Positive APAC Terms of Engagement

1.1 These Terms of Engagement (Terms) apply to all sales and supplies made by Positive Group Pty Ltd ACN 657 215 177, an Australian company of OPC, Level 1, 25 Burwood Road, Hawthorn VIC 3122 (Positive APAC, we, us) to you (Client, you).

1.2 In these terms, references to 'you' or 'your' are references to the entity engaging us to perform the Services as set out in the Order. The individual who enters these Terms confirms that it has the authority to enter into these Terms on your behalf and in doing so will bind you to these Terms.

1.3 The following Terms apply to the Services, and you will be bound to these Terms and the relevant Order from the earlier time that you:

(a) sign an Order;

(b) confirm in writing (by any means including by email) that you agree an Order;

(c) instruct us to conduct work for you (including instructing us orally); or

(d) use the Services.

1.4 We reserve the right to change these Terms at any time on 30 days’ written notice to you. If you do not agree to the changes you must stop using our Services, otherwise your continued use of a Service will constitute acceptance of the updated Terms. If the changes significantly affect your access to the Services and you do not agree to the changes, the provisions of clause 14 shall apply.

2.1 In these Terms, the following words have the following meanings:

Australian Consumer Law: Schedule 2 of the Competition and Consumer Act 2010 (Cth);

Australian Privacy Law: Privacy Act 1988 (Cth);

Business Day: a day other than a Saturday, Sunday or public holiday in Sydney, New South Wales when banks in Sydney are open for business;

Client: the person that has engaged Positive APAC to provide the Services, pursuant to the relevant Order and these Terms;

Client Content: all material uploaded to Positive NOW by you and your Users including comments in our forums, and all documents shared and materials you provide to us in order to assist us to provide the Events and/or the Insights Report;

Confidential Information: has the meaning given to it in clause 12;

UK Data Protection Legislation: any laws and regulations of the UK relating to the processing of personal data including the Data Protection Act 2018 and the UK General Data Protection Regulation;

Digital Content: the content in Positive NOW that we have agreed to permit you and/or your Users to access;

Event: means the live or virtual event/s that we have agreed to provide to you, which include an Open Event (where applicable);

Event Materials: any materials provided to you and the Users relating to the Event whether in hard copy or electronic form;

Fee: the fees due for the Services;

GST: goods and services tax imposed by GST Law;

GST Law: has the meaning given in the A New Tax System (Goods and Services) Tax Act 1999 (Cth);

Insights Report: a report prepared by us containing information about your business reflecting the content we have agreed to include;

IP Rights: all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these intellectual property rights include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

Order: an order for Services in the form we provide;

Open Event: a live and/or virtual event hosted by us and open to multiple organisations or individuals;

Personal Information: has the meaning given to it in the Australian Privacy Law;

Positive NOW: the mental wellbeing SAAS platform through which we render the Services;

Positive APAC: Positive Group Pty Ltd ACN 657 215 177;

Positive Australia Privacy Policy: Positive Australia's privacy policy from time to time, found on our website here;

Positive UK: Positive Health Strategies Limited;

Positive UK Privacy Policy: Positive UK's privacy policy from time to time, linked here;

Service: the provision of and access to the Digital Content, Positive NOW and provision of Insights Reports and Events and any other services rendered by Positive APAC, as specified in an Order;

Start Date: the date we send you a registration link to access Positive NOW;

Tax Invoice: an invoice rendered pursuant to the GST Law;

Users: you, your directors, officers, employees, staff and/or students (as the case may be) that we expressly authorise (e.g. in an Order) to access the Services;

WHS: work, health and safety;

WHS Legislation: the WHS legislation with respect to WHS applicable in the jurisdiction that the Services are delivered.

2.2 Words in the singular include the plural and in the plural include the singular.

2.3 The headings shall not affect the interpretation of these Terms.

2.4 Unless a right or remedy of a party is expressed to be an exclusive right or remedy, the exercise of it by a party is without prejudice to that party’s other rights and remedies.

2.5 Words 'including', 'for example', 'such as' or any other form of those words are not words of limitation;

2.6 A reference to a statute includes any regulations or other instruments made under it (delegated legislation) and a reference to a statute or delegated legislation or a provision of either includes consolidations, amendments and replacements.

3.1 The Client will order the Services by way of a written Order describing:

(a) the Services to be provided;

(b) the number of Users who will have access to the Services;

(c) Fees to be paid by the Client; and

(d) any other relevant instructions, information or special terms.

