This document (the “Agreement”) contains terms and conditions between your Company (“you”, “your” or “Partner”) and WhistleOut Pty Limited (“WhistleOut”, “us”, “we”, “our”) that govern your participation in the WhistleOut Partner Program (“Partner Program”).

For the Program and provision of services to commence, the Partner is required to fill up and sign a Partner Service Order covering the services (“Service Order”). Each Service Order entered into pursuant to this Agreement shall be governed by and construed in accordance with the terms and conditions of this Agreement, and each Service Order shall be deemed to incorporate the terms and conditions of this Agreement. To the extent the terms and conditions of this Agreement and the terms and conditions of any Service Order conflict, the terms and conditions of this Agreement will take precedence and control, unless the Service Order specifically states, with respect to a particular provision, that the provision in the Service Order is meant to control. Service Orders are intended to describe, among other things, the services to be provided by WhistleOut to the Partner, the scope and specifications of support, applicable service levels, service charges and/or revenue share, and any assumptions that govern the performance of the Services.

1. OUR SERVICES

The following services are available to our Partners under the Program:

1. We create and maintain web pages (“Service Web Pages”) that have the look, layout and feel dictated by Materials supplied by our Partner and located at a Website Subdomain supplied by us.
2. These Service Web Pages may be hosted by us by providing a ranked comparison of selected commercial terms of identified products for the information of site visitors based on search criteria selections made by such visitors (i.e., mobile plans, tablet plans, and broadband plans).
3. We facilitate the embedding and use of Widgets, or WhistleOut’s JavaScript enabled iframe with our proprietary software, data, content and embed code, on the Partner’s website. The Widget Terms of Use can be accessed at www.whistleout.com.au/Terms-Of-Use.

2. PARTNER OBLIGATIONS AND WARRANTIES

1. You agree to:

a. Deliver to us the Materials in a format specified by us no later than the agreed delivery date, to enable us to create Service Web Pages, Template HTML pages and functionality as suitable for integration as Service Web Pages. These should include your company logo, hero font and hero brand colour.

b. During the term of the Agreement and the Service Order, permit your brands to be displayed on the Service Web Pages (in accordance with the Materials you provided) and, as may be relevant the Widget, on the WhistleOut Website (including for these purposes any other domains, platforms or sites of WhistleOut) and in any marketing or advertising undertaken by WhistleOut in relation to its websites, platforms and domains.

c. Send within five (5) business days of receipt by email to [email protected] or such other email address we may specify all pre or post-sales queries or complaints regarding WhistleOut, the Service, the results of the searches provided by the Service, any Supplier or any of the Selected Products regardless of the means by which you receive such queries or complaints.

d. Allow the display of promotional widgets and direct links to your website to generate visitors to the Service Web Pages, including, but not limited to (i) WhistleOut widgets; (ii) links to the Service Webpages; (iii) articles to promote the categories of products and services specified in the Service Order; and (iv) WhistleOut content and technical related content pages.

2. You agree not to:

a. Use the Service Web Pages or WhistleOut Website in a manner that uses excessive resources or is likely to prejudice the efficient operation of the WhistleOut Website and the Service.

b. Use any method or process to consolidate or combine any WhistleOut Website or Service Web Pages (and as may be relevant the Widget) content with any other content, data, information, images, or material.

c. Use any method or process (including data scraping, collection or accumulation tool, robot, spider or scripted responses) for the purpose of obtaining, processing, copying, replicating, distributing, reconfiguring, republishing, viewing, assessing, analysing, modifying or repackaging the Widget or WhistleOut Website or Service Web Pages content.

d. Make statements or representations about WhistleOut, the Service, the results of the searches provided by the Service, any Supplier or any of the Selected Products which are inaccurate, misleading or deceptive (or may be so) or which would otherwise give rise to legal liability or affect (in a pejorative way) the reputation, goodwill, business or standing of WhistleOut or any of its Related Bodies Corporate.

Make available on any website, domain, platform, electronic interface or facility directly or indirectly owned, controlled or operated by (or on behalf of) the Partner or any Related Body Corporate of it, or their affiliates, partners, connected persons, licensees or agents, any product or service or offering equivalent, similar to or which would or might compete with the Service or business of WhistleOut in respect of the comparison of telecommunications (including mobile plans) and/or internet (including broadband plans offered by any retail service provider, internet service provider or concerning the nbn™) products and/or services (whether specific or bundled) which are available from time to time in or from the Territory.

