Terms & Conditions

Terms Of Service

1. Background

A. EvenBetter offers a gender gap management software solution. The Solution enables organisations to effectively monitor, manage, and take steps that can reduce gender gaps.

B. By entering into the Engagement Form and using EvenBetter Services, You agree to be bound by these Terms of Service.

C. These Terms of Service, together with the Engagement Form signed by You, constitutes a binding agreement between EvenBetter and You (Agreement).

2. Grant of Licence

2.1 Subject to the terms and conditions set out in these Terms of Service, EvenBetter grants You a temporary, royalty-free, non-exclusive, non-transferable, non-assignable right to use and exploit the Relevant IP and Trade Marks and any further accompanying Documentation solely to enable You to use the Platform and Services for the duration of the Term (Licence).

2.2 Notwithstanding clause 2.1 above, the Agreement does not constitute a Licence of the Software Code, and nothing in the Agreement grants You any right to access or use the Software Code.

3. Term

Assessment Period

3.1 Notwithstanding any other provision contained in these Terms of Service, upon engaging the Services, You will enter into a thirty (30) day assessment period, during which EvenBetter shall, in its absolute discretion, assess and determine whether Your Data can be successfully integrated into the Platform (Assessment Period).

Your Obligations During the Assessment Period:

3.2 During the Assessment Period, You agree to do everything reasonably requested by EvenBetter to facilitate onboarding of Your Data onto the Platform. This includes providing EvenBetter with the relevant information and details in digital format as requested by EvenBetter in relation to Your Data.

Consequences of Failure to Integrate Your Data

3.3 If, at any time during the Assessment Period, EvenBetter determines, in its sole discretion, that Your Data cannot be integrated with the Platform for any reason, EvenBetter may terminate the Agreement in accordance with clause 10.1 and, in such case, and except in circumstances outlined in clause 10.3, shall refund You the Fees in accordance with clause 10.2.

No Claims for Failure to Integrate Your Data

3.4 You acknowledge and agree that should the integration of Your Data be unsuccessful and the Agreement be terminated by EvenBetter in accordance with clause 3.3, You shall have no claims, demands, or legal recourse against EvenBetter arising from the termination of the Agreement or the failure of the onboarding process.

Initial Term and Renewal Term

3.5 This Agreement will commence on the Effective Date as outlined in Your Engagement Form, and will continue for the Assessment Period and Initial Term unless terminated earlier in accordance with clause 10. The Agreement will automatically renew for sequential one (1) year periods (each a “Renewal Term”) unless either Party notifies the other Party in writing at least ninety (90) days prior to the end of the then-current Term that it wishes the Term to expire at the end of the then-current Term without the next automatic one (1) year extension taking place. For the avoidance of doubt, the Assessment Period, Initial Term along with any applicable Renewal Term (collectively referred to as the “Term”).

Non-Exclusivity

3.6 During the Term, You acknowledge and agree that the provision of the Services and the Licence shall be non-exclusive and does not restrict EvenBetter or any Affiliate of EvenBetter from contracting with any other person or entity for the distribution, performance or delivery of the Services.

4. Intellectual Property Rights & Copyright

Pre-Existing IP

4.1 A Party’s ownership of, or any right, title or interest in, any Intellectual Property Rights in an item which exists prior to the date of the Agreement will not be altered, transferred or assigned by virtue of the Agreement.

Relevant IP

4.2 You acknowledge and agree that You are not acquiring any Intellectual Property Rights (other than the Licence) in or to the Relevant IP and the Trade Marks, information or material (including Confidential Information) relating to the Platform (including the Products) and/or Services and that EvenBetter owns and retains title to all Relevant IP owned by EvenBetter (including EvenBetter Data).

4.3 You acknowledge and agree that any EvenBetter Data that is captured, collected and/or shared as a part of providing the Software:

(i) is EvenBetter's intellectual property, and You have no proprietary right, title to, or interest in EvenBetter Data pertaining to the Software; and

(ii) EvenBetter, shall, in its absolute discretion, be entitled to use EvenBetter Data for any purpose as determined by EvenBetter in its absolute discretion.

4.4 You acknowledge and agree You must not take any step to invalidate or prejudice EvenBetter’s title thereto or to any Relevant IP owned by a third party and licensed by EvenBetter to You hereunder. When using the Platform (including the Products), You must comply with the law including, without limitation, copyright laws.

4.5 You acknowledge and agree that EvenBetter has entered into the Agreement in reliance on the assumption that your utilisation of the Services will not infringe the Intellectual Property Rights of a third party.

4.6 This Licence is not a sale. Title, copyright, and any other rights in the Relevant IP will remain with EvenBetter or its Affiliates (where applicable). Unauthorised copying of the Platform (including the Products) or failure to comply with the above restrictions will result in automatic termination of the Agreement.

