General Terms - Vaxtra

GENERAL TERMS

Outsourcing solutions are provided by Vaxtra group members with headquarters as Vaxtra Pty Ld ACN 154 337 970, pursuant to the General Terms set out below. We may revise these terms and conditions at any time by updating this posting. You should check this Website from time to time to review the then current terms and conditions, because they are binding on you.

1 DEFINITIONS

Aggregated Data means anonymously aggregated information or data (including statistical information and data sets relating to customer usage profiles, purchasing behaviours and patterns) derived or generated in connection with the provision of the Services.

Agreement means the General Terms, applicable Product Terms and the Statement of Work;

Business Day means a day that is not a Saturday, Sunday, national public holiday or national bank holiday in Victoria Australia;

Client is the party to whom Vaxtra is supplying the Services;

Client Materials means:

(a) all text, data, images, documents, reports, logos, trademarks, copy, electronic files, proofs, designs, product descriptions and other materials, whether electronic or in hard copy form, submitted to Vaxtra by or on behalf of the Client for the purposes of providing the Services, and

(b) any information or data that is imported by or on behalf of the Client in connection with the provision of the Services or the Client’s use of technology services hosted by or on behalf of Vaxtra;

Confidential Information means any information of or relating to the business, data, systems, software and information technology systems, finances, operations, customers, fees or pricing, properties, assets or affairs of a party or a Related Body Corporate which is or has been disclosed by a party to the other party or learnt or acquired by the other party during the provision of the Services, whether orally, electronically or in writing;

Fees means the service fees payable by the Client as may be specified in the SOW;

Force Majeure means any event or circumstances beyond a party’s control, including: acts of God, strikes, lockouts, third party service provider failures, telecommunications or equipment failures, network faults, power or water outages, unscheduled maintenance and repair or legislative changes;

General Terms means these general terms which are applicable to all of the Services being supplied;

Intellectual Property includes copyright, and all rights conferred under statute, common law or equity in relation to inventions (including patents), trademarks, designs, circuit layouts, domain names, rights in databases, confidential information, trade secrets, know-how, and all other proprietary rights, whether registered or unregistered, and all equivalent rights and forms of protection anywhere in the world, together with all right, interest or licence in or to any of the foregoing;

Law means any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in in the jurisdiction in which the Services are being supplied;

Master Services Agreement (MSA) means a formal agreement executed by an authorised representative of each party setting out the terms and conditions upon which the Services will be supplied, if any;

Personal Information has the meaning as defined in the Privacy Act from time to time;

Privacy Act means the Privacy Act 1988 (Cth) and the Australian Privacy Principles contained in that Act, as amended from time to time;

Product Terms mean the unique service terms applicable to the Services being supplied, available at www.vaxtra.com or upon request;

Related Body Corporate has the meaning given to it in section 50 of the Australian Corporations Act 2001 (Cth);

Vaxtra means the Vaxtra company group member supplying the Services;

Vaxtra Affiliate means a Vaxtra Related Body Corporate or any other Vaxtra company group member specified in the Product Terms;

Services means the services and any deliverables set out in the SOW and any further services agreed in writing between the parties;

Statement of Work (SOW) means a document setting out service requirements and the commercial terms including fees and pricing, set out in a quotation, proposal, client brief, order or a statement of work, as the case may be;

Term means the term specified in the SOW, including any renewals.

2 TERMS OF SERVICE

2.1 Upon acceptance by Vaxtra of an order or the execution by both parties of an MSA, an individual contract for the supply of Services will be formed incorporating these General Term and any applicable Product Terms.

2.2 If there is any conflict of meaning between information contained in the documents which form part of the Agreement, the order of precedence will be as follows:

(a) the Statement of Work;

(b) the Product Terms;

2.3 Vaxtra may make commercially reasonable changes to the General Terms and the Product Terms (together the “Terms of Service”) from time to time. The Client will remain governed by the Terms of Service until the end of the then-current term.

