Surveys Australia Terms of Service

BACKGROUND

A. Surveys Australia is a company that provides research services including project management, questionnaire development, campaign evaluation, customer experience research, service evaluation, survey refinement, and data analysis, visualization and reporting.

B. The Company wishes to engage Surveys Australia to provide the Services specified in the Scope of Works, and Surveys Australia agrees to provide the Products and Services to the Company in accordance with this Agreement and the Scope of Works.

OPERATIVE PROVISIONS

1. Definitions and interpretation

1.1 Definitions

The following terms are defined in this Agreement:

Agreement means this agreement, including any annexures, schedules, items thereto and the Scope of Works;
Business Day means a day that is not a Saturday, Sunday a day on which banks are not open for business in Victoria, Australia;
Commencement Date means the date specified in Schedule 1 as the date that this Agreement will take effect;
Company Materials means any information, data, materials, lists or other matter provided to, or made available to, Surveys Australia in connection with this Agreement;
Confidential Information means all information and data in any form or medium relating to the Company, or Surveys Australia or its Related Bodies Corporate, whether provided, or accessible to the relevant party before or after the date of this Agreement, including without limitation:

(a) the following types of information:

(i) the Surveys Australia IP;

(ii) information relating to the design and development of surveys, reports, questionnaires and alike documents;

(iii) any information that is designated as a trade secret;

(iv) information relating to the business, operations, know how, computer technology, sales and marketing, business development; methodologies;

(v) lists of customers both current and historical and potential customers, lists of suppliers both current and historical and potential suppliers, processes or sales and marketing and business development;

(b) the terms of Surveys Australia’s engagement and this Agreement;

(d) any of the above information to the extent that it is disclosed or made available by a third party and whether it relates to current or proposed operations of Surveys Australia;

(e) information that at the time of disclosure by Surveys Australia, or a third party, is identified as being confidential;

(f) information that is in fact confidential, or which the Company knows, or ought reasonably be expected to know, is confidential to Surveys Australia or any related entity of Surveys Australia; and

(g) all other information, documentation or materials, belonging or relating to Surveys Australia, or any Related Body Corporate of Surveys Australia, that is from time to time disclosed to, possessed by or otherwise acquired by the Company;

Corporations Act means Corporations Act 2001 (Cth);
Fee has the meaning set out in Schedule 1;
Expiry Date means the date described in clause 2.1;
Fees means the fees payable for the Services as set out in amount specified in the Scope of Works or and payable to Surveys Australia for the provision of the Services, or such other amount that may be determined and agreed in writing between the Company and Surveys Australia, provided that any such changes will not be effective unless agreed to by Surveys Australia in writing;
GST means the goods and services tax payable under the GST Law;
GST Law means the definition given to that term in the A New Tax System (Goods & Services Tax) Act 1999 (Cth).
Intellectual Property includes all present and future copyright (including photographs and graphics, including drawings, designs, illustrations) and neighbouring rights, all proprietary rights in relation to inventions, registered and unregistered trade marks, Confidential Information (including trade secrets and know-how) registered designs, and the right to apply for a grant of registration of any of the foregoing;
Law means any legislation, guidelines, principles, or standards, including but not limited to privacy principles, that govern the conduct of the parties involved. This encompasses constitutional provisions, treaties, statutes, regulations, ordinances, by-laws, judgments, and rules of common law or equity, and includes these provisions as they are amended, consolidated, or replaced over time.
Materials has the meaning set out in clause 6.1;
Moral Rights means the rights conferred by Part IX of the Copyright Act 1968 (Cth) and any similar rights existing or that may come to exist anywhere in the world, including:

(a) a right of attribution of authorship;

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

(c) a right of integrity.

Project means a project as set out in the Scope of Works;
Personnel means an employee, director, officer, agent, representative, contractor or sub-contractor of a party;
Related Body Corporate has the same meaning as it has in the Corporations Act;
Scope of Works has the meaning set out in clause 3.2
Services means the services provided or to be provided by Surveys Australia as specified in the Scope of Works;
Surveys Australia IP means all Intellectual Property in the Services and Materials owned by Surveys Australia, including all plans, questionnaires, research, evaluations, surveys, reports, trade marks, whether registered or unregistered, in relation to the Services and Materials.
Term has the meaning set out in clause 2.1;
Termination Date means the date of termination of this Agreement in accordance with its terms or as a result of the Agreement being terminated on such other terms as are mutually agreed between the parties; and
Works Form has the meaning as set out in clause 3.2.