4.7 Nothing in the Agreement affects the ownership of Moral Rights in the Software.

Your Data

4.8 EvenBetter acknowledges and agrees that Your Data that is captured, collected and/or shared with EvenBetter during the Term is your intellectual property, and EvenBetter has no proprietary right, title to, or interest in Your Data, but You grant or will procure for EvenBetter a right to use the Your Data only for the purposes of the Agreement or as otherwise agreed between the Parties acting reasonably.

You must ensure that any information You provide to EvenBetter is anonymised and does not contain any Personal Information. In the event that Your Data will include Personal Information or that You will provide Personal Information for any reason to EvenBetter, EvenBetter will take reasonable steps to promptly remove such Personal Information from the Platform or any of its records. However, You acknowledge and agree that EvenBetter will not be responsible for any Claims arising as a consequence of any breach relating to the receipt and/or use of such Personal Information, and You agree to indemnify EvenBetter for any Loss that may be caused to EvenBetter due to any Claim related directly or indirectly to the receipt or use of such Personal Information by EvenBetter.Use of Your Data

4.9 You agree that EvenBetter shall have the right to use Your Data for the purpose of building, developing, and refining industry or sector-specific benchmarks that are integral to the Platform or Services offered under the Agreement.

4.10 EvenBetter agrees that any of Your Data that is used for benchmarking purposes will be anonymised, aggregated, and processed in a manner that ensures the confidentiality and privacy of Your Data. No personally identifiable or proprietary information will be disclosed or used in a way that could identify individuals or compromise Your Confidential Information.

4.11 EvenBetter retains all Intellectual Property Rights to any New Data, including any benchmarks developed using Your Data, provided that such benchmarks are not traceable to any Confidential Information.

4.12 Except as expressly stated in this clause 4, EvenBetter shall not use Your Data for any purpose other than the provision of the Services to You unless otherwise agreed by You in writing.

xii. New Data

4.13 During the Term and for any period thereafter in which EvenBetter is required to retain the New Data under applicable laws, You may use the New Data in connection with Your business, however, nothing in this clause grants You ownership rights of the New Data, and You acknowledge and agree that all Intellectual Property Rights in the New Data shall continue to remain with EvenBetter

Use of Trade Marks

4.14 You shall conform to the reasonable requirements of EvenBetter in relation to the use of the Trade Marks on the Platform (including the Products) and any packaging and in all related promotional and advertising materials. Any goodwill or other benefit derived as a result of any use of any of the Trade Marks shall inure to the sole benefit of EvenBetter.

4.15 You shall not, at any time during or after the Term:

(i) claim any right, title, or interest in or to, attempt to register in any jurisdiction or do anything that may adversely affect the validity or enforceability of, any of the Trade Marks; and/or

(ii) adopt, register or use in any manner whatsoever any name, mark, logo, title, expression, word, device, symbol, or combination thereof, which in any way imitates, resembles, dilutes, or is similar to any of the Trade Marks. Furthermore, at EvenBetter’s reasonable request and expense, You must do all things necessary to assist EvenBetter in protecting its Trade Marks in the Territory.

5. Obligations and Acknowledgements of the Parties

Joint Obligations

5.1 The Parties acknowledge and agree that:

(a) The Parties will jointly work together to install the Products in accordance with the specifications and timeframes to be agreed between us, acting reasonably;

(b) Both Parties agree to exercise all reasonable care and skill in performing their duties and obligations under the Agreement;

(c) Each Party shall comply with all federal, state, local and foreign laws in the Territory, constitutions, codes, statutes and ordinances of any governmental authority that may be applicable to You, your activities under the Agreement, the Platform (including the Products) and/or Services, including all applicable taxation laws and regulations affecting the activities of either Party under or in connection with the Agreement;

1. EvenBetter Obligations

5.2 EvenBetter shall:

(a) provide You and your personnel with such reasonable technical and marketing information, training and support as reasonably necessary to enable the use of the Platform (including the Products);

(b) take all reasonable steps to maintain all licenses to all Relevant IP not owned by EvenBetter necessary for the commercialisation of the Platform (including the Products) in the Territory, and if EvenBetter is unable to maintain any such licenses, EvenBetter shall take all reasonable steps to promptly develop or obtain a license to alternative intellectual property that is at least comparable to such intellectual property to enable the continued commercialisation of the Platform (including the Products) in the Territory; and

2. Your Obligations

5.3 You shall:

(a) at all times exercise reasonable care in using the Platform (including the Products) and/or Services, including proper use and maintenance in accordance with EvenBetter’s reasonable instructions, as provided from time to time;