3 FEES AND PRICING

3.1 In the event of an increase in the costs of providing the Services, including without limitation the imposition of a new direct or indirect tax or impost, legislative change (including changes that directly impact minimum employee entitlements and employer obligations), exchange rate fluctuations or supplier cost increase, Vaxtra reserves the right to review and request a variation to the Fees to take into account the impact of such changes.

3.2 In addition to clause 3.1, Vaxtra may review and adjust its Fees and charges (including its freight rates) for any Services, once each year on or after each anniversary of the date from which those services are first provided.

3.3 The Fees cover work set out in a SOW. Any change to the SOW including a change to:

(a) the scope, nature, location or volume of the Services; or

(b) the assumptions upon which the Fees are based;

will be addressed as a Change Request and may lead to an adjustment in the Fees.

3.4 Where an invoice is paid by credit card or an international bank transfer from or to a location other than Australia, the credit card payment will incur a 5% fee while an international bank transfer will incur a AUD$25 surcharge per transaction, unless the SOW provides otherwise.

3.5 The parties will negotiate in good faith any variation to the Fees proposed by Vaxtra pursuant to clauses 3.1 or 3.3 and in the event that agreement cannot be reached, either party may terminate the Agreement by providing the other party with 90 days written notice, unless the relevant Product Terms provide otherwise.

4 PAYMENT TERMS

4.1 The Client acknowledges and agrees that invoices must be paid to the corporate bank account of the Vaxtra group member supplying the Services unless a different Vaxtra Affiliate is stipulated in the SOW.

4.2 In consideration for the provision of the Services, subject to clause

4.3 the Client agrees to pay the Fees for the full amount invoiced and any bank fees without set off or deduction within 7 days of the date of invoice unless the relevant Product Terms provide otherwise.

4.3 If the Client disagrees with any amount claimed in an invoice, it must notify Vaxtra within 7 days of invoice receipt. The Client must pay any undisputed balance in accordance with this clause.

4.4 If an undisputed invoice is not paid when due Vaxtra may, in its sole discretion, suspend supply of the Services.

4.5 Payment terms are granted subject to the Client’s successful application for commercial credit. The Client acknowledges and agrees that in granting credit Vaxtra reserves the right to:

(a) withdraw or suspend credit at any time in its sole discretion;

(b) charge interest at the rate of 1.5% per calendar month on all overdue amounts;

(d) collect, disclose and exchange Personal Information for the purpose of assessing the credit worthiness of the Client or any Client guarantor in accordance with Vaxtra’s Credit Reporting Privacy

Policy found at www.vaxtra.com.

4.6 Sales Tax. All fees are exclusive of taxes, which Vaxtra will charge as applicable. The Client agrees to pay any taxes applicable to the Client’s use of services. The Client shall have no liability for any taxes based upon Vaxtra’s gross revenues or net income. At Vaxtra’s request, the Client will provide Vaxtra with the VAT or GST registration number under which the Client is registered in the Client’s member state. If the Client is subject to VAT or GST, all fees are exclusive of such taxes. If the Client is required to deduct or withhold any tax, the Client must pay the amount deducted or withheld as required by law and pay Vaxtra an additional amount so that Vaxtra receives payment in full as if there were no deduction or withholding.

4.7 Any credits granted to the Client are valid for a period of 6 months from the date of grant and must be used within that timeframe. Any monies held on account for the Client will be held for a period of 6 months, after which time those amounts will be converted to a credit held in favour of the Client.

5 WARRANTIES

5.1 Each of the parties warrants to the other that:

(a) it has full power and authority to enter into and perform the Agreement;

(b) it shall comply and shall ensure that its employees and agents comply, with any Law; and

Agreement.

