days of the Dispute Notice being given, the parties must endeavour in good faith to resolve the

Dispute by mediation as follows:

(i) if the parties fail to agree on the appointment of a mediator within 21 days of the Dispute Notice being given, either party may request the Resolution Institute to nominate a mediator (which nomination the parties must accept);

(ii) if the mediator accepts the appointment, the parties must comply with the mediator’s instructions;

(iii) if the Dispute is not resolved within 30 days of the appointment of a mediator, the mediation ceases;

(iv) the parties will be jointly responsible for the fees of the mediation, and each party is to bear its own costs in relation to the mediation;

(v) the mediation will be held in Brisbane, Queensland, but parties may attend by video link if travel is not viable or reasonable; and

(vi) the parties may be legally represented at the mediation.

(e) Nothing in this clause prevents a party from seeking urgent interlocutory relief in a court.

16. Modern slavery

(a) Each of the Client and Convert Digital (each, a Warrantor) represents and warrants to the other party (Counterparty) that:

(i) it takes reasonable steps to prevent the occurrence of modern slavery practices within its organisation and supply chains;

(ii) it is not aware of any circumstances within its supply chain or operations that could give rise to an investigation, inquiry, or

enforcement proceedings by any governmental, administrative, or regulatory body regarding any offence or alleged offence, or breach or alleged breach of, or in connection with, any Modern Slavery Laws,

(iii) any services supplied by the Warrantor under this document have not been supplied by a third party that is known to have engaged in, or is engaging in, modern slavery practices, and the Warrantor has taken reasonable steps to confirm this; and

(iv) neither the Warrantor nor any of its officers or personnel has been convicted of any offence involving modern slavery or has been or is the subject of any investigation, inquiry, or enforcement proceedings by any governmental, administrative, or regulatory body regarding any offence or alleged offence of or in connection with modern slavery.

(b) A Warrantor will promptly notify the Counterparty if it becomes aware of or suspects such modern slavery practices within its supply chain or business operations and must provide the Counterparty with all information reasonably requested to enable the other party to comply with Modern Slavery Laws.

(c) A Counterparty may, upon providing reasonable notice and at its own cost, audit the Warrantor’s operations, facilities and working conditions, procedures, and systems to satisfy itself as to their compliance with this document, providing that such audits are carried out during business hours and on reasonable prior notice to the other party.

(d) If a Warrantor fails to comply with this clause, the Counterparty may advise in writing that it has suspended the operation of this document until any such breach is rectified to the Counterparty’s reasonable satisfaction.

17. General

1.29 Amendments

(a) Convert Digital may update these terms from time to time and the latest copy will always be available at www.convertdigital.com.au.

(b) Where any changes to these terms are material, Convert Digital will also provide written notice to the Client of such changes.

(c) Any change to the terms will take effect upon renewal of any term, or where services are provided on a periodic basis, on the commencement of the next period.

1.30 Governing law and jurisdiction

The laws of Victoria govern this document and each party irrevocably submits to the non-exclusive jurisdiction of the courts of Victoria and courts competent to hear appeals from those courts.

1.31 Assignment

Neither party may assign, in whole or in part any of its rights and obligations under this document without the prior written consent of the other party.

1.32 Severability

A clause or part of a clause of this document that is illegal or unenforceable may be severed from this document and the remaining clauses or parts of the clause of this document continue in force.

1.33 Entire agreement

These Terms supersede all previous agreements about its subject matter. This agreement embodies the entire agreement between the parties.

1.34 Further assurances

Each party must do all things reasonably necessary to give effect to this document and the transactions contemplated by it.

1.35 Costs

Each party bears its own costs in relation to the preparation of these Terms.

1.36 No waiver

(d) The failure of a party to require full or partial performance of a provision of these Terms does not affect the right of that party to require performance subsequently.

(e) A single or partial exercise of or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy.

(f) A right under these Terms may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in that waiver.

1.37 Notices

(g) A notice, consent or communication under these Terms must be in writing, signed by or on behalf of the person giving it, addressed to the person to whom it is to be given and delivered by hand, sent by prepaid mail or sent by email to that person's address as specified in the Proposal or as the person notifies the sender.

(h) A notice, consent or communication is given and received:

(i) if it is hand delivered, on the day it is given;

(ii) if it is sent by post, three business days after posting (if within Australia) or seven business days after posting (if outside

Australia); and

(iii) if it is sent by email, that day, if the time of departure from the sender's mail server is before 5.00pm on a business day, or the next business day in any other case, unless the sender receives an automated message generated by the recipient's mail server (other than an 'out of office' message or other response generated by or at the instigation of the recipient) that the email has not been delivered within two hours.

18. Defined terms & interpretation

1.38 Defined terms

In these terms:

(a) Australian Consumer Law means schedule 2 to the Competition and Consumer Act 2010 (Cth).

(b) Background IP means the Intellectual Property Rights owned or licensed by a party independently of that party performing its obligations under or in connection with these Terms, whether before, during or after the term.

(c) Bespoke Deliverable means a Deliverable where the parties have agreed in writing that the Intellectual Property Rights created in such Deliverable will be owned by the Client.

(d) Business Day means a day that is not a Saturday, Sunday or public holiday in Melbourne, Victoria.

(e) Client Data means all information provided by the Client for the purposes of providing the Services to be stored, transmitted, processed and/or retrieved by Convert Digital in its performance of the Services.