(b) not use the Relevant IP in any way that could damage the reputation of EvenBetter or the goodwill or the Intellectual Property Rights associated with the Relevant IP or to support any activities outside of the scope of the Business;

(c) not permit any third party to use the Relevant IP and/or Documentation, without the prior written consent of EvenBetter; and

(d) unless permitted by Law or as otherwise expressly permitted in the Agreement, You, Your Affiliates and Representatives must not, nor must You, Your Affiliates and Representatives authorise any third person to:

(i) reproduce, copy, download, scrape, store, publish, transmit, transfer, communicate, distribute, disseminate, sell, rent, lend or otherwise use the Platform (including the Products), in any form or by any means;

(ii) make the Platform (including the Products) available to any person other than an authorised user;

(iii) convert material downloaded from the Software into an electronic format other than the one in which it was supplied;

(iv) modify, translate, reverse engineer, decompile, disassemble, create derivative works based on, or copy the Platform (including the Products) or otherwise attempt to discern the Source Code of the components of the Software or reproduce all or any portion of the said components;

(v) remove, alter, circumvent or tamper with any Trade Marks, copyright notices, copyright protection devices, disclaimers or other legal notices;

(vi) combine the whole or any part of the data available on the Software with any other software, data or material;

(vii) store or use any part of such data in an archival database or other searchable database except as forming part of any work product;

(viii) where applicable, remove any proprietary notices, labels or marks on the Platform (including the Products) or the Documentation; or

(ix) post the Software to any location that is electronically accessible to the general public, including: electronic bulletin boards, web sites, and FTP sites.

(e) take out and maintain insurance, including public and product liability and workers compensation insurance, with a reputable insurer in respect of your obligations under the Agreement. The limit of your insurance policies shall be commercially reasonable from the perspective of the country in which You are domiciled. A certificate of currency of such insurance must be provided to EvenBetter promptly upon request in writing.

your use of the Software is strictly limited to the use in connection with its evaluation of the Platform (including the Products) and/or Services.

6. Fees and Expenses

6.1 In consideration for the Services and Licence granted by EvenBetter to You throughout the duration of the Term, You agree to pay EvenBetter the Fees (plus GST) as set out in Your Engagement Form (Fees).

Fees

6.2 The Fees for the Initial Term will be invoiced to You prior to the Effective Date and are payable in cleared, available funds within seven (7) days from the invoice issue date.

xviii. Variation

6.3 EvenBetter may change its pricing with respect to the Platform, the Products and/or Services from time to time, subject to providing You with reasonable written notice of such change in pricing.

Payment Terms

6.4 Except for the Fees set out in clause 6.2, any payment of fees shall be made to EvenBetter within twenty-one (21) days after the invoice issue date, including for any Renewal Term.

6.5 All payments made under the Agreement shall be made by such payment method as agreed between the Parties into the account nominated by the Party to which the payment is to be made.

6.6 After the Term, You must not use or deal with the Platform (including the Products) in any way unless You have agreed to fees payable to EvenBetter for use of the Platform (including the Products) on an ongoing basis.

Additional Services

6.7 Any fees for Additional Services requested by You will be negotiated separately and agreed between the Parties in writing.

7. Suspension or modification of the Products

7.1 EvenBetter may discontinue or revise any or all aspects of the Platform (including the Products) at its sole discretion and without prior notice to take account of (for example but without limitation) changes in Law or circumstance relating to the Platform (including the Products).

7.2 EvenBetter may suspend access to the Platform (including the Products), in whole or in part, until further notice, with immediate effect:

(a) to periodically maintain or improve the Platform (including the Products) and related systems;

(b) to comply with any order, instruction or request of any government, any emergency services organisation, or other competent judicial, administrative or regulatory authority; or

(c) if EvenBetter believes that the Platform (including the Products) may be used in such a way as may constitute a breach of the Agreement.

7.3 EvenBetter shall use its best endeavours to minimise disruption to the use of the Platform.

8. Confidentiality

8.1 Each Party must:

(a) not, without the prior written consent of the other Party, use or disclose any of the other Party’s Confidential Information except as expressly permitted to do so by the Agreement or as required by law or any regulatory authority;

(b) use the other Party’s Confidential Information solely for the purposes of complying with its obligations and exercising its rights under the Agreement;

(c) implement and maintain effective security measures to prevent unauthorised use and disclosure of the other Party’s Confidential Information whilst it is in the first-mentioned Party’s possession or control; and

(d) return or, at the other Party’s option, destroy all Confidential Information of the other Party that is in the first-mentioned Party’s possession or control upon request by the other Party or the expiry, revocation or termination of the Agreement for any reason.