5.2 The Client warrants that:

(a) it will not do, and it will not direct or request Vaxtra to do, anything which may breach any Law or applicable industry code;

(b) it will make any decisions and provide any approvals, data, documentation and information reasonably required by Vaxtra, promptly;

(c) it will carry out any tasks assigned to it and its agents or contractors in a timely manner and in such a way as to not delay Vaxtra in the provision of the Services;

(d) the Client Materials

(i) do not contain any matter which is obscene, defamatory, or illegal;

(ii) are not false, misleading or deceptive or likely to mislead or deceive;

(iii) are up to date, technically accurate, complete and correctly formatted for any distribution or use by Vaxtra in the provision of the Services;

(iv) are free from viruses and do not contain malware, spyware or any other code which could alter or disrupt any program, product, service or device;

(e) the use of the Client Materials by Vaxtra for the purposes of providing the Services and all matters incidental thereto will not breach any Law or infringe the Intellectual Property rights or other rights of any person or entity; and

(f) it will pay to Vaxtra any additional costs incurred by Vaxtra in converting or processing Client Materials which are not in compliance with this clause 5.2.

5.3 Vaxtra warrants that it will:

(a) use commercially reasonable endeavours to ensure that the Services are free from material defects in design, materials and workmanship and are provided substantially in accordance with any specification set out in a SOW;

(b) only store and use Client Materials:

(i) to the extent necessary to provide the Services to the Client (and any back-ups for those Services);

(ii) to the extent necessary to perform its obligations or enforce its rights under this Agreement; or

(iii) where required or authorised by Law; and

(c) implement reasonable and appropriate information security practices regarding the protection of Client Materials as required by law, including administrative, technical and physical security processes.

5.4 To the extent that the law permits and except as expressly provided in the relevant Product Terms, Vaxtra makes no other representations or warranties of any kind, express or implied, with respect to the Services.

5.5 The Client acknowledges and agrees that:

(a) Vaxtra makes no guarantee regarding the results, outcomes or profitability of any campaigns conducted by Vaxtra for or on behalf of the Client; and

(b) the Client remains liable and responsible for any loss or damage suffered or incurred by Vaxtra (including the provision of compensation to any third party carriers) in connection with Vaxtra’s use of the Client Materials in accordance with the Agreement.

6 PRIVACY

6.1 If a party is provided with, or has access to Personal Information in connection with the Services, it must comply with the Privacy Act and any other applicable law in respect of that Personal Information.

6.2 If Personal Information is provided to Vaxtra by or on behalf of the Client, then the Client:

(a) must do all things necessary, including but not limited to: (i) obtaining all appropriate consents from individuals; (ii) providing notifications to individuals; and (iii) maintaining accurate, up to date and complete records; to ensure that Vaxtra may lawfully use, process and disclose the Personal Information (and any changes made to any of them) in connection with the provision of the Services;

(b) acknowledges and agrees that except as may be required by this Agreement, Vaxtra is not required to take steps to ensure that any Personal Information has been collected in accordance with the Privacy Act;

(c) must do all things reasonably requested by Vaxtra to assist Vaxtra to comply with the Privacy Act in the course of its provision of the Services under this Agreement including: (i) assisting Vaxtra in the updating of an individual’s records in circumstances where an individual elects to “opt out” and not receive direct marketing materials and services; (ii) providing Vaxtra with access to information held by the Client in respect of an individual when the individual makes a request for such access; and (iii) providing Vaxtra with the policies and procedures the Client has put into effect pursuant to the Privacy Act if requested to do so by Vaxtra.

6.3 If Vaxtra collects Personal Information in the name of or on behalf of the Client:

(a) the Client must provide to Vaxtra such collection statements, scripts for use, privacy policies and other materials necessary to ensure compliance with the Privacy Act in the collection of such Personal Information; and

(b) the Client acknowledges and agrees that where Vaxtra is authorised or required by the Client to collect or otherwise deal with Personal Information in the name of or on behalf of the Client in connection with providing the Services, that Vaxtra does so as agent for the Client.