1.2 Interpretation

In this Agreement the following rules of interpretation apply unless the contrary intention appears:

(a) Headings are for convenience only and do not affect the interpretation of this Agreement.

(b) The singular includes the plural and vice versa, and any gender includes any other gender.

(c) Where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

(d) The words “such as”, “including”, “particularly” and similar expressions are not used as nor are intended to be interpreted as words of limitation.

(e) When the day on which something must be done is not a Business Day, that thing must be done on the following Business Day.

(f) No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or any part of it.

(g) Any reference in this Agreement to a statutory provision shall:

(i) include any subordinate legislation made from time to time under that provision;

(ii) be interpreted to mean references to those provisions as respectively amended or re-enacted prior to but not after the date of this Agreement;

(iii) include that provision as from time to time modified or re-enacted provided that in the case of modifications or re-enactments made after the date of this Agreement the same shall not have effected a substantive change to that provision.

(h) A reference to:

(i) a person includes a natural person, partnership, joint venture, government or governmental agency, trust, estate, association, corporation or other body corporate, and any other legal entity;

(ii) a thing (including but not limited to a chose in action or other right) includes a part of that thing;

(iii) a party includes its successors and permitted assigns;

(iv) a document includes all amendments or supplements to that document;

(v) a clause, term, party, schedule or attachment is a reference to a clause or term of, or party, schedule or attachment to this Agreement;

(vi) a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by-law, judgment, rule of common law or equity and is a reference to that law as amended, consolidated or replaced;

(vii) an agreement other than this Agreement includes an undertaking, or legally enforceable arrangement or understanding whether or not in writing; and

(viii) a monetary amount is in Australian dollars.

2. Term

2.1 This Agreement commences on the Commencement Date and the Expiry Date will be the later of:

(a) the End Date; and the

(b) Project Expiry Date,

unless terminated earlier in accordance with this Agreement (Term).

2.2 If the Company continues to engage the services of Surveys Australia after the expiry of this Agreement or if a Project Expiry Date extends beyond the End Date, without providing a formal notice of extension, then this Agreement will continue:

(a) until the Project Expiry Date; and then

(b) on a month to month basis and may be terminated by either party providing one (1) months’ written notice to the other, with the notice period commencing from the date of receipt of the notice.

3. Supply of Services

3.1 The Company appoints Surveys Australia to provide the Services on the terms and conditions of this Agreement and, in consideration of the Fee, Surveys Australia accepts the appointment as a supplier to the Company.

3.2 Scope of Works

(a) In relation to each Project, the Company will complete the works form as set out on Surveys Australia’s website, the completion and submission of which will be deemed as acceptance by the Company of the terms and conditions of this Agreement (Works Form).

(b) The Surveys Australia quote tool (Tool) will automatically generate an estimated quote based on the completed Works Form (Quote).

(c) The Quote amount will depend on various factors as set out in the Works Form, including without limitation the size of the Project, nature of research services required, sample or population size, nature of sample or population, and complexity of questionnaires, campaigns, surveys or reports.

(d) The Quote and filled Works Form will be reviewed by Surveys Australia.

(e) Surveys Australia may finalise the Works Form by electing to either accept the Auto-Quote or revise the Quote in its sole discretion.

(f) If Surveys Australia requires any further information from the Company in relation to the Works Form, a representative from Surveys Australia will contact the Company using the contact details as listed in the Works Form.

(g) Once the Works Form is finalised by Surveys Australia in accordance with clause 3.2(e), it will be sent to the Company via email. The Company will have the opportunity to accept the finalised Works Form by clicking a link as sent to the Company by Surveys Australia via email (Acceptance).

(h) The parties agree that once Acceptance occurs, the finalized Works Form will:

(i) be the agreed scope of works for the Project (Scope of Works);

(ii) will form part of this Agreement; and

(iii) be binding upon the parties.

(i) Each Scope of Works between the Company and Surveys Australia under this Agreement shall be governed by the terms and conditions of this Agreement. In the event of any inconsistency between the provisions of the Scope of Works and this Agreement, the provisions of this Agreement shall prevail unless expressly stated otherwise in the Scope of Works.