8.2 A Party may disclose the other Party’s Confidential Information to the first-mentioned Party’s employees or professional advisors but only to the extent that they have an actual need to know the Confidential Information in order for the first-mentioned Party to properly perform its obligations under the Agreement. The first-mentioned Party must ensure that all such employees and professional advisors:

(a) comply with the obligations in the Agreement as if each of them was a Party to the Agreement in its place; and

(b) do not do, or omit to do, anything which, if done or omitted to be done by it, would constitute a breach of the Agreement by it,

xxii. and You acknowledge and agree that You will be responsible for, and liable to, EvenBetter in respect of, the actions and omissions of any and all of the aforementioned employees and professional advisors in relation to such Confidential Information as if they were your actions or omissions.

8.3 This clause will survive the termination of the Agreement.

9. Disclaimer of Liabilities and Warranties

9.1 The Platform (including the Products) and accompanying Documentation are licensed “as is.”

9.2 Subject to clause 12, to the extent permitted by law, all implied warranties and conditions are excluded. In no event (including any act or omission on EvenBetter’s part) will EvenBetter be liable to You for any consequential, incidental or indirect damages (including damages for loss of business profits, business interruption, loss of business information and the like), whether foreseeable or unforeseeable, arising out of the use of or inability to use the Platform (including the Products), Documentation or accompanying written materials.

9.3 If any law or regulation including the Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law, confers rights and remedies on You in relation to the provision by EvenBetter of the Platform (including the Products) which cannot be excluded, restricted or modified (Non-excludable Rights), EvenBetter does not exclude any Non-excludable Rights but EvenBetter does exclude all other conditions and warranties implied by custom, law or statute.

9.4 Except as provided for by the Non-excludable Rights:

(a) the Platform (including the Products) used by You are provided without warranties of any kind, either express or implied;

(b) EvenBetter does not warrant that the Platform (including the Products) will be complete or free from all errors;

(i) failure to deliver the Services or Platform (including the Products) within a specified time period;

(ii) availability and delays in delivery of the Services or Platform (including the Products);

(iii) any failure or interruption of the Software; or

(iv) damage caused by the Software due directly or indirectly to causes beyond the control of EvenBetter including, a Force Majeure Event;

(v) maintenance and storage of data;

(vi) disclosure of or failure to protect personally identifiable data.

(d) EvenBetter does not warrant that information will continue to be available to EvenBetter to enable EvenBetter to keep the Platform (including the Products) up-to-date; and

(e) all representations are expressly excluded, and You have not relied on any representations in using the Platform (including the Products).

9.5 To the fullest extent permitted by law, EvenBetter’s liability for breach of any implied warranty or condition, which cannot be excluded, but can be limited, is limited at EvenBetter’s option to supply the Platform (including the Products) or provision of the Services again or paying for their resupply, and shall not in any event exceed the amounts actually paid by You to EvenBetter during the six (6) month period immediately preceding the event giving rise to such liability.

10. Termination

10.1 Termination During Assessment Period: If, at any time during the Assessment Period, EvenBetter determines, in its sole discretion, that Your Data cannot be onboarded to the Platform for technical reasons associated with the Platform, EvenBetter may terminate the Agreement by providing You with seven (7) days' written notice.

xxv. Termination due to Your Data being incompatible

10.2 Subject to clause 10.3, in the event of termination of the Agreement by EvenBetter pursuant to clause 10.1, EvenBetter shall provide You with a full refund of the Fees within thirty (30) days of such termination under clause 10.1.

10.3 Notwithstanding clause 10.2, You acknowledge and agree that any inability to complete the Assessment Period successfully arising from Your failure to fulfil any of Your obligations set out in clause 3.4, shall result in the forfeiture of any right to a refund of the Fees.

Termination with Notice

10.4 Either Party may, without limitation to its rights under clause 10.1, terminate the Agreement at any time by giving at least sixty (60) days written notice to the other Party.

10.5 Except where otherwise expressed provided in these Terms of Service, You acknowledge and agree that Fees are non-refundable, and should You wish to avoid automatic renewal of the Term, You must give EvenBetter notice in accordance with clause 3.5.

10.6 Notwithstanding clause 10.5, in the event of termination initiated by EvenBetter, You shall receive a refund of the proportioned Fees capped at a maximum of six (6) months.

Termination for Breach

10.7 Each Party may terminate the Agreement with immediate effect by written notice to the other Party if

(a) the other Party materially breaches the Agreement where:

(i) such breach is irremediable; or

(ii) if remediable, the other Party fails to remedy the breach within thirty (30) days of written notice by the terminating Party;

(iii) an Insolvency Event occurs in respect of the other Party; or

(iv) a Force Majeure Event preventing the performance of the Agreement continues for more than ninety (90) Business Days.

