INTERPRETATION

The definitions and rules of interpretation in this clause apply in this agreement and the Services Agreement.

Application:  the product applications provided by Kepler Analytics to the Client as part of the Services.

Authorised Users: those employees, agents and independent contractors of the Client who are authorised by the Client with the consent of Kepler Analytics to use the Services and the Documentation, as further described in clause 2.2(b).

Business Day: any day which is not a Saturday, Sunday or public holiday in Victoria, Australia.

Change of Control: the direct or indirect acquisition of either the majority of the voting stock, or of all, or substantially all, of the assets, of a party by another entity in a single transaction or a series of transactions.

Client Data: the data aggregated as a result of the use of the Services by Kepler Analytics on the Client’s behalf.

Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.5.

Documentation: the document made available to the Client by Kepler Analytics from time to time which sets out a description of the Services and the user instructions for the Services.

Execution Date: the date the last party signs the Services Agreement.

Fees: the Fees payable by the Client to Kepler Analytics for the User Subscription, as set out in the Schedule.

Force Majeure Event: strikes, lock-outs or other industrial disputes (whether involving the workforce of Kepler Analytics or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Kepler Analytics’ or sub-contractors.

Normal Business Hours: 8.00 am to 5.00 pm local Australia Eastern Standard Time, each Business Day.

Renewal Period: the period described in clause 15.1.

Services: the services provided by Kepler Analytics to the Client detailed in the Services Agreement and delivered pursuant to the terms of this document.

Services Agreement: means the agreement between the Client and Kepler Analytics which details, amongst other things:

(a) the commencement date of the provision of the Services;

(b) the term of the provision of the Services;

(c) the Services to be delivered;

(d) the Fees payable by the Client to Kepler Analytics;

(e) any special conditions which amend the either these terms or the Services Agreement.

Term: the term that Kepler Analytics will provide the Services to the Client as set out in the Services Agreement.

User Subscription: the user subscription purchased by the Client pursuant to clause 8.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this agreement.

Virus: any thing or device (including any Application, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer Application, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.

1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.

1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5 Words in the singular shall include the plural and vice versa.

1.6 A reference to one gender shall include a reference to the other genders.

1.7 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.8 A reference to writing or written includes e-mail.

1.9 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.

2. USER SUBSCRIPTIONS

2.1 Subject to clause 8.1, the restrictions set out in this clause 2 and the other terms and conditions of this agreement, Kepler Analytics grants to the Client a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Term solely for the Client’s internal business operations.

2.2 In relation to the Authorised Users, the Client undertakes that:

(a) each Authorised User shall keep a secure password for the use of the Services, that such password shall be changed no less frequently than every 6 months and that each Authorised User shall keep their password confidential;

(b) it shall maintain a written, up to date list of current Authorised Users and provide such list to Kepler Analytics within 5 Business Days of Kepler Analytics’ written request at any time or times;

(c) it shall permit Kepler Analytics to audit the Services in order to establish the name and password of each Authorised User. Such audit may be conducted no more than once per quarter, at Kepler Analytics’ expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Client’s normal conduct of business;

(d) if any of the audits referred to in clause 2.2(c) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Kepler Analytics’ other rights, the Client shall promptly disable such passwords and Kepler Analytics shall not issue any new passwords to any such individual.

2.3 The Client must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services to other users of the Services.

2.4 The Client shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:

(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

(b) facilitates illegal activity;

(c) depicts sexually explicit images;

(d) promotes unlawful violence;

(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or

(f) causes damage or injury to any person or property;

and Kepler Analytics reserves the right, without liability to the Client, to disable the Client’s access to any material that breaches the provisions of this clause.

2.5 The Client shall not:

(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:

(i) and except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Application and/or Documentation (as applicable) in any form or media or by any means; or

(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Application; or

(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or

(c) use the Services and/or Documentation to provide services to third parties; or

(d) subject to clause 20.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or

(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; and

2.6 The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Kepler Analytics.

2.7 The rights provided under this clause 2 are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client without the prior written consent of Kepler Analytics.

2.8 For the avoidance of doubt, the Client has no right to access the code (including object code, intermediate code and source code) of the Services, either during or after the Term.

3. SERVICES

3.1 Kepler Analytics shall, during the Term, provide the Services and make available the Documentation to the Client on and subject to the terms of this agreement.