(j) If the Company requires amendments to the Scope of Works, it must submit a new Works Form and the resubmitted Works Form must be accepted by Surveys Australia to constitute a valid amendment to the Scope of Works.

(k) The parties agree that the Company must submit a new Works Form if it requests amendments to the Scope of Works.

(l) Each Scope of Works shall specify the particular services to be provided, the duration, deliverables, and any specific terms applicable to that Project, which shall be read in conjunction with and as part of this Agreement.

(m) Each Project shall commence on the Project Commencement Date as specified in the Statement of Work, provided that it has been completed and signed by both parties. If it has not been completed and signed by the parties prior to the Project Commencement Date then the parties agree that the dates for the commencement and completion of the Services shall be extended accordingly.

3.3 Changes to Fees

(a) The Company acknowledges and agrees that some elements of the Services may be subjective in their nature and that the provision of the proposed Fees for a Project are based on the forecast time and resources that Surveys Australia anticipates each Project will take.

(b) The Company agrees that if Surveys Australia determines that the provision of the Services will require additional time or resources than what was originally contemplated by Surveys Australia at the time of signing the Statement of Work then:

(i) Surveys Australia may serve a notice to the Customer outlining a proposed variation in the Fees including reasoning for such variation (Variation Notice); and

(ii) the Customer must accept or reject the variation to the Fees within two (2) days of Surveys Australia providing the Variation Notice.

(c) If the Customer accepts the variation to the Fees as described in the notice issued under 3.3(b)(i) then the parties will sign a revised Scope of Works (which may include revised payment terms and top up payments) and Surveys Australia may continue the provision of the Services.

(d) If the Customer rejects the variation to the Fees as described the notice issued under 3.3(b)(i) then:

(i) Surveys Australia may immediately cease the provision of the Services under the affected Statement of work; and

(ii) Surveys Australia will refund to the Company any amounts prepaid to the Company under the affected Statement of Work less any amount representing payment for any part of the Services performed prior to the issue of the notice under clause 3.3(b)(i)

(e) If the Customer fails to respond to the notice issued under clause 3.3(b)(i) within the timeframe indicated in clause 3.3(b)(ii), then the parties agree that Surveys Australia may suspend provision of the Services and terminate this Agreement in its sole discretion within 14 days of Variation Notice.

(f) For the avoidance of doubt, any notice required under this clause 3.3 may be given electronically by email.

3.4 Changes to Scope of Works

(a) Where the Company requires changes to an agreed Scope of Works, the Company will complete a new Scope of Work form and provide this to Surveys Australia.

(b) Surveys Australia will consider the requested amendments and may:

(i) agree to make the changes to the Scope of Works;

(ii) reject the amendments to the Scope of Works; or

(iii) provide a new quote for the revised Scope of Works.

(c) If the Company agrees with any revised quote for the amended Scope of Works, the parties will amend the Scope of Works in writing and it must be signed by the parties before it is binding on either party.

4. Fees

4.1 Payment of Fees

(a) In consideration of the provision of the Services, the Company will pay the Fee to Surveys Australia in accordance with this Agreement.

(b) The Company agrees that it will pay all Fees to Surveys Australia in accordance with each Scope of Work on time and without setoff or deduction.

(c) If the Company fails to pay any amount payable under this Agreement by the due date, the Company shall pay interest on the overdue amount at the rate of 8% per annum, calculated daily, from the due date for payment until the date the payment is received by Surveys Australia in full.

(d) In addition to the interest on late payments, the Company agrees to reimburse Surveys Australia for any reasonable costs and expenses incurred in connection with recovering overdue amounts, including but not limited to legal fees, collection agency fees, and administrative costs.

5. Taxation

5.1 Payment of GST

(a) Unless specified otherwise, the Fees payable under this Agreement do not include GST.

(b) If GST is payable on any supply made by a party under or in connection with this Agreement, the consideration provided (or to be provided) for that supply will be increased by an amount equal to the GST liability properly incurred by the party making the supply (the GST Amount).

(c) The party making the supply must promptly provide a tax invoice or receipt, in an approved form for GST purposes, for any supply for which the party making the supply may recover GST.

(d) If a party has incurred a cost on which GST is payable, that party may claim the cost plus GST, unless the party is entitled to an input tax credit in respect of such GST.

