SERVICE AGREEMENT

This service agreement is entered into between the Customer (you) and Smiling Mind ACN 161 428 459 (we, us, our).

 

Terms specific to the Smiling Mind Primary School Program

'Digital Product Agreement Terms' 

Please refer to terms specified on this page: https://smilingmind.org.au/pages/terms 

'Privacy Policy' and 'Website, Web App & Application Terms of Use' 

Please refer to policy and terms specified on this page:  https://www.smilingmind.com.au/privacy-and-terms 

Smiling Mind is committed to maintaining the confidentiality and security of your personal information and managing it in an open and transparent way. Smiling Mind may share details of participating schools (name only) with the relevant educational jurisdiction in each state/territory (Department of Education, Catholic Education Office, or similar). 

If reasonably requested by the School Leader, to support with the implementation of the program, Smiling Mind will disclose to the School Leader the names of school staff who have activated their Unique Access Key, and the status of their engagement with Smiling Mind Primary School Program Digital Products.

 

Webinars / Workshops / Live Practice Sessions 

All Webinars/Workshops provided as part of the Smiling Mind Primary School Program will be recorded for quality assurance and training purposes. The recordings will only be shared with participants of the Smiling Mind Primary School Program. Smiling Mind reserves the right to cancel, postpone or reschedule any Webinar and/or Workshop if, acting reasonably, we consider we are unable to perform our obligations in connection with the Webinar/Workshop.

Evaluation & Evaluation Data 

Smiling Mind uses a range of tools to evaluate the impact of its programs, and to better support educator and student mental health and wellbeing. As part of whole school bundles for this program (not individual licence purchases), you have special access to these valuable measurement tools, to allow you and your school to monitor the impact of the program on the wellbeing of your students, as well as educators. The surveys have been developed by the Australian Council for Educational Research (ACER).
Program evaluation, research, and continuous improvement:
  • We’ve partnered with the Australian Council for Educational Research (ACER) to conduct an independent study into how this program might support aspects of student and staff wellbeing. We will share information on participating schools (name, location, demographic data etc.) with ACER to support the evaluation.
  • As part of the program and its evaluation, participating schools have the opportunity to monitor the wellbeing of their students (grades 3 to 6) and staff through short anonymous online surveys.
  • Surveys are administered online through ACER’s secure survey platform (PeoplePulse), but distribution of the survey is managed by the school and ACER staff will not be in direct contact with any student.
  • Usage of these surveys is optional, but we encourage you to take this opportunity to gain insights into the wellbeing of your school community.
  • If you choose to utilise these surveys, you will receive an interactive summary report that allows you to monitor results, including student engagement, connection to school, perseverance, optimism and happiness. This report will also help you to monitor response rates.

 

Standard Service Agreement Terms

1. Defined terms & interpretation

1.1 Defined terms

In this agreement:

  • Ancillary Costs means our reasonable costs, including accommodation and travel costs, in relation to each Workshop (as included on each invoice with the agreement of both parties, acting reasonably)
  • App means the mobile application published by us known as 'Smiling Mind', including the workplace program included in that application.
  • Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth) as amended or replaced from time to time.
  • Balance means the 'Balance' amounts set out in the Contract Details.
  • Business Day means:
    • for receiving a notice under clause 18, a day that is not a Saturday, Sunday, public holiday or bank holiday in the place where the notice is received; and
      for all other purposes, a day that is not a Saturday,
    • Sunday, bank holiday or public holiday in Victoria, Australia.
  • Business Hours means from 9.00am to 5.00pm on a Business Day.
  • Confidential Information of a Disclosing Party means:
    • the following information, regardless of its form and whether the Receiving Party becomes aware of it before or after the date of this agreement:
      • information that is by its nature confidential;
      • information that is designated by the Disclosing Party as confidential; and
      • information the Receiving Party knows, or ought to know, is confidential;
    • all notes and other records prepared by the Receiving Party based on or incorporating information referred to in paragraph (a); and
    • all copies of the information, notes and other records referred to in paragraphs (a) and (b),

but excludes information that:

    • the Receiving Party creates (whether alone or jointly with any third person) independently of the Disclosing Party; or
    • is public knowledge (otherwise than as a result of a breach of confidentiality by the Receiving Party or any of its permitted disclosees).
  • Contract Details means the agreement between you and us (Purchase Order Contract) pursuant to which we agree to provide certain Workshops and licences to access our programs (as amended or replaced from time to time).
  • Deposit means the 'Deposit' amounts set out in Item 3.A of the Contract Details.
  • Designated Number of End Users means the number of End Users which must not exceed the maximum number of App Licences specified in the Contract Details (if any) without our prior written approval.
  • Direction has the meaning given in clause 10.1.
  • Disclosing Party means a party who discloses or makes available Confidential Information to a Receiving Party.
  • Dispute has the meaning given in clause 17.2.
  • Documentation means any documentation for the service or apps made available by us under this Agreement, and includes changes (including additions) to that documentation from time to time.
  • End User means any of your employees you authorise to access and use the service or apps.
  • End User Terms of Service means the terms and conditions under which an End User is authorised to use the App, available at https://www.smilingmind.com.au/privacy-and-terms
  • Force Majeure Event has the meaning given in clause 16.
  • Initial Term is the period commencing on the date the system access is provided to you and ending on the completion of the licence period as defined in the Contract Details.
  • Insolvency Event means any of the following events:
    • a party disposes of the whole or any part of its assets, operations or business other than in the ordinary course of business;
    • a party ceases to carry on business;
    • a party ceases to be able to pay its debts as they become due;
    • any step is taken by a mortgagee to take possession or dispose of the whole or any part of a party's assets, operations or business;
    • any step is taken to enter into any arrangement between a party and its creditors; or
    • any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other like person of the whole or any part of a party's assets or business.
  • Intellectual Property Rights means all intellectual property rights, including the following rights:
    • patents, copyright, rights in circuit layouts, designs, moral rights, trade and service marks (including goodwill in those marks), domain names and trade names and any right to have Confidential Information kept confidential;
    • any application or right to apply for registration of any of the rights referred to in paragraph (a); and
      all rights of a similar nature to any of the rights in paragraphs (a) and (b) that may subsist anywhere in the world (including Australia),

whether or not such rights are registered or capable of being registered.

  • Law means any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in the relevant jurisdiction, and includes the common law and equity as applicable from time to time and any applicable industry codes of conduct.
  • Licence Start Date has the meaning given in item 3.B of the Contract Details.
  • Licence Expiry Date has the meaning given in item 3.B of the Contract Details.
  • Licence Period means:
    • the Initial Term; and
    • any Renewed Term.
  • Non-excludable Obligation has the meaning given in clause 14.1.
  • Notice has the meaning given in clause 18(a).
  • Personal Information means information or an opinion, whether true or not, and whether recorded in a material form or not, about a natural person whose identity is apparent or can reasonably be ascertained.
  • Personnel means, in relation to a party, the officers, employees, contractors and agents of that party (but, in the case of you, excludes us and our Personnel).
  • Receiving Party means a party to this agreement who obtains Confidential Information of the other party to this agreement.
  • Recipient has the meaning given in clause 8.4(a).
  • Services means the services set out in Item 3 of the Contract Details, including the provision of Workshops and/or App Licences (as applicable).
  • Start Date means the date listed in the Contract Details.
  • Supply Maker has the meaning given in clause 8.4.
  • Workshop means a workshop for your employees to be facilitated by us on a date and at a time/location to be agreed by the parties.
  • Workshop Materials means any materials (such as presentations) we provide to you in relation to a Workshop. 

1.2 Interpretation

In this agreement, except where the context otherwise requires:

  • the singular includes the plural and vice versa, and a gender includes other genders;
  • another grammatical form of a defined word or expression has a corresponding meaning;
  • a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, this agreement, and a reference to this agreement includes any schedule or annexure;
  • a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
  • unless specified otherwise, a reference to A$, $A, dollar or $ is to Australian currency;
  • a reference to a party is to a party to this agreement, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns;
  • a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re enactments or replacements of any of them;
  • the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
  • a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it; and
  • if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day.

1.3 Headings

Headings are for ease of reference only and do not affect interpretation.

2. Precedence of documents

2.1 Composition

This agreement consists of:

  • the Contract Details;
  • this agreement; and
  • any document annexed to, or incorporated by reference into, this agreement or the schedules to this agreement.