3.2 An Order will be binding from the earlier time that you:

(a) sign the Order;

(b) confirm in writing (by any means including by email) that you agree the Order;

(c) instruct us to conduct work for you (including instructing us orally); or

(d) use the Services.

Once placed, an Order cannot be cancelled without our prior written agreement.

4.1 Subject to your compliance with these Terms, we grant you and your Users the right to access and use the Digital Content for your normal business purposes, or where you are a consumer, for your personal use and where you are an educational establishment, for your non-commercial educational purposes. This right is non-exclusive, non-transferable and limited by and subject to restrictions set out in these Terms and the relevant Order.

4.2 Unless otherwise expressly set out in an Order and subject to your compliance with these Terms, access to the Digital Content shall continue for a period of 12 months from the Start Date.

4.3 You shall, and shall procure that your Users shall, maintain the security and confidentiality of the credentials used to access the Digital Content and you shall, and shall procure that your Users shall, not permit or assist anyone else to access the Digital Content through the credentials. You must immediately notify us of any User who ceases to be engaged by you as director, officer, employee or staff, or who is otherwise no longer to be permitted access to the Digital Content for whatever reason and such User’s credentials shall be deactivated. You are responsible for ensuring User compliance with these Terms and accept responsibility and liability for the acts and omissions of your Users.

4.4 The Digital Content and Positive NOW must not be used for any unauthorised or unlawful purpose. In particular, you agree not to:

(a) attempt to gain unauthorised access to any networks, servers or computer system connected to the Digital Content or Positive NOW;

(b) make for any purpose any modifications, adaptions, additions or enhancements to the Digital Content or Positive NOW;

(c) sublicence, reproduce, redistribute, sell, create derivative works from, decompile, reverse engineer, or disassemble all or part of the Digital Content or Positive NOW (except to the extent expressly permitted by law and not capable of exclusions);

(d) attempt to interfere with the proper working of the Digital Content or Positive NOW and, in particular, attempt to circumvent security, licence control or other protection mechanisms, or tamper with, flood, hack into or otherwise disrupt the Digital Content or Positive NOW;

(e) remove any copyright notices or trade mark statements from the Digital Content or Positive NOW; and/or

(f) use or access the Digital Content or Positive NOW to build or support, and/or assist a third party in building or supporting, products or services competitive to us.

4.5 The Client undertakes to keep in place adequate security measures and up-to- date firewalls to protect the Digital Content and Positive NOW from any viruses, harmful code or unauthorised access. We shall not be responsible for, and you covenant that you will not undertake, any unauthorised access to the Digital Content or Positive NOW by means of reverse engineering, copying, hacking, jailbreaking or any unauthorised access with intent to commit or facilitate the commission of any excessive use, offence or any unauthorised modification or infringement of the intellectual property in the Digital Content or Positive NOW by the Client or any User.

4.6 Unless otherwise expressly agreed in writing, all suggestions, solutions, improvements, corrections, and other contributions provided by the Client regarding the Services, any of our software (including in the Digital Content and Positive NOW) or any of our other materials and documents provided to the Client will be owned by us, and the Client hereby agrees to assign any such rights to us. Nothing in these Terms will preclude us from using in any manner or for any purpose (we deem necessary) the know-how, techniques, and procedures acquired or used by us in the performance of Services or the delivery of our Software. We may freely use any anonymous or anonymised data that we learn, acquire or obtain in connection with your use of the Digital Content in order to improve, review and analyse our services and business generally.

4.7 We do not represent or warrant that the Digital Content will meet your requirements and you are therefore solely responsible for ensuring that the Digital Content is appropriate and suitable for your needs.

5.1 Subject to your compliance with these Terms, we shall use reasonable endeavours to make the Digital Content available at all times, but you acknowledge that there may be occasions when access to the Digital Content may be interrupted, including for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment. You shall promptly report any fault in access to the Digital Content to us and we shall endeavour to remedy the fault as soon as reasonably practical.

5.2 We reserve the right to remove any content or features from the Digital Content or Positive NOW for any reason, without prior notice, and shall have no liability or responsibility to you in any manner whatsoever in such circumstances, save to refund pro-rata any Fees paid in advance in respect of any content or features suspended or stopped that you previously accessed and used. We shall calculate such pro-rata refund at our sole discretion, provided that we shall act reasonably in doing so.