(e) Any GST Amount must be paid at the same time and in the same manner as the consideration on which the GST Amount is calculated. However, the party receiving the supply is not required to pay the GST Amount until seven (7) days after receiving a tax invoice.

6. Intellectual Property

6.1 For the avoidance of doubt, Surveys Australia IP is owned solely by Surveys Australia and is not transferred or assigned to the Company in any manner under this Agreement.

6.2 The Company acknowledges that the provision of the Services may include the development of Intellectual Property including surveys, questionnaires, campaigns, reports and other documents (Materials).

6.3 The Company agrees to assign, and hereby assigns, to Surveys Australia all rights, title, and interest in and to any and all Intellectual Property created, developed, or otherwise generated in connection with the Services and Materials under this Agreement (Assigned IP). Surveys Australia shall own all Assigned IP from the moment of its creation.

6.4 If, for any reason, the assignment of any Intellectual Property cannot be completed, the Company agrees to grant, and hereby grants, to Surveys Australia an exclusive, royalty-free, worldwide, perpetual license to use, reproduce, modify, distribute, and otherwise exploit such Intellectual Property to the fullest extent possible.

6.5 Subject to the payment of the Fees in accordance with this Agreement, Surveys Australia agrees to grant to the Company a non exclusive, royalty free, licence to use the Surveys Australia IP for the Company’s internal business purposes to enable the Company to obtain the benefit of the Services.

6.6 The Company grants to Surveys Australia a non-exclusive, royalty free, worldwide licence to use any of the Company’s Intellectual Property required by Surveys Australia in order to:

(a) provide the Services as contemplated by this Agreement and any subsequent Scope of Work; and

(b) to obtain the full benefit of the Materials.

7. Provision of Company Materials

7.1 The Company warrants and represents that it has the full power and authority to provide any customer information, including but not limited to lists of people, phone numbers, and other personal data, to Surveys Australia in connection with this Agreement and any subsequent Scope of Work.

7.2 The Company further warrants and represents that the provision of such customer information to Surveys Australia, and Surveys Australia’s subsequent use of such information in providing the Services, will not breach any privacy obligations or privacy laws, including but not limited to the Privacy Act 1988 (Cth) and the Australian Privacy Principles.

7.3 The Company agrees to indemnify and hold harmless Surveys Australia and its Personnel from any and all claims, actions, liabilities, damages, costs, and expenses (including legal costs on a full indemnity basis) arising out of or in connection with any breach of the warranties and representations set out in this clause, including any claim that Surveys Australia’s use of the customer information constitutes a breach of privacy laws.

8. Confidentiality

8.1 Each party agrees to keep confidential and not disclose to any third party any Confidential Information received from the other party, except as required by law or with the express written consent of the disclosing party.

8.2 Each party agrees to use the Confidential Information solely for the purpose of fulfilling its obligations under this Agreement and any subsequent Scope of Work and not for any other purpose.

8.3 Each party shall take all reasonable measures to protect the confidentiality of the Confidential Information and prevent its unauthorised disclosure.

8.4 Confidential Information does not include information that:

(a) is or becomes publicly known through no breach of this Agreement;

(b) is lawfully received from a third party not bound by a confidentiality obligation;

(c) is independently developed by the receiving party without the use of or reference to the disclosing party's Confidential Information.

8.5 The confidentiality obligations under this clause shall continue for a period of five (5) years following the termination or expiration of this Agreement.

8.6 Upon termination or expiration of this Agreement, each party shall promptly return or destroy all Confidential Information received from the other party, including any copies thereof, at the request of the disclosing party.

8.7 Each party acknowledges that damages alone may not be an adequate remedy for any breach of the obligations of confidentiality and that the non-breaching party shall be entitled to seek injunctive relief in addition to any other remedies available at law or in equity.

9. Insurances

Surveys Australia agrees that it will effect and at all times maintain any insurances required to be effected by law.

10. Company warranties

10.1 The Company warrants, represents and undertakes to Surveys Australia upon execution and at all times during the Term that:

(a) the provision of any Company Materials to Surveys Australia in connection with this Agreement will not breach any agreement, understanding or Law or result in Surveys Australia breaching any Law;

(b) prior to entering into this Agreement, the Company was given a reasonable opportunity to obtain any advice (legal or otherwise) about this Agreement and the obligations and restraints contained in it;

(c) the Company has had sufficient time to consider the terms of this Agreement, its implications and the advice given to them in respect of it;

(d) the Company has had the opportunity to negotiate this Agreement and its provisions before entering into it, whether or not such negotiations resulted in amendments to the Agreement;

(e) the Company understands this Agreement and agree that its terms are fair and reasonable in the circumstances;

(f) the Company has entered into this Agreement voluntarily of its own freewill without duress, coercion, undue influence or pressure from either Surveys Australia or any other person; and

(g) it has full capacity and authority to enter into this Agreement.

