Terms of Service.

1.This agreement and the Term

1.1. This agreement

This agreement comprises:

a) the Order Form; and

b) the Service Terms.

1.2 Term of the agreement

This agreement commences on the Commencement Date and continues until the earlier of:

(a) completion of the Services; and

(b) termination in accordance with clause 8 (Term).

2. Services

2.1 Provision of Services

(a) Lysna must provide the Services:

(i) in accordance with this agreement;

(ii) with due care and skill; and

(iii) in a professional manner.

(b) Lysna will not be responsible for any failure to provide the Services where any assumptions stated in the Order Form are not met.

2.2 Customer’s requirements

The Customer must:

(a) use the Services in accordance with all applicable laws;

(b) not use the Services to engage in fraudulent or illegal behaviour, or in a way that the Customer knows or ought to reasonably know, infringes any third party’s Intellectual Property Rights;

(d) promptly perform any Customer Responsibilities;

(e) cooperate with Lysna and act reasonably in connection with its receipt of the Services; and

(f) ensure that its Personnel comply with subclauses 2.2 (a) and 2.2(e) above.

3. Fees and invoices

3.1 Fees and expenses

(a) The Customer must pay all applicable Fees to Lysna.

(b) The Customer will reimburse any pre-approved expenses of Lysna incurred in the course of providing the Services, subject to the production of receipts or other appropriate evidence of payment.

3.2 Invoice and payment

(a) Lysna will invoice the Customer monthly in advance for the Fees and any other amount payable by the Customer to Lysna in accordance with this agreement.

(b)The Customer must pay an invoice issued to Lysna by the date specified on the invoice, or otherwise within 14 days after the date of issue of the invoice.

4. Intellectual property

4.1 Lysna Material and Developed Material

(a) The parties agree that:

(i) Lysna (or its licensors, as applicable) retains ownership of all Intellectual Property Rights subsisting in all Lysna Material; and

(ii) any modification or enhancement to any Lysna Material is deemed to form part of Lysna Material and all Intellectual Property Rights in such modification or enhancement vest in Lysna immediately from creation.

(b) The Intellectual Property Rights in any Developed Material are owned by Lysna, and to the extent Developed Material does not automatically vest in Lysna, the Customer assigns all Intellectual Property Rights in any Developed Material to Lysna.

(c) Lysna grants to the Customer for the Term a non-exclusive, royalty-free, non-transferable licence to use the Intellectual Property Rights in any Lysna Material and Developed Material provided to the Customer in connection with this agreement, solely for purposes receiving the benefit of the Services.

(d) Lysna warrants that the Customer’s use of Intellectual Property Rights in any Lysna Material or Developed Material in accordance with this agreement will not infringe the Intellectual Property Rights of any third party.

4.2 Customer Material

(a) The parties agree that:

(i) the Customer (or its licensors, as applicable) retains ownership of all Intellectual Property Rights subsisting in all Customer Materials; and

(ii) any modification or enhancement to any Customer Material is deemed to form part of the Customer Materials and all Intellectual Property Rights in such modification or enhancement vest in the Customer immediately from creation.

(b) The Customer grants to Lysna for the Term a non-exclusive, royalty-free, non-transferable licence to use the Intellectual Property Rights in any Customer Material, solely for the purposes of Lysna providing the Services to the Customer and otherwise performing its obligations under this agreement.

(c) The Customer warrants that the Lysna’s use of Intellectual Property Rights in any Customer Material in accordance with this agreement will not infringe the Intellectual Property Rights of any third party.

4.3 Moral Rights

Each party warrants that to the best of its knowledge and belief, it has procured the necessary consents in relation to Moral Rights to grant the other party the rights to use and own (as applicable) the relevant Intellectual Property Rights described in this clause 4 in accordance with this agreement.

4.4 Use of the Customer’s marks

The Customer grants Lysna the right to use the Customer’s name, logo, trade marks and branding in Lysna’s promotional and marketing material from time to time for the purpose of identifying the Customer as a customer of Lysna, except where the Customer has expressly notified Lysna in writing that it does not want Lysna to use the Customer’s name, logo, trade marks and branding in Lysna’s promotional and marketing material.

