Recitals

A The Customer seeks to engage the Consultant to provide Services.

B The Consultant has offered to the Customer to perform complimentary Services as outlined in the Proposal.

C The Customer agrees to accept the Consultant’s offer to perform complimentary Services according to the terms and conditions of this Agreement.

Operative Part

2. Binding Agreement

The Parties agree that:

(a) the Proposal constitutes a formal offer from the Consultant capable of being accepted by the Customer; and

(b) by the Customer signing the Order Form, each Party becomes legally bound to the terms of this Agreement.

3. Consideration

(a) Each Party gives the undertakings in this agreement in consideration of the other Party’s performance of its obligations under this Agreement.

(b) The Consultant agrees to perform the Services for the Customer on a complimentary basis (that is, the Customer is not obliged to pay the Customer for the Services).

4. Scope

Upon execution of this Agreement, the Consultant shall make reasonable efforts to perform the Services as described in the Proposal based on the Customer Inputs.

5. Rights in Deliverables

Subject to the terms of this Agreement, the Deliverables shall be jointly owned by the Parties and may be used by either Party for any purpose.

6. Rights in Background IP & Customer Inputs

(a) Except as outlined in Clause 6(b), nothing in this Agreement affects a Party’s rights in respect of Intellectual Property existing before the date of the Agreement.

(b) Subject to Clause 6(c), the Customer grants the Consultant and its affiliated entities a perpetual, irrevocable, royalty free, worldwide, non-exclusive, non-transferrable license in respect of the Customer Inputs to retain and use the Customer Inputs for any purpose as determined by the Consultant in its sole discretion.

(c) Prior to Customer Inputs being retained or used by the Consultant or its affiliates pursuant to Clause 6(b), the Consultant must:

(i) issue the Deliverables to the Client; and

(ii) ensure that Customer Inputs are anonymised and rendered incapable of being traced back to the Customer.

7. Confidentiality & Data Protection

(a) General Obligations: Each Party must, unless the other Party consents in writing or is otherwise stated in this Agreement:

(i) keep all Confidential Information confidential and not disclose, permit or cause the Confidential Information to be disclosed to any person other than to any of the following provided they are subject to confidentiality obligations at least as stringent as in this Clause 7:

(A) any Personnel of the Consultant, its subsidiaries and/or affiliates the minimum extent necessary for the Consultant to provide the Services; and

(B) its external auditors or external legal advisors who require the Confidential Information in connection with the Party’s business and/or legal obligations, and

(ii) not use any Confidential Information except solely to the minimum extent necessary for the performance, use and enjoyment of the Services.

(b) Exceptions: Clause 7(a) does not apply to:

(i) information after it becomes generally available to the public other than as a result of the breach of this Clause 7 or any other obligations of confidence imposed on the Consultant; or

(ii) the disclosure of information in order to comply with any applicable law or legally binding order of any court, government agency or recognised stock exchange, provided that in the case of the Consultant, prior to such disclosure the Consultant gives notice to the Company with full particulars of the proposed disclosure .

(c) Return of Confidential Information: If requested by either Party, whether prior to or after the expiry or earlier termination of the Agreement, the other Party must promptly return all Confidential Information in its custody, possession or control except for any Confidential Information that a Party cannot return, because it is:

(i) located on a server as a result of the automatic back-up of data in the usual operations of the Party (for example, for archive, disaster recovery or other purposes); and

(ii) not readily accessible to the Party.

(d) Expiry of Obligations: Each Party’s obligations under this Clause 7 shall expire five (5) years after the Effective Date.

(e) Personal Data Protection: Each Party shall comply with all applicable laws in respect of personal data protection.

8. No Warranty

The Customer agrees that the Services are provided to the Customer “as is”. Use of any Deliverable by the Customer is at the Customer’s own risk. To the maximum extent permitted by law, the Consultant makes no representations and grants no warranties of any kind, express, implied and/or statutory in respect of the Services including without limitation in respect of the use or operation of any Deliverable, and the accuracy, completeness, and/or timeliness of the information contained within any Deliverable.

9. No Liability

(a) Subject to Clause 9(b), the Consultant shall not be liable to the Customer and/or any other person for any loss or damage whatsoever (including without limitation Consequential Loss) and howsoever caused arising out of or in any way connected with this Agreement including without limitation in respect of the Services and/or any Deliverable.

(b) Clause 9(a) shall not apply to the Consultant’s liability to the Customer arising from a breach of Clause 7.

10. Term and Termination

(a) The term of this Agreement will commence on the Effective Date and continue for a period of one (1) year.

(b) Either Party may terminate this Agreement on 30 days written notice to the other Party.