Effect of Termination

10.8 Upon termination of the Agreement for any reason, You agree to immediately cease using the Platform (including the Products)and if requested by EventBetter, You shall cease using and/or destroy any Documentation provided to you by EvenBetter.

10.9 Any termination of the Agreement shall not affect any accrued rights or liabilities of either Party, nor shall it affect any provision of the Agreement which is expressly or by implication intended to continue in force after such termination.

10.10 Any provision of these Terms of Service that ought by its nature to survive the termination of the Agreement, shall survive, as shall clause 4 (Intellectual Property Rights & Copyright); clause 8 (Confidentiality); clause 9 (Disclaimer of Liabilities and Warranties); clause 10 (Termination); clause 11 (Indemnity); clause 12 (Warranties, Exclusions and Limitation of Liability); and clause 13 (Privacy).

11. Indemnity

Indemnity for breach of Agreement

11.1 You will indemnify and hold EvenBetter harmless against all Losses that may be suffered or incurred by EvenBetter arising directly or indirectly out of, or in connection with, any breach by You of the Agreement.

Indemnity for third party claims

11.2 You will indemnify and hold EvenBetter harmless against all Losses that may be suffered or incurred by EvenBetter arising directly or indirectly out of, or in connection with, any Claim brought, or threatened to be brought, by a third party against EvenBetter alleging that the exploitation of the Relevant IP by EvenBetter constitutes an infringement of any Intellectual Property Rights of the third party, subject to clause (c) and except to the extent that such infringement arises from modification or alteration of the Relevant IP without obtaining your prior written consent.

11.3 In the event of any third party claim arising for the purposes of clause 11.2, EvenBetter shall:

(b) notify You of the third party claim in writing as soon as reasonably practicable after EvenBetter becomes aware of it; and

(i) modify, alter or substitute the infringing part of the Relevant IP at You’s own expense in order to avoid continuing infringement, or

(ii) procure the authority from the relevant third party to continue exploiting the infringing Relevant IP.

12. Warranties, Exclusions and Limitation of Liability

EvenBetter Warranties

12.1 EvenBetter, its Affiliates and its Representatives represent and warrant to You that as at the Effective Date, the following warranties are true and correct and not misleading:

(a) EvenBetter is a duly incorporated company validly existing under the laws of its jurisdiction of incorporation and has the power and authority to execute, deliver and perform its obligations under the Agreement;

(b) EvenBetter has the right to grant the licence granted under clause 2.1; and

(c) your use of the Relevant IP under the agreement will not infringe any trade mark or other intellectual property rights of any person, nor give rise to payment by You of any royalty to any third party or to any liability to pay compensation.

Your Warranties

12.2 You, your Affiliates and your Representatives represent and warrant to EvenBetter that as at the Effective Date, You are a duly incorporated company validly existing under the laws of its jurisdiction of incorporation and have the power and authority to execute, deliver and perform its obligations under the Agreement;

Limitation of Liability

12.3 Notwithstanding any provisions of the Agreement, EvenBetter shall not be liable for any special, indirect or consequential damages, loss or anticipated profits or loss of revenue, arising from the Agreement however caused whether in tort (including negligence), contract, statute, equity or otherwise.

13. Privacy

13.1 If the Platform (including the Products) and/or Services provided by EvenBetter involves the processing of Personal Information, both Parties warrant that they will comply with their respective obligations under any applicable Privacy Legislation and the terms of the Agreement.

13.2 You must indemnify and hold EvenBetter harmless against all Losses sustained, incurred or suffered by EvenBetter arising as a result of your breach of clause 13.1.

13.3 You acknowledge and agree that access to the Platform is subject to You creating and maintaining a username and password. You shall be responsible for maintaining the security of your password for the Platform and EvenBetter will not be liable for any loss or damage arising from or in connection with your failure to comply with this security obligation. You agree that EvenBetter will be entitled to assume that any person using the Platform with your username and password is You, and You will be required to notify EvenBetter immediately of any known or suspected unauthorised use of any password or any breach of security.

13.4 By accepting the Agreement, You agree to be bound by the provisions of the Privacy Policy located on the Website.

14. General

Ongoing Support

14.1 EvenBetter shall provide You with ongoing basic technical support as set out in the Engagement Form by email during normal business hours of 9:00am — 5:00pm AEST/AEDT to the contact name(s) listed in the Engagement Form or another person nominated by You in writing (Support Services).

14.2 You acknowledge and agree that any Support Services provided outside of normal business hours, including weekends and public holidays (including after-hours calls), or any advanced technical support, whether during or outside of normal business hours, shall incur additional fees as will be agreed between the Parties in writing.