5.3 You must not act in a way which could risk overloading, impairing or damaging access to the Digital Content, Positive NOW or supporting infrastructure. If at any time your access to and/or use of the Digital Content or Positive NOW is excessive and as a result impacts on other clients’ ability to access the Digital Content or Positive NOW, we shall notify you and you shall promptly take appropriate steps to reduce and remedy such use. We reserve the right to increase the Fee due to any such excessive use.

5.4 You must not, and must procure that your Users do not, flood (including ping flood and denial of service style attacks), upload malware, spyware or other malicious software to Positive NOW, or use or access the Digital Content or Positive NOW using bots.

5.5 We will use reasonable efforts to maintain the availability of the Positive NOW and the Digital Content however we provide it “as is” and without any specific service level or uptime level. From time to time, we will have IT environment, infrastructure and network maintenance and issues to deal with and it may cause Positive NOW or the Digital Content to suffer downtime without being a defect or resulting in any refund to the Client.

5.6 The Client must not:

(a) use the Digital Content or Positive NOW for any application or software that replicates or attempts to replace the essential user experience of any Positive APAC software, app or website;

(b) attempt to cloak or conceal the Client’s identity or any user's identity when accessing or using Digital Content or Positive NOW;

(c) cache or store any content other than for reasonable periods in order to provide the service the Client is providing to its Users

(d) use the Digital Content or Positive NOW for or with any application that constitutes, promotes or is used in connection with spyware, adware, or any other malicious programs or code;

(e) use the Digital Content, Positive NOW or any software in a manner that adversely impacts the stability of Positive NOW or Positive NOW’s servers or adversely impacts the behaviour of other applications using the Positive NOW. Further, we reserve the right to rate limit, throttle or block applications that make a large number of calls to Positive NOW or Digital Content that are not primarily in response to direct user actions; or

(f) sell, lease, or sub-license Digital Content or Positive NOW or derive revenues from the use or provision of Digital Content or Positive NOW, whether for direct commercial or monetary gain or otherwise, without our prior written agreement.

6.1 If an Order includes us hosting an Event for you and/or your Users, the provisions of this clause 6 apply.

6.2 Unless otherwise agreed by the parties in writing or unless it is an Open Event, you shall arrange the location for any live Event and you shall ensure that all necessary facilities and equipment shall be made available to our presenters and the Users. You warrant and represent that the number of Users attending shall be no more in number than the legal number permitted at the location. Each of us shall comply with all health, safety and security rules that apply to the location for the live Event together with the provisions of the WHS Legislation in attending the live Event.

6.3 Events may be delivered virtually on our platform for up to 500 Users. If the number of Users exceeds 500 you shall notify in advance as soon as possible and the parties shall agree an appropriate online platform, at your cost. If the Event is delivered virtually on your platform, you agree that we can we have no liability for any unavailability of access to, or poor access to, the Event.

6.4 If the Event is a virtual event, then the provisions of clauses 3, 4 and 5 shall apply in addition to all content viewed at the Event.

6.5 Subject to the terms of your Order and you paying the applicable Fees on time, we grant you and the Users the right to access and use the Event Materials for your normal business purposes, or where you are a consumer, for your personal use and where you are an educational establishment, for your non-commercial educational purposes. This right is non-exclusive, non-transferable and limited by and subject to restrictions set out in these Terms.

6.6 No recording or photographs may be made of all or part of an Event without our prior written consent.

6.7 If either party wishes to postpone an Event, it must notify the other party as soon as reasonably practical and we shall work together to agree a revised date. If together we are unable to agree a revised date, we shall refund to you the Fee paid for the Event in accordance with clause 6.8 less any third party expenses we have incurred that cannot be cancelled in accordancåe with clause 6.9. You may not postpone an Open Event.

6.8 If you wish to cancel or postpone an Event, or cancel your participation in an Open Event, you must notify us as soon as reasonably practical, and subject to clause 6.9, the following payment terms apply depending on when you notify us:

(a) up to 30 days prior to the first day of the Event, you shall pay 100% of the Fee due for the Event;

(b) then, 31 to 60 days prior to the first day of the Event, you shall pay 50% of the Fee due for the Event;

(c) then, 61 to 90 days prior to the first day of the Event, you shall pay 25% of the Fee due for the Event; and

(d) more than 90 days prior to the Event, and no Fee shall be due for the Event.