10.2 The Company acknowledges that Surveys Australia is relying upon the warranties given in clause 12.1 in executing this Agreement and each Statement of Work.

11. Termination

11.1 Termination on notice

Surveys Australia may terminate this Agreement for any reason at any time by giving thirty (30) days written notice to the Company. In the event of termination under this clause 10.1, Surveys Australia shall refund the Company for any Services that have been paid for but not yet performed as of the termination date.

11.2 Termination on default

Surveys Australia may immediately terminate this Agreement by written notice to the Company if:

(a) the Company fails to pay the Fees on the date specified in the Schedule and such failure is not remedied within five (5) days of Surveys Australia providing written notice to the Company;

(b) the Company commits a material breach of any term of this Agreement, and such failure is not remedied within five (5) days of Surveys Australia providing written notice to the Company;

(c) the Company becomes insolvent, is wound up, enters into liquidation, administration, or receivership, or any other event of similar nature occurs;

(d) there is a change in the control of the Company that, in the sole discretion of Surveys Australia, adversely affects Surveys Australia’s interests; and

(e) the Company engages in any conduct that, in Surveys Australia’s sole discretion, damages or is likely to damage Surveys Australia's reputation or business.

11.3 Termination on Expiry Date

The parties agree that unless this Agreement has been terminated earlier in accordance with clauses 11.1 and 11.2, this Agreement will come to an end on:

(a) the Project Expiry Date; or

(b) the provision of the Deliverable, whichever is earlier.

11.4 Obligations on termination

(a) The parties agree that termination of this Agreement by Surveys Australia shall not affect any rights or obligations accrued by Surveys Australia prior to the date of termination.

(b) Upon termination of this Agreement, the Company shall immediately pay to Surveys Australia all outstanding amounts due under this Agreement up to and including the date of termination, plus any late payment fees or interest as specified in the Agreement.

12. Liability and indemnity

12.1 To the maximum extent permitted by law, Surveys Australia excludes any and all liability to the Company, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this Agreement, including any profits, sales or business, production, agreements or contracts, business opportunity, anticipated savings, or damage to goodwill or reputation.

12.2 To the maximum extent permitted by law, Surveys Australia's total aggregate liability to the Company under or in any way connected with this Agreement or the performance or non-performance of this Agreement, is limited to an amount equal to the amounts received by Surveys Australia under this Agreement in the six (6) month period immediately preceding the date on which the relevant claim arose.

12.3 The Company indemnifies and hold harmless Surveys Australia and its Personnel, and will keep all of them indemnified, against all actions, claims, charges, costs (including legal costs on a full indemnity basis), expenses, losses, damages and other liability that they may sustain or incur, directly or indirectly, as a result or as a consequence of:

(a) an actual breach, or a suspected breach (in the opinion of Surveys Australia), of this Agreement by the Company (including a breach of any warranty);

(b) any negligent, unlawful, wilful or fraudulent act or omission of the Company or its Personnel, in connection with this Agreement;

(d) any claim that Surveys Australia infringes the intellectual property rights or other rights of any person (except to the extent such claim is based on Surveys Australia IP).

12.4 The Company releases Surveys Australia from any loss, damage, cost or expense that it may suffer as a result of Surveys Australia performing its obligations under this Agreement or exercising any of its rights under this Agreement, except to the extent such loss, damage, cost or expense is caused by Surveys Australia's negligence or wilful misconduct.

13. Dispute Resolution

13.1 If a dispute arises out of or relates to this Agreement, a party must not commence any court or other proceedings relating to the dispute unless it has first complied with the following procedure, provided that nothing in this Agreement shall prevent a party from seeking injunctive or other interim relief from a court:

(a) the party claiming that a dispute has arisen must give written notice to the other party specifying the nature of the dispute;

(b) on receipt of that notice by that other party, the parties must endeavour in good faith to resolve the dispute using informal dispute resolution techniques such as mediation, expert evaluation, arbitration or similar methods agreed by them;

(c) if the parties do not agree within ten (10) days of receipt of the notice (or such further period as the parties agree in writing) as to:

(i) the dispute resolution method and procedures to be adopted;

(ii) the timetable for all steps in those procedures; and

(iii) the selection and compensation of the independent person required for such method,

the parties must mediate the dispute in accordance with the Mediation Rules and Guidelines of the Dispute Settlement Centre of Victoria.