5. Confidential Information

5.1 Protection of Confidential Information

Each party must only use or copy the other party’s Confidential Information for the purposes of this agreement and must take all steps reasonably necessary to:

(a) maintain the confidentiality of the other party’s Confidential Information;

(b) ensure that any person who has access to Confidential Information of the other party through it or on its behalf does not use, copy or disclose that Confidential Information other than in accordance with this agreement; and

5.2 Restriction on disclosure

(a) Each party must not disclose the Confidential Information of the other party to any person except:

(i) to its Personnel who need to know the Confidential Information for the purposes of this agreement;

(ii) where the disclosure is required by applicable law, or under compulsion of law by a court or Government agency or by the rules of any relevant stock exchange or regulator, as long as the disclosing party:

(A) discloses the minimum amount of Confidential Information required to satisfy the law or rules; and

(B) before disclosing any information, gives a reasonable amount of notice to the other party and takes all reasonable steps (whether required by the other party or not) to maintain such Confidential Information in confidence;

(iii) if the other party has given its consent to the disclosure or use; or

(iv) as expressly permitted by this agreement.

(b) Before disclosing Confidential Information to a person, the disclosing party must take reasonable steps to ensure that the person is aware of the confidential nature of the Confidential Information and is bound by confidentiality obligations that are substantially similar to those set out in this agreement.

5.3 Return of Confidential Information

Subject to clause 5.4, each party must return (or, if requested by the other party, destroy or permanently de-identify) all copies of the other party’s Confidential Information in its possession or control within 10 Business Days of expiry or termination of this agreement.

5.4 Exclusions

The obligations of confidence in clauses 5.1 and 5.2 do not apply to Confidential Information:

(a) that is in the public domain otherwise than as a result of a breach of this agreement or other obligation of confidence; or

(b) that is already known by, or rightfully received, or independently developed, by the recipient of that Confidential Information free of any obligation of confidence.

5.5 Injunctive relief

Each party acknowledges that:

(a) the other party may suffer financial and other loss and damage if any unauthorised act occurs in relation to Confidential Information of the other party, and that monetary damages would be an insufficient remedy; and

(b) in addition to any other remedy available at law or in equity, the other party is entitled to injunctive relief to prevent a breach of, and to compel specific performance of this clause 5.

6. Privacy

6.1 Customer’s obligations

If the Customer provides, discloses or otherwise makes available to Lysna (or its Personnel) any Customer Personal Information, the Customer must make all disclosures and obtain all consents required to ensure that:

(a) the Customer is lawfully (including without breaching the Privacy Laws) able to provide, disclose or make available the Customer Personal Information to Lysna and its Personnel; and

(b) Lysna is lawfully (including without breaching the Privacy Laws) able to collect, store, use, disclose or otherwise deal with the Customer Personal Information for the purposes of providing the Services and otherwise performing its obligations under this agreement.

7. Limitation of liability

7.1 Limitation of liability

Subject to clauses 7.2, 7.3, 7.4 and 7.5, the aggregate liability of a party for all Loss suffered by the other party in connection with this agreement is limited to the total Fees paid or payable by the Customer in connection with those Services.

7.2 Reduction of liability

To the extent permitted by law, the liability of a party under or in connection with this agreement will be reduced proportionately by the extent, if any, to which a breach of this agreement by, or the negligent acts or omissions of, the other party (or its Personnel) caused or contributed to the relevant Loss suffered or incurred by the other party.

7.3 Consequential Loss

Subject to clauses 7.4 and 7.5, neither party is liable for any Consequential Loss however caused (including by the negligence of a party or its Personnel), suffered or incurred in connection with this agreement.

7.4 Australian consumer law

If the Competition and Consumer Act 2010 (Cth) or any other legislation states that there is a guarantee in relation to any good or service supplied by Lysna in connection with this agreement, and Lysna’s liability for failing to comply with that guarantee cannot be excluded but may be limited, clauses 7.1 and 7.3 (and any inconsistent limitation or exclusion expressed elsewhere in this agreement including the Order Form) do not apply to that liability and instead Lysna’s liability for such failure is limited to (at the election of Lysna), in the case of a supply of goods, Lysna replacing the goods or paying the cost of having the goods repaired or replaced or supplying equivalent goods or repairing the goods, or in the case of a supply of services, Lysna supplying the services again or paying the cost of having the services supplied again.

7.5 Uncapped heads of liability

Subject to clause 7.2, the parties agree that the limitations and exclusions of liability set out in this agreement do not apply where a party’s liability arises from:

(a) death of, or personal injury to, any person that is caused by that party or its Personnel;

(b) loss of, or damage to, tangible property that is caused by that party or its Personnel;

(d) any breach of a privacy obligation set out in this agreement by that party or its Personnel; or

(e) any unlawful or fraudulent act or omission of that party or its Personnel.

7.6 Service limitation

To the extent permitted by law, Lysna does not warrant that the Customer’s use of the Services will be uninterrupted or error-free or that the Services and/or the information obtained by the Customer through the Services will meet the Customer’s requirements.