6.9 If you request to postpone or cancel an Event, we shall use our endeavours meet your request and, where we can, obtain a refund for any expenses reasonably incurred by us in respect of the Event. In such circumstances, we will charge for Services up to the date of your cancellation request, and charge for fees and costs that we have incurred or that we cannot withdraw from (including third party supplies).

6.10 If you wish to change a live Event to a virtual Event (in the absence of any legal restrictions on live Events) you must notify us as soon as reasonably practical, and the following payment terms apply depending on when you notify us:

(a) up to 40 days prior to the first day of the Event, you shall be liable for the Fee due for the live Event;

(b) more than 40 days prior to the Event, you shall be liable for the Fee due for the virtual Event, and where necessary, we shall refund you the difference between the Fee due for the live Event and the Fee due for the virtual Event.

6.11 If we are required to postpone an Event for any reason, we shall notify you as soon as reasonably practical and we shall work together to agree a revised date. If we are unable to do so, we shall refund you the Fee paid for the Event that we postpone.

6.12 For the purposes of clauses 6.8 and 6.10 the Fee due for an Event is as set out in our quote, except for a Positive Leaders Pillar where the Fee is AUS$11,700.

7.1 If expressly included in the Order, we will provide you with an Insights Report.

7.2 Notwithstanding clause 14, once an Order is entered into, you may not cancel the Insights Report.

7.3 We shall use our reasonable endeavours to deliver the Insights Report to you in accordance with any timetable we have agreed, provided that time shall not be of the essence.

7.4 From time to time, at our request, you shall provide such Client Content as agreed or as we reasonably require properly to prepare the Insights Report. If you fail to comply with this requirement, we shall discuss with you the impact on our ability to prepare the Insights Report and the Fee, and we shall each act reasonably to agree any adjustment to the Fee to reflect any resulting increase in the Services required to prepare the Insights Report.

7.5 Unless we otherwise agree in writing, we grant you and the Users the right to access and use the Insights Report for your normal business purposes. This right is non-exclusive, non-transferable and limited by and subject to restrictions set out in these Terms.

8.1 Fees for the Services are set out in the Order and are payable on the terms set out in the Order. Unless otherwise stated in the Order, we will invoice by the end of each month. If the Order does not contain payment terms, payment in full will be due 30 days from the date of the invoice.

8.2 If you request Services in addition to those in the Order, or request to change the scope of the Services, we reserve the right to treat it as a variation and charge varied or increased Fees.

8.3 Fees are exclusive of GST and all other taxes. You must pay to us the GST amount (which will be specified in our Tax Invoice).

8.4 The Fee is also exclusive of disbursements, costs and expenses, such as call costs for virtual Events, and hotel, subsistence, travel and other ancillary expenses for live Events reasonably incurred by us in our provision of the Services. You will reimburse us for these costs, disbursements and expenses within 30 days of receipt by you of an invoice for the costs, disbursements or expense in question. Electronic evidence of costs, disbursements or expenses incurred can be provided on request.

8.5 We may increase the Fee for access to Digital Content with 30 days' prior written notice to you effective on renewal of each initial 12 month licence term (as set out in clause 4.2). We will inform you via email of any increase.

8.6 If any payment is not received full and cleared within 30 days of the date of the Tax Invoice, and without prejudice to any other rights and remedies available to us, we may:

(a) suspend or terminate our provision of, and your access to, the Services in part or in full; and

(b) charge interest on unpaid amounts that are overdue. The interest rate payable is equal to the Westpac Business Development Rate (base rate for Westpac Business Loans) plus 2%, calculated from the day the invoice was overdue.

9.1 Data uploaded by the Client is owned by the Client and/or the relevant individual User (or their licensors) - it is not owned by us. The Client shall:

(a) be responsible and liable for securing all relevant consents from entities and individuals for the purpose of storing, accessing and using their data (including Personal Information) with the Digital Content and Positive NOW (including our access to perform Services);

(b) collect, upload and update Personal Information to the database allocated to the Client in an accurate and up-to-date manner;

(c) keep safe and secure all login details, passwords and security of access to the Positive NOW and Digital Content;

(d) ensure that only authorised recipients of the Client use, obtain copies of, or have access to Client data;

(e) comply with any requirements or restrictions imposed on the use of Client data and Personal Information by their respective owners, Client privacy policies and by law. In all cases, the Client is solely responsible for making use of such data in compliance with the applicable Client’s requirements, obligations and restrictions;

(f) remove from the Digital Content or Positive NOW any Personal Information that an individual User asks the Client to remove within 24 hours; and

(g) notify us without undue delay (and in any event within 48 hours), of any request for information from or complaint by a regulatory authority in relation to the privacy or security of Client data on our database.