6.4 If Vaxtra processes any Personal Information in the name of or on behalf of the Client:

(a) the Client acknowledges and agrees that the Personal Information may be disclosed or stored outside Australia in order to provide the Services. The Client consents for Vaxtra to receive, share and disclose Personal Information arising from use of the Services with telecommunication or other providers used in conjunction with the Services, or as may be required by Law;

(b) Vaxtra shall process the Personal Information in accordance with this Agreement and any lawful instructions reasonably given by the Client from time to time; and

(c) each party shall take appropriate security and organisational measures against unauthorised or unlawful processing of the Personal Information or its accidental loss, destruction or damage.

6.5 Vaxtra’s Privacy Policy found at www.vaxtra.com will apply to any Personal Information that it collects, processes and holds.

7 INTELLECTUAL PROPERTY

Except as expressly provided:

7.1 Nothing in this Agreement conveys to either party any right, title or interest in the other party’s pre- existing Intellectual Property.

7.2 Intellectual Property in all items, information, materials, and works (including software developments and enhancements, modifications to applications or data insights) developed or produced by Vaxtra in connection with the provision of the Services will be the sole and exclusive property of Vaxtra.

7.3 Rights in Intellectual Property owned by Vaxtra remain at all times the sole and exclusive property of Vaxtra and no licence of these rights is granted to the Client except a right to use the same to the extent required for the Client’s enjoyment of the Services.

7.4 Rights in third party Intellectual Property licensed or procured by Vaxtra in connection with the provision of the Service remain at all times the sole and exclusive property of that third party and no licence of these rights is granted to the Client except a right to use the same during the Term to the extent required for the Client’s enjoyment of the Services, subject always to any third party end user terms and payment of any applicable third party licence fees.

7.5 All Intellectual Property rights in the Client Materials remain at all times the sole and exclusive property of the Client and no licence of these rights is granted to Vaxtra except for a right to use and reproduce the same for the purposes of providing the Services or as may be otherwise specified in the Agreement.

8 CONFIDENTIAL INFORMATION

8.1 Each party shall, and shall use its best endeavours to ensure that its employees and agents, keep the Confidential Information confidential and not use or disclose the Confidential Information to any person other than:

(a) in confidence to that party’s professional advisers to obtain professional advice;

(b) as may be properly required for the purpose of the provision of the Services and the performance of any obligations under the Agreement but subject to any such person being made aware of, and undertaking to comply with, the obligations in relation to the Confidential Information as set out in this Agreement;

(d) as may be required by any Law, the rules of any stock exchange or any court of competent jurisdiction; or

(e) to the extent that any part of the confidential information is in the public domain otherwise than through the breach by a party of its obligations under this clause 8.

8.2 Each party must as reasonably required by the other party, destroy or return to the other party any Confidential Information, at the requesting party’s cost.

8.3 Each party acknowledges that in the event of any alleged breach of clause 8.1 by it, damages may not be an adequate remedy and the other party will be entitled to seek equitable relief in the nature of specific performance and injunctive relief, in addition to damages.

9 LIMITATION OF LIABILITY

9.1 To the extent that any Law (including the Competition and Consumer Act 2010(Cth)) implies certain non-excludable conditions and warranties into the Agreement for the supply of goods and services, Vaxtra limits its liability in relation to the provision of the Services under the Agreement to the supplying of the Services again or the payment of the costs of having the Services supplied again, at Vaxtra’s option.

9.2 Except as otherwise provided in the Agreement, Vaxtra’s total liability for any loss or damage, whether arising in contract, tort (including negligence), under product liability legislation, under any other statute, under any indemnity or otherwise, sustained by the Client or any other person directly or indirectly from or in connection with the supply of goods or services or otherwise arising out of the Agreement shall be limited to the Fees specified in the SOW under which the loss or damage arose.

9.3 In no event shall either party be liable for any incidental, indirect, punitive, exemplary, or consequential damages or any loss of any of the following – revenue or Client’s, goodwill, bargain, anticipated savings, use of products or equipment, software, data or management time in connection with or arising out of this Agreement.