8. Termination and suspension

8.1 Termination for breach

If:

(a) a party (the first party):

(i) commits a breach of this agreement that has a material and adverse effect on the other party, and that breach is not capable of remedy;

(ii) commits a breach of this agreement that has a material and adverse effect on the other party, and fails to remedy that breach within 30 days of receiving notice from the other party requiring the first party remedy that breach (where capable of remedy); or

(b) an Insolvency Event occurs in relation to the first party, then the other party may terminate this agreement (in the case of 8.1(b), subject to any provision of the Corporations Act 2001 (Cth) or any related subordinate legislation that may prevent or restrict the exercise of a right of termination or other right under this agreement) by notice to the first party in which case this agreement will terminate on the date specified in that notice or, if no date is specified, immediately.

8.2 After termination or expiry of this agreement

On termination or expiry of this agreement:

(a) accrued rights or remedies of a party are not affected;

(b) except as expressly specified otherwise in this agreement, all licences and similar rights granted under this agreement cease to be granted immediately; and

(c) within a reasonable period of time after termination or expiry of this agreement, the Customer must return to Lysna all Lysna Materials and Developed Materials and Lysna must return to the Customer all Customer Materials.

8.3 Survival

Termination or expiry of this agreement will not affect indemnities, clauses 2.2(f), 4, 5, 6, 7, 8.2, 9 and this clause 8.3, or any provision of this agreement which is expressly or by implication intended to come into force or continue on or after the termination or expiry.

8.4 Suspension

Without limiting any other remedy Lysna may have under this agreement or at law, Lysna may suspend the Customer’s access to the Services if the Customer has not paid Lysna the Fees in accordance with this agreement, provided that Lysna shall first have given to the Customer at least seven days' notice that the Services would be suspended if the outstanding sums are not paid in full. Lysna will restore the Customer’s access to the Services as soon as reasonably possible once the reason for the suspension has been addressed or removed.

9. Dispute resolution

9.1 Dispute

Clause 9 applies to any dispute which arises between the Customer and Lysna in connection with this agreement (Dispute).

9.2 Dispute Notice

(a) If either the Customer or Lysna considers that a Dispute has arisen, it may issue a notice to the other party, setting out reasonable particulars of the matters in dispute (Dispute Notice).

(i) The Customer and Lysna must not commence or maintain any action or proceeding in any court, tribunal or otherwise regarding a Dispute without first giving a Dispute Notice and complying with clause 9.

9.3 Discussions

The Customer and Lysna must promptly hold discussions between representatives of each party after the issue of a Dispute Notice to attempt to resolve the Dispute.

9.4 Summary or urgent relief

(a) Subject to clause 9.4(b), neither party may commence legal or arbitration proceedings in relation to any Dispute in connection with this agreement unless, despite following the procedures set out in this clause 9, the parties have been unable to resolve the Dispute within 30 days of the date that the applicable Dispute Notice was received.

(b) Notwithstanding anything in this clause 9, a party may at any time commence court proceedings in relation to a Dispute or claim arising in connection with this agreement where that party seeks urgent interlocutory relief.

10. Force majeure

Lysna will not be:

(a) in breach of this agreement as a result of; or

(b) liable for,

any failure or delay in the performance of its obligations (other payment obligation) under this agreement to the extent that such failure or delay is wholly or partially caused, directly or indirectly, by a Force Majeure Event.

11. GST

All sums payable to Lysna under this agreement:

(a) are exclusive of GST, and the Customer must in addition pay an amount equal to any GST chargeable on those sums on delivery of a GST invoice; and

(b) must be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

12. General

12.1 Precedence

(a) If there is any inconsistency between the provisions of this agreement, a descending order of precedence will be accorded to:

(i) the Service Terms; and

(ii) the Order Form,

so that the provision in the higher ranked document, to the extent of the inconsistency, will prevail.

12.2 Amendments

This agreement may only be amended or varied by written agreement between the parties.

12.3 Costs

Each party must bear its own costs in relation to the preparation, negotiation, signing and performance of this agreement.

12.4 Assignment and novation

A party may not assign, in whole or in part, or novate its rights and obligations under or in connection with this agreement without the prior consent of the other party (such consent not to be unreasonably withheld).

12.5 Counterparts

This agreement may be executed in any number of counterparts and all counterparts together make one instrument.

12.6 Entire agreement

This agreement supersedes all previous agreements about its subject matter. This agreement embodies the entire agreement between the parties.

12.7 Further assurances

Each party must do all things necessary to give effect to this agreement and the transactions contemplated by it.

12.8 Governing law and jurisdiction

(a) The laws of Queensland, Australia govern this agreement.

(b) Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland, Australia and courts competent to hear appeals from those courts.