11. General

(a) Order of Precedence: To the extent of any inconsistency between the documents comprising the Agreement, the following order of precedence shall apply from highest to lowest priority: (i) Terms and Conditions; (ii) Order Form; (iii) Proposal.

(b) Discretion in exercising rights: A Party may exercise a right or remedy or give or refuse its consent in any way it considers appropriate (including by imposing conditions), unless this Agreement expressly states otherwise. If a Party does not exercise a right or remedy fully or at a given time, the Party may still exercise it later.

(c) Remedies cumulative: The rights and remedies provided in this Agreement are in addition to other rights and remedies given by law independently of this Agreement.

(d) Variation and waiver: This Agreement can only be varied by a written agreement signed by both parties.

(e) Exclusion of relationships: The Parties acknowledge and agree that this Agreement and its performance do not represent or imply a partnership, agency, fiduciary relationship, joint venture, distribution or any other category of commercial or personal relationship between the Parties recognised at law or in equity as giving rise to forms of specific rights and obligations. This agreement does not bind the Parties to any exclusivity obligation.

(f) Governing law: This agreement is governed by the law in force in Western Australia. Each party submits to the non-exclusive jurisdiction of the courts of that place and courts of appeal from them.

12. Definitions

The following definitions apply in this agreement, unless the context requires otherwise.

Agreement means the contract legally binding the Parties comprised of the (1) Proposal; (2) the Order Form accompanying the Proposal signed by the Customer; and (3) these Terms and Conditions.

Confidential Information means all information and/or data disclosed or otherwise made available by the one Party (Discloser) to the other Party (Recipient) for or in connection with this Agreement and all information or and/or data created by the Recipient in the course of carrying out its obligations under this Agreement, including:

(a) information which, either orally or in writing, is designated or indicated as being the proprietary or confidential information of the Discloser or any of its Related Entities;

(b) proprietary or confidential information of a third party to whom the Discloser or any of its subsidiaries or affiliates owes an obligation of confidentiality;

(c) information derived or produced partly or wholly from such information including any calculation, conclusion, summary or computer modelling;

(d) trade secrets or information which is capable of protection at law or equity as confidential information or is otherwise confidential in nature; and

(e) in respect of the Consultant’s confidentiality obligations, Customer Inputs and any Deliverable.

Consequential Loss means: (i) any special, indirect and/or consequential losses under the laws governing this Agreement; and (ii) loss of production, profits, use, revenue, anticipated profit, data, and/or contract, arising from or relating to this Agreement, whether such losses are direct or indirect, and whether or not such losses were foreseeable at the time of entering into the Agreement.

Consultant means the person or entity identified as such in the Order Form.

Customer means the person or entity identified as such in the Order Form.

Deliverables means any aspect of the Services to be delivered to the Customer as described in the Order Form.

Customer Inputs means any Confidential Information provided by the Customer to the Consultant which is identified in the Proposal as being required by the Consultant to perform the Services.

Order Form means the document named ‘Order Form’ accompanying the Proposal and referencing these Terms and Conditions.

Party means each of the Consultant and the Customer.

Personnel means a Party’s employees, agents and contractors.

Proposal means the proposal for complimentary Services issued by the Consultant to the Customer and attaching the Order Form and referencing these Terms and Conditions.

Services means the services to be performed (including any Deliverables) by the Consultant in accordance with the Agreement as described in the Order form.

Terms and Conditions means these idoba TEA Complimentary Services Terms & Conditions.

13. Interpretation

(a) References to certain general terms: A reference in this agreement to:

(i) (law) law means common law, principles of equity, and laws made by parliament (and laws made by parliament include State, Territory and Commonwealth laws and regulations and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them);

(ii) (singular includes plural) the singular includes the plural and vice versa;

(iii) (person) the word “person” includes an individual, a firm, a body corporate, a partnership, joint venture, an unincorporated body or association, or any Government Agency;

(iv) (executors, administrators, successors) a particular person includes a reference to the person’s executors, administrators, successors, substitutes (including persons taking by novation) and assigns;

(v) (two or more persons) an agreement, representation or warranty in favour of two or more persons is for the benefit of them jointly and each of them individually, and an agreement, representation or warranty by two or more persons binds them jointly and each of them individually;

(vi) (reference to a group of persons) a group of persons or things is a reference to any two or more of them jointly and to each of them individually;

(vii) (calculation of time) if a period of time dates from a given day or the day of an act or event, it is to be calculated exclusive of that day;

(viii) (reference to a day) a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later; and

(ix) (meaning not limited) the words “include”, “including”, “for example” or “such as” are not used as, nor are they to be interpreted as, words of limitation, and, when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind.

(b) Headings: Headings (including those in brackets at the beginning of paragraphs) are for convenience and do not affect the interpretation of this Agreement.