Further assurances

14.3 Each Party must (at its own expense, unless otherwise provided in these Terms of Service) promptly execute and deliver all such documents and do all such things as any other Party may from time to time reasonably require for the purpose of giving full effect to the provisions of the Agreement.

Press Release

14.4 You agree that EvenBetter may share your details, including your name and your association with EvenBetter (excluding any Confidential Information), in its marketing material (including on its Website on social media, in press releases, testimonials and clippings) for the purposes of promoting EvenBetter.

Third Parties

14.5 The Agreement is made for the benefit of the Parties to it and their successors and permitted assigns and sub-licensees and is not intended to benefit, or be enforceable by, anyone else.

Relationship of the Parties

14.6 The Agreement does not create any partnership, joint venture or agency relationship between the Parties.

14.7 You may not enter into any agreements or incur any liabilities on behalf of EvenBetter without EvenBetter’s prior written consent and may not represent to any person that it has any authority to do so.

Entire Agreement

14.8 The Agreement supersedes all prior agreements, arrangements and undertakings between the Parties and constitutes the entire agreement between the Parties relating to the Software. No addition to or modification of any provision of the Agreement shall be binding upon the Parties unless made by written instrument signed by a duly authorised representative of the Party.

Severability

14.9 Should any part of the Agreement be or become invalid, that part shall be severed from the Agreement. Such invalidity shall not affect the validity of the remaining provisions of the Agreement.

Waiver

14.10 No failure, delay, relaxation or indulgence by a Party in exercising any power or right conferred upon it under the Agreement will operate as a waiver of that power or right. No single or partial exercise of any power or right precludes any other or future exercise of it, or the exercise of any other power or right under the Agreement.

Notices

14.11 All notices which are required to be given under the Agreement must be in writing and must be sent to the address of the recipient set out on the first page of the Agreement or such other address as the recipient may designate by notice given in accordance with this clause. Any notice may be delivered by hand or by prepaid letter or email. Any such notice will be deemed to have been served when delivered (if delivered by hand) or 48 hours after posting (except by prepaid letter) or (if sent by email and unless agreed otherwise), when the email enters the recipient's mail server.

Assignment

14.12 You shall not assign, whether in whole or part, the benefit of the Agreement or any rights or obligations hereunder, without the prior written consent of EvenBetter.

Variation

14.13 No variation of the Agreement will be effective unless in writing and signed by both Parties.

Counterparts

14.14 The Agreement shall be executed in counterparts by the respective Parties, each of which, when so executed, shall be deemed to be an original, all of which, taken together, shall constitute one and the same Agreement, provided the Agreement shall be of no force and effect until the counterparts are exchanged.

Electronic exchange

14.15 Delivery of an executed counterpart of the Agreement by email in PDF or other image format, will be equally effective as delivery of an original signed hard copy of that counterpart.

Dispute Resolution

14.16 The Parties agree:

(a) to attempt in good faith to resolve any dispute between them in connection with any matter arising out of the Agreement;

(b) any agreement reached between the Parties must be reduced to writing and will be binding on the Parties;

(c) where a dispute cannot be resolved informally as between the Parties, and a period of ten (10) Business Days has elapsed, the Parties must seek to agree on the procedural rules and timetable for resolving the dispute through mediation; and

(d) such mediation is to occur by the appointment of a suitable mediator appointed by the Parties or, in the absence of agreement, a mediator appointed by the New South Wales Bar Association or any entity which replaces it.

Governing Law

14.17 The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws applicable in New South Wales, Australia, and the Parties agree to submit to the exclusive jurisdiction of the courts of New South Wales.

Definitions and interpretation

Definitions

1.1 In the Agreement, unless the context or subject matter otherwise requires:

Agreement means the Engagement Form signed between You and EvenBetter and these Terms of Service.

Additional Services means any additional services that EvenBetter may offer You during the Term outside the scope of the Services, which You may wish to purchase from EvenBetter (but is not obliged to do so).

Affiliate means in relation to a Party, that Party, or another company if that other company:

(a) holds a majority of the voting rights in it; or

(b) is a member of it and has the right to appoint or remove a majority of its board of director; or

(c) is a member of it and controls alone, pursuant to an agreement with other members, a majority of the voting rights in it; or

(d) or if it is a subsidiary of a company that is itself a subsidiary of that other company.

Business means the business of operating, marketing, promoting, selling and maintaining the Platform (including the Products) and/or the Services.

Business Day means a day (other than a Saturday, Sunday or public holiday) when banks in Sydney, New South Wales are open for business.

Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature whatsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, under statute or otherwise.