13.2 Nothing in this Agreement will prejudice the right of a party to seek injunctive or declaratory relief in respect of a dispute or any matter arising under this Agreement.

14. General

14.1 Assignment: The Company must not assign, transfer, novate or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of Surveys Australia. Any purported dealing in breach of this clause is of no effect. A change in control (as defined in the Corporations Act of the Company constitutes a deemed assignment).

14.2 Costs: Each party must pay its costs of entering into and negotiation of this Agreement.

14.3 Counterparts: This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same agreement. No counterpart shall be effective until each party has executed at least one counterpart. The parties agree that an executed electronic copy of a digital scan (including in portable document format), of this Agreement (where such email address has been notified by a party to another party for these purposes) will serve as a legal and binding agreement with the same force and effect as the original.

14.4 Entire agreement: This Agreement is the entire agreement between the parties and supersedes all and any communications, negotiations, arrangements and agreements, whether oral or written, between the parties in respect of the matters that are the subject of this Agreement.

14.5 Force majeure: If by reason of any fact, circumstance, matter or thing beyond the reasonable control of either party and they are unable to perform in whole or in part any obligation under this Agreement then:

(a) that party must notify the other party of the force majeure event in writing as soon as reasonably practicable;

(b) provided that that party provided such notice, that party is relieved of that obligation under this Agreement to the extent and for the period that it is unable to perform such obligation;

(c) that party must provide notice to the other party, and resume its performance of its obligations as soon as it is reasonably able to do so unless otherwise agreed in writing; and

(d) that party will not be liable to the other party to this Agreement for failure to perform such obligation to the extent and for the period of non-performance due to circumstances beyond its control.

14.6 Further assurance: Each party must from time to time and in a timely manner do all things reasonably required of it by the other party to give effect to this Agreement.

14.7 No representations or warranties: The parties hereby acknowledge that no representations or warranties have been made other than those expressly recorded in this Agreement and that, in respect of this Agreement or any part of it including the transactions contemplated pursuant to this Agreement, no party has relied or will rely upon any representations or information, whether oral or written, previously provided to or discovered by it.

14.8 Notices: Unless expressly stated otherwise in this agreement, all Notices:

(a) must be:

(i) in writing;

(ii) signed -- if the party is a company, then the Notice must be signed by the company's directors or solicitors; and

(iii) left at the address, sent by prepaid ordinary post, sent by fax, or given in any other way permitted by law.

(b) take effect from the time they are received unless a later time is specified.

14.9 Relationship: Except as expressly stated in this Agreement, nothing in this Agreement is intended to create a relationship of partnership, joint venture, agency or employer-employee between the parties. Neither party has authority to create, assume or otherwise enter into any agreement that imposes rights or obligations on the part of the other party.

14.10 Powers, rights and remedies: Unless otherwise stated in this Agreement, the powers, rights and/or remedies of a party under this Agreement are cumulative and are in addition to any other powers, rights and remedies of that party. Nothing in this Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any power, right, or remedy that a party may have at any time against the other party to this Agreement or any other person.

14.11 Set off: The parties agree that no amount payable to a party may be set off by any amount owed to it by that party.

14.12 Severance: If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.

14.13 Survival: The following clauses are continuing obligations and will continue after termination or expiry of this Agreement: 1 (Definitions and interpretation), 6 (Intellectual Property), 7 (Confidentiality), 11.4 (Obligations on termination), 12 (Liability and indemnity), 12 (Dispute Resolution) and 14 (General).

14.14 Waiver: A failure by either party to take action to enforce its rights does not constitute a waiver of any right or remedy under this Agreement unless it is in writing signed by the party granting the waiver.

14.15 Jurisdiction: The parties irrevocably submit to the exclusive jurisdiction of the courts of the state of Victoria, Australia.

14.16 Governing law: This Agreement will be governed by and construed and interpreted in accordance with the laws of Victoria, Australia.