9.2 The Client grants us a non-exclusive, royalty-free licence to access, use, reproduce, edit, modify, perform, display and distribute Client data as is reasonable or necessary for us to provide the Digital Content, Positive NOW and other Services under these Terms.

9.3 It is a condition of these Terms, and you warrant and represent that, the Client Content will not:

(a) breach the provisions of any law, statute or regulation including any data protection or privacy law or regulation;

(b) infringe an IP Right or other legal right of any person;

(c) be made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence;

(d) contain any Personal Information unless you have the right under the Australian Privacy Law to allow us to use such Personal Information for the provision of the Services;

(e) be deliberately or knowingly false, inaccurate or misleading; or

(f) give rise to any cause of action against us.

(g) contain harassing, bullying or intimidating content.

9.4 You represent and warrant that you have the relevant consents to transfer the Client Content to us for our use in the Services.

9.5 You grant to us the non-exclusive right and licence to use, edit, publish and distribute the Client Content to provide the Services to you. You agree that third parties may also have access to your Client Content as follows:

(a) your Users may access Client Content within: (i) the Insights Report and/or Event Materials; and (ii) within the Digital Content if it has been provided within forums or other Digital Content clearly accessible only by you and your Users; and

(b) any third party may access Client Content where the Service is expressly to be accessed by any other organisation or individual.

9.6 To the full extent permitted at law, we are not responsible for and accept no liability for Client Content. You shall indemnify and keep indemnified us, our officers, directors, employees, staff and contractors from and against all costs, claims, losses, expenses, fines and damages that we may suffer or incur as a result of the use of the Client Content in accordance with these Terms, including any privacy claims or any third party claim for infringement of IP Rights.

9.7 In the event of any loss or damage to Client Content, your sole and exclusive remedy shall be for us to use reasonable commercial endeavours to restore the lost or damaged Client Content from the latest back up of such Client Content maintained by us. You acknowledge and agree that this process will overwrite the Client Content stored on Positive NOW prior to the restoration. Accordingly, you shall separately maintain up-to-date copies of the Client Content.

10.1 The Insights Report, the Digital Content and any materials or documents we provide to you are owned by us or have been licensed to us. You may not copy, distribute or otherwise use any of our IP Rights except as set out in these Terms or without our prior written consent. If you do so, you shall indemnify and keep indemnified us, our officers, directors, employees, staff and contractors from and against all losses, costs, claims, expenses, fines and damages that we may suffer or incur as a result of such unauthorised use.

10.2 You and your licensors (as relevant) shall remain the owner of all IP Rights in the Client Content.

10.3 You shall promptly notify us of any claim, demand, notification or allegation that you receive that your use of the Services infringes the IP Rights of any third party (IP Claim). This clause 10.3 does not apply to any claim in respect of the Client Content. You shall:

(a) not make any admission of liability, agreement, settlement or compromise in relation to an IP Claim without our prior written consent (and may do so only to the extent we consent in writing);

(b) give to us and our professional advisers all reasonable assistance as may be required in relation to an IP Claim;

(c) at our request, give us the exclusive control and right to defend a Claim and make settlements in relation to an IP Claim; and

(d) mitigate your losses in relation to a Claim, including where requested to do so by stopping using the Services.

10.4 On receipt of a notice of an IP Claim, we shall at our sole expense and discretion either:

(a) defend the IP Claim;

(b) procure for you the right to continue accessing and using the Services; and/or

(c) modify or replace the infringing part of the Services to avoid the infringement.

11.1 Either party shall be entitled to publicise the existence of their relationship under these Terms including in marketing material, which may be a press release, media alert, blog, video, or other form of disclosure.

11.2 In exercising its rights under clause 11.1, a party must not do anything that will damage the reputation of the other party or bring that other party into disrepute.

12.1 Confidential Information shall mean all information either marked as confidential or by its nature is confidential whether written or oral and in whatever medium and relates to the business, products, financial and management affairs, clients, or authorised agents, plans, proposals, strategies or trade secrets disclosed by one party (the Disclosing Party) to the other party (the Receiving Party).