(f) Commencement Date means the date of acceptance of these Terms.

(g) Confidential Information means any information:

(i) relating to the business and affairs of a party;

(ii) relating to the customers, clients, employees, sub-suppliers or other persons doing business with a party;

(iii) relating to these Terms or a Proposal;

(iv) relating to the Intellectual Property Rights or Source Code of a party;

(v) which is by its nature confidential;

(vi) which is designated as confidential by a party; or

(vii) which the other party knows or ought to know, is confidential, and includes all trade secrets, knowhow, marketing, financial and customer information, forecasts, and strategies and any other commercially valuable information of a party.

(h) Consequential Loss means indirect, economic, special or consequential loss or damage, loss of revenue, time, goodwill, data, anticipated savings, opportunity, loss of production and loss of profit, and includes loss or corruption of data, hosting or business interruption costs), loss of page rank or page indexing caused by search engine algorithm changes or in connection with any Client or third party provided content or software that may be upload, transmitted, placed, added or otherwise used in relation to the Services or as a result of a data breach within the Client’s business.

(i) Data Protection Legislation means:

(i) the Privacy Act 1988 (Cth) and any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued under it, as amended from time to time;

(ii) the Australian Privacy Principles (or APPs) contained in schedule 1 of the Privacy Act referred to in (i); and

(iii) all other laws, regulations, registered privacy codes, privacy policies and contractual terms applicable in the jurisdiction where the Services are being provided that relate to the processing of personal information.

(j) Deliverables means a deliverable that Convert Digital agrees to provide to the Client as set out in a Proposal.

(k) Developed IP means any Intellectual Property Rights (excluding any Background IP) created or developed by Convert Digital in a Bespoke Deliverable.

(l) Documentation means any operating manuals, user instruction manuals, technical literature and all other related materials in human-readable or machine-readable forms supplied by Convert Digital as part of the Deliverables.

(m) Fee means the fees for the Services payable by the Client in accordance with these Terms or a Proposal and includes the Services Fee and any Additional Services Fee.

(n) Force Majeure means an event outside of the control of a party and includes pandemic, fire, storm, flood, earthquake, explosion, war, act of a public enemy, terrorist act, epidemic, electrical or telecommunications failure, cyber attack (including any denial of access of service, malware, ransomware or electronic theft or fraud) other than if caused by the recklessness or wilful conduct of either of the parties, including by way of a failure to comply with Data Protection Legislation, but excluding a failure to pay money.

(o) Insolvency Event means any of the following events concerning a party:

(i) if an administrator, liquidator, receiver, receiver and manager or other controller is appointed to, or over, any of the property or undertaking of the party;

(ii) if the party is unable to pay its debts when they become due and payable;

(iii) if the party ceases to carry on business; or

(iv) if any event happens in Australia or any other country or territory in respect of a party that is similar to any of the events or circumstances referred to in this definition

(p) Intellectual Property Rights means all industrial and intellectual property rights throughout the world, whether registered, unregistered or unregistrable, including all copyrights, patents, trademarks, service marks, designs, confidential information, trade secrets, know how, data and databases, systems and domain names.

(q) Minimum Sum has the meaning set out in clause 7.4(i).

(r) Modern Slavery Laws means all applicable modern slavery laws, statutes, regulations, and codes in force from time to time including but not limited to the Modern Slavery Act 2018 (Cth).

(s) Ordinary Course Services means each of the Services and Deliverables that are not Bespoke Deliverables.

(t) Proposal means a proposal for Services provided to the Client by Convert Digital, which may be in the form of a written scope, statement of works or other form provided by Convert Digital to the Client from time to time.

(u) Services means the services to be provided by Convert Digital as specified in each Proposal , including (as applicable) the:

(i) provision of Ordinary Course Services;

(ii) delivery of the Deliverables; and

(iii) Third Party Products.

(v) Services Fee means the fee set out in a Proposal or if not specified, an amount calculated at Convert Digital’s usual rates and charges to carry out the Services and reviewed annually.

(w) Terms means the terms and conditions set out in this agreement.

(x) Third Party Providers means the owner of the Third Party Products.

(y) Third Party Products means the software program or product not proprietary to Convert Digital, which is owned by a Third Party Provider, and which form part of the Deliverables or Services or may otherwise be used by Convert Digital to deliver the Services.

(z) UAT means User Acceptance Testing.

1.39 Interpretation

In these Terms:

(aa) a reference to a clause, schedule, annexure or party is a reference to a clause of, and a schedule, annexure or party to, this document and references to this document include any schedules or annexures;

(bb) a reference to a party to this document or any other document or agreement includes the party's successors, permitted substitutes and permitted assigns;

(cc) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;

(dd) a reference to a document or agreement (including a reference to these terms) is to that document or agreement as amended, supplemented, varied or replaced;

(ee) a reference to legislation or to a provision of legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;

(ff) if any day on or by which a person must do something under this document is not a Business Day, then the person must do it on or by the next Business Day;

(gg) a reference to a person includes a corporation, trust, partnership, unincorporated body, government and local authority or agency, or other entity whether or not it comprises a separate legal entity;

(hh) a reference to '$' or 'dollar' is to Australian currency; and

(ii) the meaning of any general language is not restricted by any accompanying example, and the words 'includes', 'including', 'such as', or 'for example' (or similar phrases) do not limit what else might be included.