4. CLIENT DATA

4.1 The Client hereby grants to Kepler Analytics a non-exclusive licence to copy, reproduce, store, mine, distribute, publish, export, adapt, edit and translate the Client Data to the extent reasonably required for the performance of Kepler Analytics’ obligations and the exercise of Kepler Analytics’ rights under this Agreement including the right to analyse, aggregate and publish reports of aggregated but de-identified Client Data alone or with other data for the Client and for other clients and to allow Kepler Analytics to improve the delivery of the Services.

4.2 The Client also grants to Kepler Analytics the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of Kepler Analytics’ obligations and the exercise of Kepler Analytics’ rights under this Agreement, subject always to any express restrictions elsewhere in this Agreement.

4.3 The Client warrants to Kepler Analytics that the Client Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.

4.4 Each party shall comply with the Data Protection Laws with respect to the processing of the Client Data where that data contains personal information.

4.5 The Client shall own all rights, title and interest in and to all of the Client Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Data.

4.6 Kepler Analytics shall use accepted industry standards for the retention and archiving of Client Data. In the event of any loss or damage to Client Data, the Client’s sole and exclusive remedy shall be for Kepler Analytics to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by Kepler Analytics. Kepler Analytics shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party (except those third parties sub-contracted by Kepler Analytics to perform services related to Client Data maintenance and back-up).

4.7 Kepler Analytics shall, in providing the Services, comply with its Privacy Policy relating to the privacy and security of the Client Data, as such document may be amended from time to time by Kepler Analytics in its sole discretion.

4.8 If Kepler Analytics processes any personal data on the Client’s behalf when performing its obligations under this agreement, the parties record their intention that the Client shall be the data controller and Kepler Analytics shall be a data processor and in any such case:

(a) the Client acknowledges and agrees that the personal data may be transferred or stored outside the country where the Client and the Authorised Users are located in order to provide the Services and Kepler Analytics’ other obligations under this agreement;

(b) the Client shall ensure that the Client is entitled to transfer the relevant personal data to Kepler Analytics so that Kepler Analytics may lawfully use, process and transfer the personal data in accordance with this agreement on the Client’s behalf;

(c) the Client shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;

(d) Kepler Analytics shall process the personal data only in accordance with the terms of this agreement and any lawful instructions reasonably given by the Client from time to time; and

(e) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

5. THIRD PARTY KEPLER ANALYTICS

The Client acknowledges that Kepler Analytics engages and uses the services of a third-party for storage and security of the Client Data. Kepler Analytics makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party product, or any transactions completed, and any contract entered into by Kepler Analytics, with any such third party. Kepler Analytics recommends that the Client refers to the third party’s website terms and conditions and privacy policy prior to entering into this agreement. Kepler Analytics does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

6. KEPLER ANALYTICS’ OBLIGATIONS

6.1 Kepler Analytics undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.

6.2 The undertaking at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Kepler Analytics’ Documentation, instructions, or modification or alteration of the Services by any party other than Kepler Analytics or Kepler Analytics’ duly authorised contractors or agents. If the Services does not conform with the foregoing undertaking, Kepler Analytics will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Client’s sole and exclusive remedy for any breach of the undertaking set out in clause 6.1. Notwithstanding the foregoing, Kepler Analytics:

(a) does not warrant that the Client’s use of the Services will be uninterrupted or error-free; nor that the Services, Documentation and/or the information obtained by the Client through the Services will meet the Client’s requirements; and

(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

6.3 This agreement shall not prevent Kepler Analytics from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, Services and/or services which are similar to those provided under this agreement.

7. CLIENT’S OBLIGATIONS

7.1 The Client shall:

(a) provide Kepler Analytics with:

(i) all necessary co-operation in relation to this Agreement; and

(ii) all necessary access to such information as may be required by Kepler Analytics;

in order to provide the Services, including but not limited to Client Data, security access information and configuration services;

(b) comply with all applicable laws and regulations with respect to its activities under this agreement;

(c) carry out all other Client responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Client’s provision of such assistance as agreed by the parties, Kepler Analytics may adjust any agreed timetable or delivery schedule as reasonably necessary;

(d) ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;

(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Kepler Analytics, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;

(f) ensure that its network and systems comply with the relevant specifications provided by Kepler Analytics from time to time; and

(g) be solely responsible for procuring and maintaining its premises network to enable the Services to operate, procuring and maintaining its network connections and telecommunications links from its systems to Kepler Analytics’ data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet.