3. You warrant that all materials posted or otherwise used in connection with the Partner Program (i) are not illegal; (ii) do not infringe upon the intellectual property or personal rights of any third party; (iii) do not contain ethically unacceptable copy (keywords, terms, metatags, descriptions and web designs) or create and promote a content which is in any way deceptive, misleading and does not represent actual and accurate operations of the service; and (iv) do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination, promotes illegal activities, contains profanity or otherwise contains materials that WhistleOut informs you that it considers objectionable.

3. THE SERVICE WEB PAGE AND OUR EMBEDDABLE WIDGETS

1. You acknowledge and agree to the following:

a. These Service Web Pages will be located at a Website Subdomain and will be operated, hosted, and managed by us independently of your Website, using WhistleOut infrastructure and web servers not visible to search engines. The Partner’s Website (and as may be relevant the Widget) will include direct follow links to the Selected Products pages on the Widget or the Service Web Pages.

b. The Widget or Service Web Pages will contain a “powered by WhistleOut” tagline plus WhistleOut logo and include a link to the WhistleOut Website.

c. You must seek and obtain the prior written approval (not to be unreasonably withheld) if you wish or propose to publish (directly, indirectly or syndication) any article or opinion piece or editorial or other content on the Partner Website, relevant domain or email where it concerns a single Supplier or its products or services. In the event that there are commercial link/s or widget/s within the content published by the Partner, WhistleOut’s consent should be secured before publication of the commercial links or widgets.

d. We may disable (permanently or temporarily) or modify, at any time, any links or functionality of the Service Web Pages and/or the Widget so that they do not appear and/or re-direct a user so that they land on another page, site or location (which may be the WhistleOut Website). This will enable us to inform the relevant Supplier and to assess and determine whether any such proposal or outcome will facilitate quality traffic generation and maintain or increase conversion rates. This is in the context that different Suppliers have differing tolerance levels and requirements with respect to traffic generation and as regards budgets and expenditure. You will not do or omit to do anything without first obtaining such approval and agree to take all steps required by WhistleOut or a Supplier with respect to such matters.

e. WhistleOut is responsible for entering and maintaining the relevant data, content and information (being plan data and content on the WhistleOut Website) presented on the Widget or the Service Web Pages. You acknowledge and agree that WhistleOut uses information supplied by Suppliers in good faith without making any further enquiries into its accuracy and WhistleOut is not liable to the Partner or to any third party for any information provided by a Supplier and made available as part of the Service that is (or may be) inaccurate, misleading or deceptive or which would otherwise give rise to legal liability.

f. The selection of search criteria used by the Service, the Suppliers and Selected Products included as part of the Service, the methods of ranking the Selected Products and the method and style of presentation of data and content on the Service Web Pages (and as may be relevant the Widget) are all at the sole discretion of WhistleOut.

g. You acknowledge that the Suppliers are not the only suppliers of the Selected Products in the Territory and that there may be other products or services available in the Territory of the same or similar kind as the Selected Products but which are not included in the Service.

4. COMPLIANCE WITH REGULATORY REQUIREMENTS

1. Both you and WhistleOut (the “Parties”, “Party”) acknowledge and agree that:

a. The Parties are respectively responsible for compliance with all applicable Regulatory Requirements, including with respect to our respective activities in the context of the provision of the Service and the Service Web Pages (and as may be relevant the Widget) as well as operation of the Partner’s Website.

b. The Parties will include such reasonable disclosures, disclaimers, qualifications and information on the Service Web Pages (and as may be relevant the Widget) and Partner’s Website as reasonably required by either of us from time to time to minimise liability at law and for the purposes of complying with all Regulatory Requirements.

c. Each Party will promptly notify each other of any users’ and/or regulatory authorities’ queries or complaints regarding the Service, the Service Web Pages (and as may be relevant the Widget) or the Partner’s Website actually received by it (by whatever means of receipt).

d. The Parties are duly compliant with all applicable laws, regulations and relevant regulatory requirements including, but not limited to: the Australian Consumer Law; the Privacy Act 1998(Cth) and Australian Privacy Principles; the Spam Act 2003(Cth); the Do Not Call Register Act 2006 (Cth); and the Telecommunications Consumer Protection Code C625:2012 (TCP Code).