12.9 No waiver

The failure of a party at any time to require full or partial performance of any provision of this agreement does not affect in any way the right of that party to require that performance subsequently.

12.10 Relationship between parties

Unless expressly stated otherwise, this agreement does not create a relationship of employment, trust, agency or partnership between the parties.

12.11 Severability

A clause or part of a clause of this agreement that is illegal or unenforceable may be severed from this agreement and the remaining clauses or parts of the clause of this agreement continues in force.

12.12 Subcontracting

Lysna may subcontract the performance of all or any part of its obligations under this agreement.

13. Definitions and interpretation

13.1 Definitions

In this agreement:

Business Day - means a day that is not a Saturday, Sunday or public holiday in Brisbane, Australia.

Claim - any allegation, debt, cause of action, liability, claim, proceeding, suit or demand.

Commencement Date - the date on which the Order Form is executed by the last party.

Confidential Information - of a party means the terms of this agreement and any information:

(a) relating to the business and affairs of that party;

(b) relating to the customers, clients, employees, sub-contractors or other persons doing business with that party;

(d) which is designated as confidential by that party; or

(e) which the other party knows or ought to know, is confidential,

and includes all trade secrets, knowhow, financial information and other commercially valuable information of that party, and in the case of Lysna, includes Lysna Material and Developed Material and, in the case of the Customer, includes Customer Material.

Consequential Loss

Consequential Loss in clause 7.2 means:

(a) loss of profits;

(b) loss of revenues;

(d) loss of use of the Services;

(e)loss of reputation;

(f) consequential loss;

(g) loss of actual or anticipated savings;

(h) lost opportunities, including opportunities to enter into arrangements with third parties;

(i) loss or damage in connection with claims against the Customer by third parties; or

(j) loss or corruption of data.

Customer Responsibilities - means the responsibilities identified as such in the Order Form.

Corporations Act - means Corporations Act 2001 (Cth).

Customer Material - means any material provided by or to which access is given by the Customer to Lysna for the purposes of this agreement including documents, software, object code, source code, configurations, equipment, hardware, reports, technical information, studies, plans, charts, drawings, calculations, tables, schedules and data stored by any means.

Customer Personal Information - means any Personal Information made available to Lysna by the Customer.

Developed Materials - means materials (of any nature) created by or on behalf of Lysna in the course of providing the Services.

Fees - mean the fees set out in the Order Form and any other amounts contemplated by this agreement as being payable by the Customer to Lysna.

Force Majeure Event - means any occurrence or omission outside a party’s control.

Insolvency Event - means any of the following events:

(a) a controller (as defined in the Corporations Act) is appointed to the party, or over any of the property of the party;

(b) a controlling trustee is appointed to the party, or over any of the property of the party;

(d) the party ceases to carry on business; or

(e) any event happens in Australia or any other country or territory in respect of a party that is similar to any of the events or circumstances referred to in this definition.

Any event that takes place as part of a solvent reconstruction, amalgamation, merger, or consolidation, on terms approved in writing by the other party beforehand and in compliance with those terms is excluded from this definition.

Intellectual Property Rights - means all industrial and intellectual property rights, both in Australia and throughout the world, and includes any copyright, patent, registered or unregistered trade mark, registered or unregistered design, trade secret, knowhow, right in relation to semiconductors and circuit layouts, trade or business or company name, indication or source or appellation of origin or other proprietary right, or right of registration of such rights.

Loss - means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, including all legal and other professional costs on a full indemnity basis.

Lysna Material - means any material owned by Lysna that is provided by or to which access is given by Lysna to the Customer for the purposes of this agreement including documents, software, object code, source code, configurations, equipment, hardware, reports, technical information, studies, plans, charts, drawings, calculations, tables, schedules and data stored by any means, but does not include Developed Materials.

Moral Rights - the rights conferred by Part IX of the Copyright Act 1968 (Cth) and including any similar rights existing or that may come to exist anywhere in the world.

Order Form - means an Order Form agreed between the parties that incorporates these Service Terms.

Personal Information - has the meaning given to that term in the Privacy Act.

Personnel - means a party’s employees, secondees, directors, officers, contractors, professional advisers and agents.

Privacy Act - means the Privacy Act 1988 (Cth) and any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued there under, as amended from time to time.

Privacy Laws means:

(a) the Privacy Act;

(b) the Australian Privacy Principles (or APPs) contained in Schedule 1 of the Privacy Act ; and

(c) all other applicable laws, regulations, registered privacy codes, privacy policies and contractual terms in respect of the processing of Personal Information.

Services - means all services to be provided by Lysna to the Customer set out in the Order Form.

Service Terms - means clauses 1 to 13 of this document.

Term - has the meaning given to it in clause 1.1.