9.4 The Client acknowledges that Vaxtra does not control the transfer of data over communications facilities, including the internet, and that the Services may be subject to limitations, delays and security issues inherent in the use of such communications facilities (“service limitations”). Vaxtra is not responsible for any delays, service level failures or data breaches caused by such service limitations including: corruption, piracy or malicious third party attacks (including DDoS attacks), which are beyond the reasonable control of Vaxtra. The Client expressly waives any claim against Vaxtra for compensation, service credits, damages or loss of data arising from the service limitations and agrees their occurrence will not constitute a breach of this Agreement.

9.5 The liability of a party is reduced proportionately to the extent to which the liability is caused, or contributed to, by the other party or any other person, and each party must do what is reasonable in the circumstances to mitigate and minimise any costs, damages, expenses and/or losses incurred or suffered by it in connection with any claim under the Agreement.

9.6 The limitations of liability in this clause 9 shall not apply where prohibited by applicable law, but shall be restricted only to the minimum extent required to satisfy that law.

10 TERMINATION

10.1 Either party may terminate the Agreement without prejudice to its other remedies by notice in writing to the other (Defaulter):

(a) if the Defaulter commits a material breach of the Agreement and the Defaulter has not remedied the breach within 30 days of having been given notice in writing specifying the breach and requiring it to be remedied;

10.2 On termination of the Agreement:

(b) if the Defaulter is or becomes insolvent or bankrupt, becomes an externally-administered body corporate under the Corporations Act 2001 or steps are taken by any person towards external administration; or

(c) if any monies to be paid under the Agreement are not paid by their due date and remain unpaid for a period of 7 days after notice has been served requiring the payment default to be remedied.

(a) the Client’s right to use the Services ceases;

(b) except for Fees that are the subject of a genuine dispute notified to Vaxtra in accordance with clause 4.3, the Client must immediately pay to Vaxtra, without deduction or set off, all outstanding Fees and any other amounts payable to Vaxtra under the Agreement at the date of termination; and

(c) Vaxtra will, upon Client request and subject to clause 10.3, return any proprietary information or data of the Client (“Client Data”) generated in connection with the Services and stored on Vaxtra systems.

10.3 Vaxtra shall be entitled to recover its costs in connection with the retrieval of Client Data pursuant to clause 10.2(c), including any data conversion costs. Vaxtra will have no obligation to maintain or make available any Client Data for longer than ninety (90) days following termination and may thereafter, unless legally prohibited or otherwise specified otherwise in a Statement of Work, permanently deleted all such Client Data.

10.4 At any time prior to the termination or expiry of the Agreement, the Client may submit a written request for disengagement services and/or assistance with transitioning to a new provider. Unless these services are agreed, scoped and costed pursuant to a Change Request or a separate SOW, such services are provided in Vaxtra’s absolute discretion at Vaxtra’s then current rates and charges.

10.5 Termination of the Agreement does not affect the accrued rights or liabilities of either party.

11 FORCE MAJEURE

11.1 Neither party will be responsible for any delay, non-performance or degradation of performance of any of the obligations under the Agreement caused by or resulting from a Force Majeure, except for an obligation to make any payment. The affected party will notify the other party as soon as reasonably practicable in the case such an event causes a delay in the provision of the Services and the cause of the delay.

11.2 If a party is prevented from carrying out its obligations under the Agreement pursuant to clause 11.1 for a period of 30 days, either party may terminate the Agreement by giving 7 days’ notice to the other party, without prejudice to any of the rights of either party accrued prior to the date of termination.

12 CHANGE REQUESTS

12.1 The parties will follow the change request process described in this clause 12 to initiate and consider:

(a) new Services that are not within the scope of an SOW; or

(b) changes to the Services (including any changes to the nature or scope of the Services or to the timing or the delivery of the Services) which cannot be accommodated by another process in this Agreement, each being referred to in the Agreement as a “Change Request”.

12.2 A Change Request must

(a) contain a detailed description of the proposed change;

(b) detail the effect (if any) on the Services (including the functionality and performance of any deliverables);

(d) detail the impact to any agreed service levels; and

(e) contain a timeline for implementation of the change, including any significant milestones.