8. CHARGES AND PAYMENT

8.1 The Client shall pay the Fees to Kepler Analytics for the User Subscription in accordance with this clause 8 and the Service Agreement.

8.2 The Client shall provide to Kepler Analytics before the Commencement Date, valid, up-to-date and complete contact and billing details (which it shall keep up-to-date) and, if the Client provides its approved purchase order information to Kepler Analytics, Kepler Analytics shall invoice the Client at the end of each calendar month for the Fees and the Client shall pay each invoice within the time period stated on the invoice.

8.3 If Kepler Analytics has not received payment within 7 days after the due date, and without prejudice to any other rights and remedies of Kepler Analytics Kepler Analytics may, without liability to the Client, disable the Client’s password, account and access to all or part of the Services and Kepler Analytics shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

8.4 All amounts and fees stated or referred to in this agreement:

(a) shall be payable in AUD;

(b) are, subject to clause 14.4(b), non-cancellable and non-refundable;

(c) are exclusive of GST, which shall be added to Kepler Analytics’ invoice(s) at the appropriate rate.

9. MAINTENANCE SERVICES

9.1 Kepler Analytics shall undertake Maintenance Services during the Term.

9.2 Kepler Analytics shall where practicable give to the Client reasonable prior notice of scheduled Maintenance Services that are likely to affect the availability of the Services or are likely to have a material negative impact upon the Services, without prejudice to Kepler Analytics’ other notice obligations under this main body of this Agreement.

9.3 Kepler Analytics shall give to the Client reasonable prior written notice of the application of an Upgrade to the Services.

9.4 Kepler Analytics shall give to the Client notice of the application of any security Update to the Services and reasonable prior written notice of the application of any non-security Update to the Services.

9.5 Kepler Analytics may suspend the provision of the Maintenance Services or an Upgrade if any amount due to be paid by the Client to Kepler Analytics under this Agreement is overdue, and Kepler Analytics has given to the Client at least 7 days’ written notice, following the amount becoming overdue, of its intention to cease providing Maintenance Services or an Upgrade.

10. PROPRIETARY RIGHTS

10.1 The Client acknowledges and agrees that Kepler Analytics and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this agreement does not grant the Client any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.

10.2 Kepler Analytics confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.

10.3 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from Kepler Analytics to the Client, or from the Client to Kepler Analytics.

11. CONFIDENTIALITY

11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:

(a) is or becomes publicly known other than through any act or omission of the receiving party;

(b) was in the other party’s lawful possession before the disclosure;

(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;

(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or

(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

11.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.

11.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.

11.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

11.5 The Client acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Kepler Analytics’ Confidential Information.

11.6 Kepler Analytics acknowledges that the Client Data is the Confidential Information of the Client.

11.7 This clause 11 shall survive termination of this agreement, however arising.

12. INDEMNITY

12.1 The Client shall defend, indemnify and hold harmless Kepler Analytics against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Client’s use of the Services and/or Documentation, provided that:

(a) the Client is given prompt notice of any such claim;

(b) Kepler Analytics provides reasonable co-operation to the Client in the defence and settlement of such claim, at the Client’s expense; and

(c) the Client is given sole authority to defend or settle the claim.

121.2 In no event shall Kepler Analytics, its employees, agents and sub-contractors be liable to the Client to the extent that the alleged infringement is based on:

(a) a modification of the Services or Documentation by anyone other than Kepler Analytics; or

(b) the Client’s use of the Services or Documentation in a manner contrary to the instructions given to the Client by Kepler Analytics; or

(c) the Client’s use of the Services or Documentation after notice of the alleged or actual infringement from Kepler Analytics or any appropriate authority.

12.3 The foregoing states the Client’s sole and exclusive rights and remedies, and Kepler Analytics’ (including Kepler Analytics’ employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

13. ACKNOWLEDGEMENTS AND WARRANTY LIMITATIONS

13.1 The Client acknowledges that a complex platform like the one provided under this Agreement is never wholly free from defects, errors and bugs; and subject to the other provisions of this agreement, Kepler Analytics gives no warranty or representation that the Services will be wholly free from defects, errors and bugs.