2. Notification of Breaches. Without limiting either party’s obligations under any Laws, each party shall notify, within forty-eight (48) hours, the other party if it becomes aware of any actual or suspected instances of loss, interference, misuse, corruption, unauthorised access or unauthorised disclosure of Personal Information. The parties shall coordinate with each other to investigate the incident. With respect to giving notice of the incident to third parties, the Parties agree that they shall not inform any third party of any incident without first obtaining each other’s prior written consent.

5. REVENUE, DASHBOARD REPORTING AND PAYMENTS

1. For purposes of this clause and the Service Order, the following definitions shall apply:

a. Click Revenue means the net amount of revenue actually received by WhistleOut in respect of a Reporting Period for Completed Click-throughs in that Reporting Period.

b. Completed Click-through means an application for, enquiry concerning or purchase of a Selected Product by a visitor via the Service Web Pages (or Widget as relevant) which is thereby routed through to the Supplier’s relevant website, domain or platform in respect of pertinent Selected Products. This usually occurs when a visitor clicks a go or go to site button for the Supplier concerned.

c. Revenue means Click Revenue actually received by WhistleOut in a given Reporting Period in respect of the Service Web Pages as the case may be or the context requires. For the avoidance of doubt, Revenue does not include WhistleOut’s Share of Revenue after its calculation from the original Revenue (to avoid double-counting).

2. We will use our best efforts to keep you updated on pertinent details concerning this Agreement and the Service Order, by providing you access to a reporting Dashboard that facilitates the reporting of outcomes and made available by WhistleOut via a Microsoft Power BI reporting tool or other means from time to time.
3. Subject to receiving sufficient information from the relevant Suppliers and other relevant persons plus reconciliation, adjustment and accounting processes, the Dashboard is intended to provide near real-time information concerning any relevant period (including for the immediately preceding calendar month (Reporting Period):

a. Visitor numbers to the Website Sub-Domain per Selected Product
b. Service Web Page view numbers per Selected Product
c. Revenue per Selected Product
d. Yield per visitor to the Website Sub-Domain
e. Revenue per Supplier; and
f. Revenue by referrer.

4. You shall send invoices to WhistleOut on a monthly basis, and WhistleOut shall make payment to your nominated Bank Account in respect of your Share of Revenue entitlement within 90 days from receipt of such invoice. This arrangement is intended to allow a reconciliation period with Suppliers and finalisation of invoices and payment. WhistleOut shall have no obligation to make a payment to you in respect of any Revenue which is not actually received by WhistleOut as cleared funds and any statements with respect to Revenue entitlements or expectations on the Dashboard or otherwise must be construed and interpreted on that basis.
5. The Partner acknowledges that all payments due to it under this Agreement will be net of any applicable taxes, withholdings, statutory and fiscal deductions made by or due to any competent authority but subject to obligations in respect of Goods and Services Tax as defined in the GST Act as amended, and in accordance with Clause 10.
6. You acknowledge that you are entering into this Agreement without any guarantee of payment of any level of Revenue or that any minimum sums may become due to you in accordance with this Agreement. No assurance, representation or warranty is given to you as to any amount that may be payable to you, and you agree and acknowledge that you have not relied upon any representations or discussions relating to the expected amounts that may be payable to you in accordance with this Agreement.
7. Both Parties acknowledge and agree that neither is acquiring services from the other as a “consumer” for the purposes of (and as defined in section 3 of Schedule 2 of) the Competition and Consumer Act 2010(Cth). For these purposes, the Parties acknowledge (without representation, warranty or obligation) that the value of creating the Service Web Pages, the provision of the Widget and separately the value of the Service as a whole as well as its constituent parts each is reasonably anticipated to exceed $50,000.

6. INTELLECTUAL PROPERTY

1. All rights (including but not limited to all Intellectual Property Rights (IP rights) related to or arising from the provision of the Service, the Service Web Pages and any Widget, but excluding your Materials and your IP (which for clarity, are exclusively owned or licensed by and vest in the Partner) as well as the IP Rights of third parties and the trademarks and logos of Suppliers used for comparison purposes (collectively, the Relevant Rights)), are expressly reserved to WhistleOut, its Related Bodies Corporate and licensor(s) (as relevant) and you must not use, exploit, infringe or interfere with the Relevant Rights without WhistleOut's express prior written consent. You and your Related Bodies Corporate acquire no Relevant Rights (or rights concerning trademarks and logos of Suppliers or Intellectual Property Rights of third parties) and must not claim ownership of or a right to use or exploit any Relevant Rights (or rights concerning trademarks and logos of Suppliers or Intellectual Property Rights of third parties) in any form or manner except under the licences mentioned and stated in this Agreement.
2. The Partner must promptly notify WhistleOut in writing of any breach or infringement or alleged breach or infringement of the WhistleOut IP or WhistleOut’s Brands or other Relevant Rights (or rights concerning trademarks and logos of Suppliers) of which the Partner becomes aware.
3. WhistleOut warrants to the Partner that:

a. It owns and/or has a right to use (whether under licence or otherwise) the WhistleOut IP that is to be incorporated into and used in respect of the Service Web Pages (excluding the Partner’s Materials, Partner IP, Intellectual Property Rights of third parties and trademarks and logos of Suppliers used for comparison purposes) and such incorporation and use will not infringe the Intellectual Property Rights of any person;

b. It has a right (whether under ownership, licence or otherwise) to permit Partner to use the WhistleOut IP in accordance with the terms of this Agreement; and

c. No legal proceedings have been threatened or instituted by any third party against WhistleOut for the infringement of its Intellectual Property Rights or seeking to challenge the ownership of or right to use the WhistleOut IP that is to be incorporated into the Service Web Pages and it is not aware of any circumstances that are likely to give rise to any such proceedings or disputes.

4. WhistleOut grants the Partner (for the Term until expiry or termination of this Agreement) a non-exclusive royalty-free licence to use the WhistleOut IP in the manner and form contemplated by this Agreement but solely for the purposes contemplated by this Agreement, subject to the terms of this Agreement. The licence granted under this clause terminates upon termination or expiry of this Agreement at which time the WhistleOut IP must be returned immediately to WhistleOut or where directed by WhistleOut destroyed or permanently disabled.
5. Notwithstanding the above, the Partner acknowledges the right, title and interest of WhistleOut, WhistleOut’s Related Bodies Corporate and licensor(s) in the WhistleOut IP (including their ownership of the Intellectual Property Rights which vest in the WhistleOut IP and the Relevant Rights) and that the WhistleOut IP and the Relevant Rights remain the property of such persons.
6. You warrant to WhistleOut that:

a. You (and/or your Related Bodies Corporate) own and/or have a right to use (whether under licence or otherwise) the Partner IP that is to be incorporated into the Service Web Pages (plus the Widget as relevant) and such incorporation will not infringe the Intellectual Property Rights of any person;

b. You have the right (whether under ownership, licence or otherwise) to permit WhistleOut to use and modify as relevant (on a royalty free basis) the Partner’s IP in accordance with the terms of this Agreement; and

c. No legal proceedings have been threatened or instituted by any third person against the Partner for the infringement of its Intellectual Property Rights or seeking to challenge the ownership of or right to use and modify as relevant the Partner IP that is to be incorporated into the Service Web Pages (plus the Widget as relevant) and you are not aware of any circumstances that are likely to give rise to any such proceedings or disputes.

7. You confirm the grant to WhistleOut (for the Term until expiry or termination of this Agreement) a non-exclusive royalty-free licence to use the Partner IP in the manner and form contemplated by this Agreement, including the purpose of WhistleOut hosting, maintaining and promoting the Service Web Pages and solely for the purpose of carrying out its obligations, subject to the terms of this Agreement.
8. Each Party must not do anything that will or is likely to damage or diminish the other party’s Brands or Intellectual Property Rights or their respective rights, title and interest in such Brands and Intellectual Property Rights.

7. TERMINATION

1. The term of this Agreement will begin upon the date that the last party to this Agreement signs the Service Order (Effective Date) and will cease when terminated by either Party in accordance with the terms therein. Unless otherwise stated in the Service Order, either Party may terminate this Agreement with or without cause by giving the other party written notice at least thirty (30) days prior to the effective date of termination.
2. An Event of Default occurs if:

a. Either Party materially breaches this Agreement and such breach is either incapable of remedy or the defaulting party fails to remedy such material breach within 20 Business Days of receiving a notice in writing from the other party specifying the action required of the defaulting party to remedy the material breach;

b. Either Party engages in behaviour which breaches a Regulatory Requirement or commits a fraudulent act or omission;

c. A director of either Party is the subject of a banning order or disqualification order or a State or Territory prohibited order;

d. Either Party has an administrator, liquidator or provisional liquidator appointed to it;

e. Either Party resolves to wind up or is subject to an order to wind up (other than for voluntary reconstruction);

f. Either Party has a receiver, receiver and manager or official manager properly appointed to it or in respect of a substantial proportion of its assets or undertakings;

g. A court or tribunal makes an order that either party be wound up in insolvency, unless that party successfully appeals such order.