2.2 Inconsistency

If there is any inconsistency or conflict between the provisions of any of the documents listed in clause 2.1, then the provisions of an earlier mentioned document will prevail to the extent of an inconsistency or conflict with the provisions of a document that is lower down in that list.

3. Term 

This agreement:
  1. begins on the Start Date; and
  2. continues, unless the parties agree in writing otherwise or this agreement is terminated in accordance with clause 15, until the later of (as applicable): 
    1. completion of all of the Workshops in accordance with the Contract Details and this agreement; or
    2. the expiry of the Licence Period.

4. Smiling Mind Obligations 

  1. We must provide the Services in accordance with the Contract Details.
  2. We will take into account any reasonable requests by you in connection with the Services but are under no obligation to create new content (including on the App) or tailor any Services or content (including any Workshop or on the App) specifically for you.
  3. To the extent that we and any of our Personnel are present at your premises, we must comply (and must ensure that our Personnel comply) with any reasonable directions made by you and your policies regarding security and occupational health and safety as notified to us by you.

5. Customer's obligations 

  1. You must provide all assistance reasonably required by us to deliver the Services.
  2. You must comply (and must ensure that your Personnel comply) with any reasonable directions of us and our policies regarding security and occupational health and safety as notified to you by us.
  3. You must indemnify us and our Personnel (those indemnified) and will hold those indemnified harmless, 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:
    1. a breach by you of this agreement; or
    2. any loss of or damage to any property or injury to any person caused by any negligent or fraudulent act or omission or wilful misconduct of you or any of your Personnel.

6. Payment 

6.1 Service Charges and Invoices

  1. The Service Charges that we may charge you for the provision of the Services are set out in the Contract Details.
  2. You must pay all Service Charges within the time periods in the Contract Details or as set out in an applicable invoice (without set off, withholding or deduction). In the event of any inconsistency, the time periods in the applicable invoice shall prevail.
  3. We are under no obligation to provide the Services (or any part of the Services) prior to payment in full of any issued invoice.
  4. In the event any issued invoice is outstanding for more than 30 days after the due date for payment, in addition to our rights set out in clause 15, we reserve the right to charge interest on such overdue amounts, calculated daily at the Westpac Bank Indicator Rate plus 2% per annum from the due date until the outstanding amount is paid.
  5. Each invoice issued by us under this agreement must be a tax invoice within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

7. Workshops 

  1. This clause applies in the event the Services include Workshops (as set out in the Contract Details).
  2. We reserve the right to cancel, postpone or reschedule any Workshop if, acting reasonably, we consider we are unable to perform our obligations in connection with such Workshop.
  3. We will reschedule the Workshop to a mutually acceptable date, time and location.
  4. You may cancel, postpone or request to reschedule any Workshop on no less than 2 weeks' written notice to us.
  5. If you cancel, postpone or request to reschedule any Workshop on more than 2 weeks' written notice and do not reschedule the Workshop to a mutually acceptable date:
    1. you will not be entitled to a refund of the Deposit or any other amounts paid to us in respect of Ancillary Costs; but
    2. you will not be required to pay the Balance.
  6. If you cancel, postpone or request to reschedule any Workshop on less than 2 weeks' written notice and do not reschedule the Workshop to a mutually acceptable date, you:
    1. will not be entitled to a refund of any amounts (Deposit, Balance or Ancillary Costs) paid by you in connection with the applicable Workshop; and
    2. must pay to us within 7 days of invoice, the outstanding Balance for such Workshop plus any Ancillary Costs incurred in connection with such Workshop by us but not yet invoiced.

8. GST

8.1 Defined terms

In this clause, a word or expression defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the meaning given to it in that Act.

8.2 GST inclusive amounts

For the purposes of this agreement, where the expression GST inclusive is used in relation to an amount payable or other consideration to be provided for a supply under this agreement, the amount or consideration will not be increased on account of any GST payable on that supply.

8.3 Consideration GST inclusive amounts

Any consideration to be paid or provided for a supply made under or in connection with this agreement, unless specifically described in this agreement as GST inclusive, does not include an amount on account of GST.