12.2 The Receiving Party shall only disclose the Disclosing Party’s Confidential Information:

(a) to those of its officers, directors, employees and representatives, to the extent that they need to know the same in order to carry out their obligations under these Terms; or

(b) to a court, government or administrative authority competent to require disclosure of the Confidential Information,

and may only do so where those parties are bound by written obligations of confidentiality and non-use, and such obligations apply to the Confidential Information disclosed to them.

12.3 The provisions of clauses 12.1 and 12.2 shall not apply to any Confidential Information which:

(a) is or becomes generally available to the public other than as a result of any act or omission of the Receiving Party; or

(b) is already in or comes into the possession of the Receiving Party from a person lawfully in possession of the information and owing no obligation of confidentiality to the Disclosing Party in respect of the information.

13.1 You acknowledge that we determine the Personal Information that is required to provide the Services and we determine how we use a such Personal Information in order to provide the Services. In particular, each User is required to create their own account to access Digital Content. We will access and use such Personal Information in accordance with Australian Privacy Legislation and our Australian Privacy Policy.

13.2 You acknowledge and agree that we may transfer your Personal Information to our databases in the United Kingdom controlled by Positive UK (our parent company). Any Personal Information that is transmitted to the United Kingdom pursuant to this clause 13.2 will be handled by Positive UK, pursuant to the Positive UK Privacy Policy and Data Protection Legislation.

13.3 Subject to the provisions of clause 9.3(d) you should not send to us any Personal Information unless we ask you to do so.

14.1 You may end our engagement by giving 30 days' written notice at any time. If you do this, you must pay all Fees incurred and all disbursements committed to up to that time.

14.2 Without prejudice to any other rights or remedies which may be available to it, either party shall be entitled to give notice in writing to the other party terminating the Services with immediate effect if:

(a) the other party commits any material breach of any of the terms of these Terms and if such breach is capable of remedy fails to remedy that breach within 14 days of being notified of the breach; or

(b) the other party enters into liquidation compulsorily or voluntarily or compounds with its creditors or has an administrator, receiver or administrative receiver appointed over all or any part of its assets or takes or suffers any similar action in consequence of debt (except where any action occurs for the purposes of reconstruction or amalgamation whilst solvent).

14.3 If we cease to provide the Services pursuant to this clause 14 for any reason:

(a) you must pay Fees to the date when we cease to provide the Services;

(b) you must pay disbursements and third party expenses that have been committed to;

(c) you will no longer have access to the Digital Content, Positive NOW; and

14.4 We may suspend these Terms:

(a) under clauses 14.2(a) or 14.2(b); or

(b) if you do not pay any Tax Invoice when due.

14.5 Upon termination the Services for any reason you may no longer access the Digital Content, and we shall have no obligation to provide the Services. In addition, you acknowledge that your Client Content may be deleted.

15.1 We warrant that we will provide the Services using reasonable skill and care and in accordance with all applicable laws. However, you agree that the Digital Content, the Event Materials and the Insights Report do not constitute any form of advice (including any psychological, medical or allied health service or advice), recommendation or arrangement and shall not be relied upon in making (or refraining from making) any specific investment or other business or personal decisions.

15.2 We warrant that we will comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption and we put in place, comply with and maintain codes of conduct and anti-bribery and anti-corruption policies as are appropriate to meet our statutory responsibilities.

15.3 To the full extent permitted by law, we do not warrant that the Services are fit for your particular purpose, nor that any particular result in relation to your business will be achieved or achievable as a result of the Services.

15.4 To the fullest extent permitted by law, we shall not be liable to you for any loss, damage or claim arising out of contract, equity, statute or otherwise where that loss is due to, or in connection with:

(a) loss of profits;

(b) loss of business;

(c) loss or corruption of data or information;

(d) business interruption;

(e) loss of or wasted staff or management time;

(f) any kind of special, indirect, consequential loss, pure economic loss or loss which does not naturally arise; or

(g) error, omission, failure to operate, loss or damage arising as a result of any error, omission or inaccuracy in the Client Content.

15.5 To the fullest extent permitted by law our total liability to you for all claims or series of claims under these Terms whether in contract, equity, negligence or otherwise for any damages, losses or expenses shall be limited to the Fee paid by you for the Services that are the subject of the claim in the 12 months preceding the date the claim arose.

15.6 To the fullest extent permitted by law, we do not make any warranty or representation to the Client or Users unless expressly provided for in these Terms.

15.7 Nothing in these Terms excludes, restricts or modifies any condition or warranty implied by the Australian Consumer Law, which cannot be lawfully excluded, restricted or modified.