3. Where an Event of Default occurs, the non-defaulting party may terminate this Agreement and the Service Order by notice in writing to the defaulting party, and such termination becomes effective immediately upon the date that it is given to or served on the relevant Party.
4. If any of the following instances occur, WhistleOut may terminate this Agreement and the Service Order by notice in writing to the Partner, and such termination becomes effective immediately upon the date that it is served on the Partner:

a. The Partner defames, ridicules, brings into disrepute or otherwise affects the reputation (in a pejorative manner) of WhistleOut, its partners, Suppliers, Related Bodies Corporate or any of their employees, officers or personnel;

b. Traffic quality is or has been low which is or has been driving down conversion rates for Suppliers and this is not rectified to the reasonable satisfaction of WhistleOut within 30 days of the date of a notice from WhistleOut to the Partner to that effect; or

c. Traffic volumes (number of transaction clicks) are not meeting the benchmark requirements of WhistleOut from time to time and this is not rectified to the reasonable satisfaction of WhistleOut within 30 days of the date of a notice from WhistleOut to the Partner to that effect.

5. Upon termination or expiry of this Agreement, WhistleOut shall immediately cease providing the Service and shall remove and cease using the Partner IP and Materials. WhistleOut shall likewise use reasonable endeavours to ensure that the Service Web Pages are unable to be viewed by or used by internet users (which for these purposes includes removing where practicable all cached Partner IP from search engines and other identified places).
6. Upon termination or expiry of this Agreement, the Partner shall immediately cease providing Materials to us, cease using WhistleOut IP and remove the same from your Website. You shall likewise immediately cease using the Service Web Pages, including our Widget.
7. Neither Party will have any further obligations to the other party under this Agreement, except in respect of any liability for antecedent breach and any liability in respect of provisions which are expressed to continue in full force and effect, notwithstanding termination of this Agreement.
8. Upon termination, the Partner shall likewise end use of all WhistleOut intellectual property, and cease representing yourself as WhistleOut’s partner.
9. All rights to validly accrued payments, causes of actions and any provision specified to survive expiration or termination, or by their nature intended to survive expiration or termination, will survive expiration or termination of this Agreement.

8. WARRANTIES AND LIMITATION OF LIABILITY

1. Each Party warrants and represents that it has the full right, power and authority to enter into and perform this Agreement.
2. The Partner warrants that it has not relied on any representation made by WhistleOut which has not been stated expressly in the Agreement, or on any descriptions, illustrations or specifications contained in any document including publicity material produced by WhistleOut.
3. In no event will either Party be liable to the other for lost profits or any incidental, special, punitive, economic, exemplary, indirect or consequential damages (including, but not limited to, loss of business, loss of goodwill, lost savings, or business interruption) arising out of or in connection with this agreement, or its performance or breach, even if such Party has been advised of the possibility of such damages, and regardless of whether such damages were foreseeable.
4. To the extent permitted by law, the maximum aggregate liability of a Party for all claims and causes of action under, arising from, or in relation to this Agreement or its subject matter, whether in contract, tort, (including negligence), equity, under product liability and consumer protection legislation, under any other statute or regulation, under any indemnity or otherwise, is the amount of that party’s share of revenue in the 12 month (or lesser) period immediately prior to when the relevant cause of action or claim arose (or earliest in the case of multiple causes of actions or claims).
5. Each of the Parties is required to mitigate its losses arising with respect to any indemnity given to it under this Agreement.
6. The indemnifying party shall indemnify the other party, including the other party’s officers, employees and agents, against any claim, liability, loss, damage, costs (including the cost of any settlement and legal costs and expenses on a solicitor and own client basis), and expenses arising out of or as a consequence of a default or unlawful or negligent act or omission on the part of such indemnifying party (including if relevant the indemnifying party’s officers, employees, agents or subcontractors).
7. The liability of the parties (including any indemnities) shall be adjusted proportionately to represent the share of responsibility that the indemnifying party has for such actions, claims or loss according to the extent which the indemnifying party’s acts or omissions contributed to or caused such actions, claims or loss.
8. Nothing in this Agreement excludes, restricts or modifies any condition, warranty, statutory, guarantee, right or remedy implied or imposed by common law, statute or regulation which cannot be lawfully excluded, restricted or modified, which may include the Australia Competition and Consumer Law Act 2010 (Cth) and corresponding provisions of State or Territory legislation containing implied terms and/or statutory guarantees which operate to protect the purchasers of good and services in various circumstances.
9. Except as otherwise stated in this Agreement, all express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise) relating to this Agreement, that are not contained in it, are excluded to the fullest permitted by law.
10. This clause shall survive expiration or termination of this Agreement.