Confidential Information means information of every kind:

(b) which includes, but is not limited to, the Platform, the Products, the Services, EvenBetter Data, Your Data, strategies, forecasts, projects, plans, documents and financial information of a Party including marketing information, computer records, software, trade secrets, drawings, designs, plans, concepts not reduced to product form and all other documents, records and information of a Party which is of a confidential nature, including past, current or future affairs of either Party and which, from its nature and content is or would reasonably be expected to be confidential; and

(i) is disclosed in writing, orally or by any other means by that Party or by any person on that Party’s behalf to the Party or an employee, officer or agent of the other Party; or

(ii) comes to the knowledge of the other Party or an employee, officer or agent of the other Party by any means,

(d) but does not include information which is or becomes generally available to the public (other than as a result of the wrongful disclosure by a Party or any Affiliate of the Party).

Corporations Act means the Corporations Act 2001 (Cth).

Documentation means any operating manuals, training materials, user guides, technical documentation, brochures, instructional material, advertising literature, functional and technical drawings, videos, online tutorials, templates, tools, procedures, diagrams and such other materials provided to You by EvenBetter from time to time to be used by You in marketing and/or utilising the Platform or otherwise to assist You in accomplishing the purposes of the Agreement.

Effective Date means the date set out in the relevant Engagement Form, being the first day of either the Assessment Period (if applicable) or the first day of the Initial Term (if Assessment Period is not applicable).

Engagement Form means a document outlining the key terms of the engagement between You and EvenBetter and signed by both Parties.

EvenBetter Data means any and all data relating to the Platform (including the Products) and/or Services provided to You by EvenBetter, or that becomes available to You as a consequence of its use of the Platform (including the Products) and/or Services, including data embedded in the Products, New Data, images acquired, analytics, metrics and reports or any other insights derived by using the Platform (including the Products) and/or Services, including sales data.

Fees means the fees payable by You for the Services, detailed in the relevant Engagement Form, and on the terms specified in clause 6.

Force Majeure Event means any circumstance not within a Party’s reasonable control including, without limitation:

(a) acts of God, flood, storm, drought, earthquake or other natural disaster;

(b) epidemic or pandemic, including any industrial action or circumstances where there is Government enforced prohibition due to COVID-19 or any other pandemic or epidemic restricts the Parties from fulfilling their obligations of the Agreement;

(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;

(d) nuclear, chemical or biological contamination or sonic boom;

(e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; and

(f) collapse of buildings, breakdown of plant or machinery, fire, explosion or accident.

GST has the same meaning given to that expression in the GST Law.

GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Insolvency Event means any of the following:

(a) a person is or states that the person is unable to pay from the person's own money all the person's debts as and when they become due and payable;

(b) a person is taken or must be presumed to be insolvent or unable to pay the person's debts under any applicable legislation;

(c) an application or order is made for the winding up or dissolution or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of a corporation;

(d) an administrator, provisional liquidator, liquidator or person having a similar or analogous function under the laws of any relevant jurisdiction is appointed in respect of a corporation or any action is taken to appoint any such person and the action is not stayed, withdrawn or dismissed within seven (7) days;

(e) a controller or analogous person is appointed in respect of any property of a person;

(f) a corporation is deregistered under the Corporations Act 2001 (Cth) or notice of its proposed deregistration is given to the corporation;

(g) a distress, attachment or execution is levied or becomes enforceable against any property of a person;

(h) a person enters into or takes any action to enter into an arrangement (including a scheme of arrangement or deed of company arrangement), composition or compromise with, or assignment for the benefit of, all or any class of the person's creditors or members or a moratorium involving any of them; or

(i) anything analogous to or of a similar effect to anything described above under the law of any relevant jurisdiction occurs in respect of a person.

Intellectual Property Rights means the registered trademarks, designs, patents and copyrights and any and all intellectual and industrial property rights throughout the world, whether vested or contingent, including rights of any kind (whether registered or unregistered) in or relating to:

(a) inventions, technological innovations, discoveries and novel designs, protected formulae, formulations, trade secrets, recipes, processes, know-how, operating systems, whether or not registered or registrable as patents, innovation patents (or any similar or analogous rights) or designs, including developments or improvements of equipment, technology, business methods or techniques, illustrations, photographs;

(b) literary works, artistic works and any other works and subject matter in which copyright (including future copyright and rights in the nature of or analogous to copyright) may, or may upon creation of the works and subject matter, subsist anywhere in the world;

(c) trade marks (including the Trade Marks) and service marks, including goodwill in the business concerned in the relevant goods and/or services; and

(d) trade, business, company names or internet domain names,

irrespective of when or where such thing is created or developed.