8.4 Gross up of consideration 

Despite any other provision in this agreement, if a party (Supply Maker) makes a supply under or in connection with this agreement on which GST is imposed (not being a supply the consideration for which is specifically described in this agreement as GST inclusive):

  1. the consideration payable or to be provided for that supply under this agreement but for the application of this clause (GST exclusive consideration) is increased by, and the recipient of the supply (Recipient) must also pay to the Supply Maker, an amount equal to the GST payable by the Supply Maker on that supply; and
  2. the amount by which the GST exclusive consideration is increased must be paid to the Supply Maker by the Recipient without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.

8.5 Reimbursement (net down) 

If a payment to a party under this agreement is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense.

9. Intellectual Property Rights 

9.1 Ownership of Intellectual Property Rights

You agree that all rights, title and interests (including all Intellectual Property Rights throughout the world) in material or documents created by us or provided by us to you under this agreement, including, without limitation, the App and the Documentation, (SM IPR), will remain our property.  Except to the extent expressly provided in the Contract Details or this agreement, you are not granted any right, title or interest in the SM IPR.

10. Confidential Information 

10.1 Use and disclosure

  1. A Receiving Party:
    1. may use Confidential Information of the Disclosing Party only for the purposes of this agreement; and
    2. must keep confidential all Confidential Information of the Disclosing Party except:
      1. (in the case of you) to the extent required to enjoy the benefit of the Services;
      2. for disclosures permitted under this clause 10; and
      3. to the extent (if any) the Receiving Party is required to disclose any Confidential Information by Law.
    3. Use and disclosure of Confidential Information
  2. A Receiving Party may disclose Confidential Information of the Disclosing Party to persons who:
    1. have a need to know for the purposes of this agreement (and only to the extent that each has a need to know); and
    2. before disclosure:
      1. in the case of the Receiving Party's officers and employees, have been directed by the Receiving Party to keep confidential all Confidential Information of the Disclosing Party; and
      2. in the case of other persons, have agreed in writing with the Receiving Party to comply with substantially the same obligations in respect of Confidential Information of the Disclosing Party as those imposed on the Receiving Party under this agreement,
        (each a Direction).

10.2 Receiving Party's obligations 

A Receiving Party must:
  1. ensure that each person to whom it discloses Confidential Information of the Disclosing Party under clause 10.1(b) complies with its Direction; and
  2. notify the Disclosing Party of, and take all steps to prevent or stop, any suspected or actual breach of a Direction.

11. Privacy

  1. Each party agrees to be bound by applicable privacy and data protection Laws, including the Privacy Act 1988 (Cth), with respect to any act done or practice engaged in by either party for the purposes of this agreement.
  2. Each party must (and must ensure that our Personnel) comply with any applicable privacy or data protection Laws and all guidelines issued by applicable privacy offices (and any similar regulatory bodies).
  3. We may (if you reasonably request) provide you with the names of your employees who attend Workshops we perform for you or redeem licences to the App. We may also provide you with de-identified data (reasonably requested by you) regarding your employees' use of the App such as usage trends, meditation minutes and self-reported wellbeing measures. 

12. Remedy for breach of confidentiality or privacy obligations 

Each party acknowledges that damages may be an insufficient remedy for a breach, or suspected breach by the Receiving Party of its obligations under clauses 10 or 11, and agrees that the Disclosing Party may seek such equitable relief (including injunctive relief) as is necessary to remedy or prevent such breach without having to prove or establish any special damage arising from such breach or suspected breach.

13. Warranties

  1. Each party warrants and represents that:
    1. its signing, delivery and performance of this agreement will not constitute (1) a violation of any judgement, order or decree, (2) a material default under any material contract by which it or any of its assets are bound, or (3) an event that would, with notice or lapse of time, or both, constitute such a default; and
    2. it has the requisite power and authority to enter into this agreement and to carry out the obligations contemplated by this agreement.
  2. You acknowledge and agree that the provision of the Services in accordance with this agreement constitutes the provision of educational services only and we are not, for the avoidance of doubt, providing any medical or psychological services to you or your Personnel.

14. Liability 

14.1 No exclusion or limitation

  1. To the extent that you acquire goods or services from us as a consumer within the meaning of the Australian Consumer Law, you may have certain rights and remedies (including, without limitation, consumer guarantee rights) that cannot be excluded, restricted or modified by agreement.
  2. Nothing in this clause 14 operates to exclude, restrict or modify the application of any implied condition or warranty, provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law or any other statute where to do so would:
    1. contravene that statute; or
    2. cause any term of this agreement to be void,
      (Non-excludable Obligation).