9. CONFIDENTIALITY

1. Each party agrees at all times during and for so long as legally permissible after the Term to keep confidential the Confidential Information of the other party and will not disclose or discuss the same without the prior written approval of the other party, except:

a. as specifically provided in this Agreement;

b. to the extent permitted or required by law and provided first that reasonable notice (where practicable) of the proposed disclosure has been provided to the other party;

c. to the extent reasonably and necessarily required to perform any other party’s obligations under this Agreement; or

d. where the information is or becomes public knowledge, but not if it becomes public knowledge because a party has breached an obligation of confidentiality, and such public knowledge is notified and agreed in writing by the parties.

2. Each party must not sell, transfer, assign or otherwise dispose of or grant any licence in relation to any Confidential Information of the other party or make available copies (whether by photocopying, photographic reproduction or by electronically recorded data) of any Confidential Information to any person other than with the prior written consent of the other party.

10. GST

The Parties acknowledge and agree that:

3. The consideration due or payable for any supply of any goods, services or any other things under this Agreement has been calculated without regard to, and is exclusive of, any GST;
4. If GST is imposed on any taxable supply made under this Agreement, the supplier will provide a tax invoice in accordance with the GST legislation; and
5. The relevant recipient of the taxable supply will pay the GST amount to the supplier at the same time as payment of the relevant Revenue (or upon receipt of a relevant tax invoice, whichever is later) or where relevant credit given in accordance with this Agreement.
6. Any references in this clause 10 to a term defined or used in the GST Law is (unless the context indicates otherwise) a reference to that term as defined or used in the GST Law.

11. RELATIONSHIP OF PARTIES

Nothing stated in this Agreement or any circumstances associated with it or its performance will be construed as constituting WhistleOut and the Partner as partners or joint venturers, or as creating or giving rise to any relationship of employer and employee, master and servant, principal and agent or any fiduciary relationship between WhistleOut and the Partner.

12. FORCE MAJEURE

Notwithstanding any other provision in this Agreement, no default, delay or failure to perform on the part of any party (except in relation to a payment or indemnification provision) will be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due entirely to causes beyond the reasonable control of the party charged with such default, including, but not limited to a Force Majeure Event.

13. NOTICES

All notices and consents required or permitted to be given under this Agreement (Notice) must be in writing and given by personal service, mail (postage prepaid) or email to the parties at their respective specified addresses or to such other address as either party may designate to the other by written notice.

14. ASSIGNMENT

Neither party may assign or otherwise transfer this Agreement or any rights or obligations under this Agreement without the prior written consent of the other party.

15. GENERAL

1. AMENDMENTS

WhistleOut reserves the right to modify any of these terms and conditions herein at any time at WhistleOut’s sole discretion. Such modification shall take effect upon posting to WhistleOut’s website. Your continued participation in the Partner agreement after publication of said modification will constitute binding acceptance of the change.

2. NO WAIVER

Any failure or delay by one party to compel performance by another party of any of the terms and conditions of this Agreement does not constitute a waiver of those terms or conditions, nor does it affect or impair the right of the first party to enforce them against the other party at a later time or to pursue remedies it may have for any subsequent breach of those terms or conditions.

3. SEVERABILITY

Any provision of this Agreement which is prohibited, unenforceable or invalid in whole or in part is only ineffective to the extent of the prohibition, unenforceability or invalidity and this does not affect the remaining part of that provision or the other provisions of this Agreement, which will continue in full force and effect.

4. COUNTERPARTS

This Agreement may be executed in one or more counterparts executed by one or more of the parties, each of which counterparts will constitute the one agreement which will be binding on all the parties when one such counterpart has been executed by each party.

5. GOVERNING LAW

The terms of this Agreement are governed by and shall be construed in accordance with the laws of the State of New South Wales, Australia and the parties submit to the non-exclusive jurisdiction of the Courts of New South Wales, Australia.