Law includes:

(a) any treaty, statute, regulation, by-law, ordinance or subordinate legislation in force from time to time;

(b) the common law and the law of equity;

(d) any applicable industry code, policy or standard, in each case enforceable by law; and

(d) any applicable direction, policy, rule or order that is given in writing by a Regulator, in each case enforceable by law.

Licence means the licence granted in clause 2.1.

Losses means any loss, damage, debt, cost, charge, expense, fine, outgoing, penalty, diminution in value, deficiency or other liability of any kind or character (including legal and other professional fees and expenses on a full indemnity basis) that a Party pays, suffers or incurs or is liable for, including all:

(a) liabilities on account of tax;

(b) interest and other amounts payable to third Parties;

(c) legal and other professional fees and expenses (on a full indemnity basis) and other costs incurred in connection with investigating, defending or settling any Claim, whether or not resulting in any liability; and

(d) all amounts paid in settlement of any Claim.

Media means the media on which the Software is recorded or printed.

Moral Right means:

(a) a right of attribution of authorship;

(b) a right not to have authorship falsely attributed;

(d) a right of a similar nature,

which is conferred by statute, and which exists or comes to exist anywhere in the world, in a deliverable form comprised within the Agreement.

New Data means any information generated through the use of the Platform that is created or derived from the use of Your Data.

Parties means EvenBetter and You.

Personal Information means any information relating to an individual; who can be identified directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person or the equivalent or corresponding definition under any applicable Privacy Legislation.

Platform means the platform owned by EvenBetter containing the Software, that will be licensed to You pursuant to the terms of the Agreement.

Privacy Legislation means the Privacy Act 1988 (Cth) and any applicable analogous legislation in any other jurisdiction from time to time.

Products means the Software and the Documentation and any other products that may be introduced by EvenBetter from time to time to be utilised via the Platform.

Relevant IP means all Intellectual Property Rights in the Platform (including the Products), Services, EvenBetter Data and any related documentation or information provided by EvenBetter in connection with the Platform, (including the Products), the Services and the Agreement.

Representatives means, in respect of a person (including EvenBetter and You), the employees, officers, directors, consultants, agents and professional advisers of that person; and “Representative” shall have the same meaning.

Services means the services detailed in the Engagement Form signed by You.

Software means EvenBetter’s proprietary software included in the Relevant IP and includes, systems and updates, mathematical codes, binary or source code, object code, EvenBetter Data, programs, routines and other functions associated with the Business, including data management, cloud-based data, analytics outputs, operating systems, software patches, updates, fixes, add-on components, and/or web services.

Software Code means the Software code in human-readable form or any part of the Software code in human-readable form, including any files, data or code compiled to create the Software or decompiled from the Software, regardless of the storage format.

Term means the term prescribed in clause 3.

Territory means Australia together with any other countries or regions that the Parties agree shall be included in the Territory from time to time by agreement in writing.

Trade Marks means trademarks, trade names, logos, design marks, service marks, service names, trade dress, and brand names of EvenBetter.

Website means EvenBetter’s website, which is located via the following domain https://www.EvenBetter.ai/.

You means the party that entered into the Engagement Form with EvenBetter, including any individual, entity or firm authorised to represent such party (as applicable), and ‘You’ or ‘your’ shall have the same meaning.

Your Data means any data or information that You would otherwise be able to access without using the Platform (including the Products) and/or Services, and which does not include EvenBetter Data.

Interpretation

1.2 In the interpretation of the Agreement, unless the context or subject matter otherwise requires:

(a) the singular includes the plural and vice-versa;

(b) words importing a gender include other genders;

(d) other grammatical forms of defined words or expressions have corresponding meanings;

(e) headings and the table of contents are used for convenience only and are to be disregarded in the interpretation of the Agreement;

(f) each clause or sub-clause in a list is to be read independently from the others in the list; and

(g) a reference to:

(i) the Agreement includes the Engagement Form, all Schedules, exhibits and annexures to the Agreement;

(ii) a court is to an Australian court;

(iii) writing includes printing, typing, facsimile and other means of representing or reproducing words, figures, drawings or symbols in a visible and tangible form, in English;

(iv) any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinated legislation issued or made under, that legislation or legislative provision;

(v) a document or agreement includes a reference to that document or agreement as novated, altered or replaced from time to time;

(vi) natural persons includes corporations, trusts, associations, partnerships, bodies corporate, unincorporated associations, authorities and other legal entities, and where necessary, includes successor bodies;

(vii) any Party includes that Party's executors, administrators, substitutes, successors and permitted assigns;

(viii) a time or a date is a reference to the time and date in Sydney, New South Wales (unless otherwise agreed by the Parties in writing);

(ix) a day, month or year is relevantly to a calendar day, calendar month or calendar year;

(x) $, AUD or dollars is to the lawful currency of the Commonwealth of Australia.