14.2 Exclusion of implied obligations

Except in relation to obligations outlined in clause 14.1, all conditions, warranties, guarantees, rights, remedies, liabilities or other terms that may be implied by custom, under the general law or by statute are expressly excluded under this agreement.

14.3 Limitation of liability

  1. Except in relation to Non-excludable Obligations, our liability to you arising directly or indirectly under or in connection with this agreement or the performance or non-performance of this agreement and whether arising under any indemnity, statute, in tort (for negligence or otherwise), or on any other basis in law or equity is limited as follows:
    1. we will have no liability whatsoever to you for any loss, harm, damage, cost or expense (including legal fees), or in the nature of special, indirect or consequential loss or damage (including, without limitation, loss of profit or revenue, economic loss, loss of goodwill, loss of customers, loss under or in relation to any other contract, loss of capital, downtime costs, loss of or damage to reputation, loss of opportunity, loss of anticipated savings or benefits, loss of production, production stoppage or loss of data or use of data) or other claims for consequential compensation incurred by or awarded against you in relation to the Services or under or in any way connected with this agreement; and
    2. the aggregate of our liability to you is otherwise limited to an amount not exceeding the Service Charges paid by you under this agreement in the 12 months immediately preceding the date on which the claim giving rise to such liability arose.
  2. In relation to Non-excludable Obligations (other than a guarantee as to title, encumbrances or quiet possession conferred by the Australian Consumer Law), except for goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption (in respect of which our liability is not limited under this agreement), our liability to you for a failure to comply with any Non‑excludable Obligation is limited to:
    1. in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again;
    2. in the case of goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired; and
    3. in respect of the App, the repair or, if necessary, the replacement of the App; and the supplying again of any services supplied in connection with the App Licences under this agreement.

15. Termination

15.1 Termination for non-payment

In the event any issued invoice is outstanding for more than 30 days after the due date, we are entitled to terminate this agreement at any time (and to revoke any App Licences) during the term of this agreement.

15.2 Termination for cause

Either party may terminate this agreement immediately by notice in writing if the other party:

  1. breaches any term of this agreement that is not capable of remedy;
  2. breaches any term of this agreement that is capable of remedy and fails to rectify that breach within fourteen (14) days of receiving a notice from the other party requiring it to do so; or
  3. suffers an Insolvency Event.

15.3 Rights and obligations on expiry or termination

On the date of expiry or effective termination of this agreement:

  1. the licence granted terminates;
  2. you must immediately cease using (and must procure that all of your End Users immediately cease using) the App;
  3. you must within thirty (30) days of such termination send to us, or otherwise dispose of in accordance with our directions, all of our Confidential Information relating to the Services (including the Documentation) then in your (or your End Users') possession or control; and
  4. you acknowledge and agree that we may terminate the End Users' access to the App.

16. Force majeure 

  1. The non-performance or delay in performance by a party of any obligation in this agreement is excused during the time and to the extent that such performance is prevented by a circumstance or event beyond its reasonable control (Force Majeure Event), provided that the party affected by the Force Majeure Event uses all reasonable endeavours to perform as soon as possible its obligations under this Agreement (including by the use of reasonable workarounds and interim measures).
  2. This clause 16 does not apply to any obligation to pay money.

17. Dispute resolution 

17.1 No court proceedings unless procedure followed

The parties agree to submit to binding arbitration, rather than court proceedings (except proceedings seeking interlocutory relief), in accordance with this clause 17.

17.2 Negotiations

The parties must attempt to resolve any dispute, difference of opinion or question arising out of this Agreement (Dispute) by referring the Dispute to suitable representatives and engaging in good faith negotiations.

17.3 Mediation if procedure fails

If the parties cannot resolve the Dispute under clause 17.2 within 10 Business Days (or such longer period as agreed between the parties) after the Dispute is referred to them, then the parties must proceed to mediation in accordance with clause 17.4 if the Dispute is not resolved.