13.2 The Client acknowledges that complex Application is never entirely free from security vulnerabilities; and subject to the other provisions of this agreement, Kepler Analytics gives no warranty or representation that the Services will be entirely secure.

13.3 The Client acknowledges that the Services are designed to be compatible only with that Application and those systems specified as compatible by Kepler Analytics from time to time; and Kepler Analytics does not warrant or represent that the Services will be compatible with any other Application or systems.

13.4 The Client acknowledges that Kepler Analytics will not provide any financial, accountancy or taxation advice under this agreement or in relation to the Services; and, except to the extent expressly provided otherwise in this agreement, Kepler Analytics does not warrant or represent that the Services or the use of the Services by the Client will not give rise to any legal liability on the part of the Client or any other person.

14. LIMITATION OF LIABILITY

14.1 This clause 14 sets out the entire financial liability of Kepler Analytics (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of:

(a) the Client assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Client, and for conclusions drawn from such use. Kepler Analytics shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Kepler Analytics by the Client in connection with the Services, or any actions taken by Kepler Analytics at the Client’s direction;

(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and

(c) the Services and the Documentation are provided to the Client on an “as is” basis.

14.3 Nothing in this agreement will:

(a) limit or exclude any liability for death or personal injury resulting from negligence;

(b) limit or exclude any liability for fraud or fraudulent misrepresentation;

(c) limit any liabilities in any way that is not permitted under applicable law; or

(d) exclude any liabilities that may not be excluded under applicable law.

14.4 Subject to clause 14.2 and clause 14.3:

(a) Kepler Analytics shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and

(b) Kepler Analytics’ total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Fees paid for the User Subscription during the 1 month immediately preceding the date on which the claim arose.

14.5 If Kepler Analytics reasonably determines, or any third party alleges, that the use of the Services by the Client in accordance with this Agreement infringes any person’s intellectual property rights, Kepler Analytics may:

(a) modify the Services in such a way that it no longer infringes the relevant intellectual property rights; or

(b) suspend the use of the Services until the Services no longer infringes the relevant intellectual property rights or

(c) terminate this agreement.

14.6 Neither party shall be liable to the other party in respect of any:

(a) losses arising out of a Force Majeure Event;

(b) loss of profits or anticipated savings;

(c) loss of revenue or income;

(d) loss of use or production;

(e) loss of business, contracts or opportunities;

(f) loss or corruption of any data, database or Application;

(g) special, indirect or consequential loss or damage;

15. TERM AND TERMINATION

15.1 This agreement shall, unless otherwise terminated as provided in this clause 15, commence on the date specified in the Services Agreement and shall continue for the Term.

15.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other if:

(a) the other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or

(b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or

(c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors; or

(d) a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or

(e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or

(f) the other party ceases, or threatens to cease, to trade; or

(g) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.

15.3 On termination of this agreement for any reason:

(a) the Client must pay to Kepler Analytics any money owing to Kepler Analytics before the termination of this agreement;

(b) all licences granted under this agreement shall immediately terminate;

(c) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;

(d) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.

16. FORCE MAJEURE

16.1 Kepler Analytics shall have no liability to the Client under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation:

(a) a Force Majeure Event;

(b) a fault or failure of the internet or any public telecommunications network;

(c) a fault or failure of the Client’s computer systems or networks;

(d) any breach by the Client of this Agreement; or

(e) scheduled maintenance carried out in accordance with this Agreement.

16.2 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

16.3 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this agreement, must:

(a) promptly notify the other; and

(b) inform the other of the period for which it is estimated that such failure or delay will continue.

16.4 A party whose performance of its obligations under this agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

17. WAIVER

17.1 A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.

17.2 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.

18. SEVERANCE

18.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

18.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

19. ENTIRE AGREEMENT

19.1 This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

19.2 Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.

20. ASSIGNMENT

20.1 The Client shall not, without the prior written consent of Kepler Analytics, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

20.2 Kepler Analytics may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

21. NO PARTNERSHIP OR AGENCY

21.1 Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

22. NOTICES

22.1 Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by email to the other party’s email address as set out in this agreement.

22.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission.

23. GOVERNING LAW AND JURISDICTION

23.1 This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of Victoria, Australia.

23.2 The parties irrevocably agree that the courts of Victoria, Australia have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).