15.8 Where we breach such a condition or warranty referred to in clause 15.7, our sole liability for breach is limited to one of the following as determined by us (where permissible under the Australian Consumer Law):

(a) in relation to goods:

(i) the replacement of the goods or the supply of equivalent goods or payment of the cost of replacing the goods or acquiring equivalent goods; or

(ii) the repair of the goods or payment of the cost of having the goods repaired;

(b) in relation to services:

(i) the re-supply of the services; or

(ii) the payment of the cost of having the services re-supplied.

15.9 Nothing in these Terms limits or excludes our liability for death or personal injury resulting from negligence, fraud, or any other liability that cannot lawfully be excluded by operation of laws in New South Wales.

16.1 If a party is unable wholly or in part, by reason of a Force Majeure Event to carry out any obligation under these Terms it shall promptly give notice to the other party specifying the Force Majeure Event and the likely duration of its inability to perform and that obligation shall be suspended so long as the Force Majeure Event continues. This does not apply to the obligation to make a payment.

16.2 Force Majeure Event means any matter outside the control of a party, or industrial action or blockade or embargo or any other form of civil disturbance (whether lawful or not), pandemic, pestilence, industry wide material shortages or component shortages, a major natural weather event, earthquake or any other natural disaster.

17.1 Notice under these Terms must be in writing, addressed to the address (including email address) last notified by the intended recipient to the sender. A notice is received when delivered personally or electronically.

18.1 We may subcontract for the performance of whole or any part of these Terms and the Services, provided that we shall ensure any subcontractor engaged by us shall comply with these Terms and we shall remain responsible and liable for the services performed by such subcontractors. For the avoidance of doubt, we may subcontract these Terms and Services, pursuant to clause 18.2, without requiring the Client's consent.

19.1 If any of the provisions of these Terms are found to be unlawful, invalid or otherwise unenforceable by any court or other authority, then such provision shall be deemed severed from the remainder of these Terms. The remainder of these Terms shall be valid and enforceable.

20.1 No failure or delay by us in exercising any of our rights under these Terms means that we have waived that right, and no waiver by us of a breach of any provision of these Terms means that we will waive any subsequent breach of the same or any other provision.

21.1 If a dispute arises, the parties undertake in good faith to use all reasonable endeavours to settle the dispute expeditiously.

21.2 Any dispute that cannot be resolved between the parties within 30 days of the dispute arising is to be initially mediated. Mediation is to be administered by the Australian Disputes Centre Limited (“ADC”), conducted in Sydney and held in accordance with the ADC Guidelines for Commercial Mediation.

21.3 The parties each agree to bear an equal share of the costs of the mediator.

21.4 If the dispute is not resolved following mediation, then the parties shall be entitled to pursue legal action.

21.5 This clause 21 does not apply to a party seeking interim or interlocutory relief.

22.1 These Terms shall be governed by, and subject to the non-exclusive jurisdiction of the courts of, New South Wales, Australia.

23.1 No amount owing by you to us may be set off against any liability by us to you (in each case whether present, future, actual, contingent or prospective).

23.2 A consent, approval, commitment, waiver or similar to be given by us only binds us to the extent that it is given by way of a written document signed by a director of Positive Group Pty Ltd.

23.3 All terms and conditions in respect of liability, indemnities, confidentiality, product warranties and disclaimers and any IP Rights shall survive termination of these Terms (however arising).

23.4 The Order and these Terms make up one agreement. Where a term of any Order is inconsistent with a term of these Terms, the Term in the Order will prevail to the extent of any inconsistency.

23.5 If any provision of these Terms is or becomes invalid, illegal or unenforceable, in whole or in part, then the provision will apply with whatever deletion or modification is necessary so that the provision is legal, valid and enforceable and gives effect to the commercial intention of the parties.

23.6 To the extent that it is not possible to delete or modify the provision, in whole or in part, under clause 23.5, then such provision or part of it will, to the extent that it is illegal, invalid or unenforceable, be deemed to not form part of this document.

23.7 You may not assign any part of these Terms or otherwise transfer any licence whether by operation of law, change of control, or in any other manner, without our prior written consent. Any purported assignment of such in violation of this clause will be deemed void. We may assign, in whole or in part, our rights, interests, and obligations without limitation.

23.8 References to any person include references to any individual, company, body corporate, association, partnership, firm, joint venture, trust and government. References to any party include references to its respective successors and permitted assigns.