17.4 Mediation

  1. The mediator must be jointly nominated by the parties within five Business Days of the end of the period set out in clause 17.3. In the absence of agreement between the parties, the mediator is to be nominated by the President for the time being of the Law Institute of Victoria (or his or her nominee).
  2. Subject to the availability of the mediator, the parties must meet with the mediator within five Business Days of the appointment of the mediator.
  3. The mediator will have authority to determine the procedure and timetable for any exchange of documents and any other information, procedural rules and such other steps as may seem appropriate to the mediator for the better resolution of the Dispute.
  4. The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement is to attempt to settle the Dispute between the parties, and no party may use any information or documents obtained through the dispute resolution process established by this clause 17 for any purpose other than an attempt to settle such Dispute.
  5. The mediator will not have the power to bind the parties to any determination, but will seek to have the parties resolve the Dispute by agreement.

17.5 Release if other party breaches

If a party breaches this clause 17 in relation to a Dispute, the other party need not comply with this clause 17 in relation to that Dispute.

17.6 Obligations continue

The parties must continue to perform their respective obligations under this Agreement pending the resolution of a Dispute.

17.7 Costs

Each party must pay its own costs of complying with this clause 17.

18. Notices and other communications

  1. A notice, demand, consent, approval or communication under this agreement (Notice) must be:
    1. in writing, in English and signed by a person duly authorised by the sender; and
    2. hand delivered or sent by prepaid post or email to the recipient's address for Notices specified in the Details, as varied by any Notice given by the recipient to the sender.
  2. A Notice given in accordance with clause 18(a) takes effect when taken to be received (or at a later time specified in it), and is taken to be received:
    1. if hand delivered, on delivery;
    2. if sent by email, at the time and date at which the sender's email system records that the email was successfully delivered to the recipient without receipt of a delivery failure message; or
    3. if sent by prepaid post, on the second Business Day after the date of posting (or on the seventh Business Day after the date of posting if posted to or from a place outside Australia),

    but if the delivery, receipt or transmission is not on a Business Day or is after 5.00pm on a Business Day, the Notice is taken to be received at 9.00am on the next Business Day.

19. Variations 

  1.  We may vary this agreement from time to time by notice in writing to you (including by email). If the change is likely to: 
    1. benefit you or have a neutral or minor detrimental impact on you - the change will be effective upon such notification; or
    2. have a significant detrimental impact on you - the change will be effective 10 days after we notify you.
  2. (b) If you do not accept a change made by us to this agreement, you may terminate this agreement by notice in writing to us to that effect (in which case you and your Personnel must immediately cease using the App and we will not be required to provide any further Workshops).

20. General

  1. Neither party may assign any of its rights or purport to novate any of its obligations arising out of this agreement to a third party without the other party's prior written consent.
  2. Each party must pay its own costs of negotiating, preparing and executing this agreement.
  3. Any indemnity or any obligation of confidence under this agreement is independent of, and survives termination of, this agreement. Any other term by its nature intended to survive termination of this agreement survives termination of this agreement, including clauses 9, 10, 14, 17, 18 and 19.
  4. This agreement may be executed in counterparts. All executed counterparts constitute one document.
  5. The rights and obligations of the parties under this agreement do not merge on completion of any transaction contemplated by this agreement.
  6. Each party must do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to this agreement and any transaction contemplated by it.
  7. A provision or part of a provision of this agreement that is illegal or unenforceable may be severed from this agreement and the remaining provisions or parts of the provisions of this agreement continue in force.
  8. A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy.  A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
  9. Except where this agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.
  10. We hold the benefit of each indemnity, promise and obligation in this agreement that benefits us or our Personnel, on our own behalf and on trust for our related bodies corporate and Personnel.
  11. This agreement is governed by the law of Victoria, Australia, and each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Victoria. The App, the Workshop and the Workshop Materials may be accessed throughout Australia and overseas. We make no representation that the App, the Workshop or the Workshop Materials comply with the laws of any country outside Australia. If you access the App, the Workshop or the Workshop Materials from outside Australia, you do so at your own risk and are responsible for complying with the laws in the place where you access the App, the Workshop and the Workshop Materials (as applicable). To the extent permitted by law, we exclude all liability for any failure of the App, the Workshop or the Workshop Materials to comply with the laws of any jurisdiction outside of Australia.
  12. The documents listed in clause 2.1 constitute the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.

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