12.3 Each party will cooperate with the other party as necessary to enable the preparation of a Change Request, including by providing information, documents and details.

12.4 The Client will, within a reasonable period of time from receipt of the relevant information provided pursuant to 12.2, notify Vaxtra of its decision in respect of a Change Request including, without limitation, whether it:

(a) accepts the Change Request;

(b) wishes to renegotiate any aspect of the Change Request;

(d) does not accept the Change Request, if initiated by Vaxtra.

12.5 A party must not unreasonably refuse (directly or indirectly) any Change Request by the other party.

12.6 Neither party has any obligation to proceed with any Change Request unless and until the parties have agreed in writing on the necessary variations to the Services, the Fees, any applicable timeframes and/or any other relevant terms of the Agreement to take account of the change.

12.7 Where:

(a) the Change Request is relatively minor (in terms of cost and impact) and is fairly routine; or

(b) if agreed by the parties (agreement not to be unreasonably withheld),

a truncated change request process (acceptable to both parties) such as the issuance of an updated invoice reflecting the change by Vaxtra that is then accepted by the Client by means of making the said invoice payment may be adopted to deal with any particular Change Request.

13 DISCLOSURE

Vaxtra may be the recipient of rebates and commissions as a result of volume based incentives and preferred supplier arrangements negotiated with some of its suppliers.

14 GENERAL

14.1 Relationship. This Agreement constitutes a relationship between the Client and Vaxtra of principal and independent contractor. Without prejudice to clause 6.3(b), nothing in the Agreement shall constitute any relationship of agency, partnership or joint venture. Neither party, unless expressly stated in the Agreement, shall enter into or have authority to enter into any engagement or make any representation or warranty on behalf of or pledge the credit of or otherwise bind or oblige the other party.

14.2 Subcontracting. Vaxtra may subcontract performance of all or any of its obligations under the Agreement and may substitute or change subcontractors but remains liable at all times for performance of its obligations by each subcontractor.

14.3 Assignment. Vaxtra may assign or transfer it rights or obligations under this Agreement to a Related Body Corporate in its absolute discretion. A party may not otherwise assign or transfer its rights or obligations without the prior written consent of the other party.

14.4 Variation. This Agreement may only be varied, modified, amended or added to in writing executed by the parties in the manner that the Agreement is executed.

14.5 No Waiver. No delay by a party in exercising any right under this document will operate as a waiver of that right nor will any waiver by a party of any right under this document operate as a waiver of any other right of that party, nor will any single or partial exercise of any right preclude any further exercise of that or any other right under this document.

14.6 Counterparts. This Agreement may be executed in two counterparts which, when taken together, will constitute one single Agreement between the parties.

14.7 Severability. If any provision of the Agreement is unenforceable it will be read down so as to be enforceable or, if it cannot be so read down, the provision (or where possible, the offending part) will be severed from the Agreement without affecting the validity, legality or enforceability of the remaining provisions (or parts of those provisions) of the Agreement which will continue in effect.

14.8 Survival. The provisions of the Agreement which are capable of having effect after termination of the Agreement will remain in full force and effect following the termination of the Agreement.

14.9 Entire Agreement. This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter of the Agreement.

14.10 Notices. If either party gives or is required to give a notice to the other party under the Agreement, that notice must be in writing and hand delivered, sent by pre-paid post or emailed to the location in which the Services are being supplied.

14.11 Use of logos. Unless the Client expressly specifies otherwise, in writing, Vaxtra may use and publish the Client’s logo for marketing purposes and otherwise disclose that the Client is a customer of Vaxtra.

14.12 Aggregated Data. Vaxtra shall be permitted to use Aggregated Data for any purpose or disclose Aggregated Data to any third party. The foregoing shall not limit in any way Vaxtra’s confidentiality or privacy obligations under the Agreement.

14.13 Governing Law. This Agreement is governed by the laws of the location in which the Services are being supplied. The parties accept the exclusive jurisdiction of the courts of such jurisdiction where the Services are being supplied.