Retention Track - Access Terms

1. About this agreement

1.1 Formation of this agreement

(a) This agreement is comprised of each Subscription and these Access Terms and applies to any use of the Platform by:

(1) the individual who agreed to these Access Terms by using the Platform; and

(2) any company, partnership or other entity specified in a Subscription,

all such persons being referred to throughout as the Customer.

(b) By accessing or using the Platform the Customer agrees that it must access or use the Platform only in accordance with these Access Terms and that it will be bound by these Access Terms.

(1) commences upon the first use of the Platform by any person forming part of the Customer (Start Date); and

(2) continues to apply to each and every use of the Platform by any person forming part of the Customer, whether pursuant to a Subscription Period or not, and including where a Subscription Period starts after a period where no Subscription Period was current.

1.2 Changes to Access Terms

(a) These Access Terms are current from 1 April 2025.

(b) Retention Track may change these Access Terms from time to time by bringing the updated terms to the Customer’s attention not less than 90 days prior to the updated terms taking effect.

(c) If the Customer does not agree with the updated terms, the Customer must notify Retention Track and the agreement will terminate in accordance with clause 8.2.

(d) By continuing to use the Platform for more than 90 days following a notice provided by Retention Track under clause 1.2(b), the Customer agrees that the updated terms will apply from the date specified by Retention Track in that notice.

2. Subscriptions

2.1 Subscription Periods

The Customer must only access and use the Platform pursuant to a Subscription Period that is current in accordance with this clause 2.

2.2 Evaluation subscription

(a) If a Subscription specifies that the Customer’s use of the Platform is for evaluation only, then:

(1) the Subscription Period for that Subscription is the period of 5 days from the Commencement Date;

(2) upon the expiry of the Subscription Period, this agreement will end. The Customer may enter into a new agreement for continued use of the Platform by purchasing a new Subscription;

(3) the Customer must access and use the Platform, and only allow any Authorised Users to access and use the Platform:

(i) only for the purposes of the Customer’s internal evaluation of the Platform; and

(ii) must not in any circumstances use the Platform to undertake any part of its business, including making any actual claims for retentions; and

(b) the Customer must indemnify Retention Track against any expenses, costs, loss (including Consequential Loss) or damage suffered or incurred in connection with any use of the Platform by the Customer or any Authorised User otherwise than in accordance with clause 2.2(a).

2.3 Per-contract subscription

If a Subscription is specified as a ‘per-contract’ subscription, then the Subscription Period allows the Customer to use the Platform in respect of the specified contract for the life of that contract.

2.4 Periodic subscription

(a) If a Subscription is specified as a periodic subscription, then:

(1) the Subscription Period is the period specified in a Subscription or, where not specified, the period of one month commencing on the Start Date;

(2) upon expiry of each Subscription Period, the Subscription Period renews for successive Subscription Periods of one month each, subject to clause 2.4(c) or earlier termination; and

(3) if, at least 5 days before the end of the current Subscription Period, either party notifies the other party in writing that the first party does not want the agreement to renew for a further Subscription Period, then the Subscription Period will expire at its then current expiry date.

3. Use of Platform

3.1 Intended Use

(a) The Platform is a workflow management tool intended to assist businesses in managing their claims for retention payments.

(b) The Platform:

(1) is provided as a tool to assist the Customer in administering its rights and entitlements in respect of any claims or payments dealt with by the Platform; and

(2) cannot, and is not intended to, replace the judgement or decision making of the Customer; and

(3) does not guarantee, and cannot be relied upon to ensure, compliance with any legislation or other legal requirements.

(c) The Customer must not rely on the Platform and any Platform Information to determine any rights, entitlements or course of action.

(d) The Customer must only use the Platform and use and disclose the Platform Information:

(1) in accordance with the User Manual;

(2) to inform or supplement its administration of the Customer’s business; and

(3) in conjunction with other relevant information and the independent judgement of appropriately qualified individuals using the Platform on the Customer’s behalf.

3.2 Platform Information

(a) Retention Track does not warrant that the Platform Information will be free from errors, accurate or complete and the Customer is responsible for verifying any Platform Information it intends to use for any purpose.

(b) By using the Platform, the Customer acknowledges that the Platform Information:

(1) may not be relied upon to determine whether the Customer has any rights or entitlements or whether any of the Customer’s claims or payments are valid; and

(2) is based on the use of, and data input into, the Platform by the Customer and its Authorised Users as well as third party information.

4. Provision of Services

4.1 The Platform

While any Subscription Period is current, Retention Track must provide the Customer with access to the Platform as required by the relevant Subscription:

(a) including the functionality set out in the User Manual; and

(b) in accordance with this agreement.

4.2 Operating Environment

(a) The Customer is solely responsible for supplying and maintaining the software, hardware, operating system, network connections and other operational requirements required in order to access the Platform.

(b) The Customer acknowledges and agrees that its failure to comply with clause 4.2(a) may affect its ability to successfully use the Platform.

4.3 Standard of Services

(a) Retention Track will use best endeavours to provide access to the Platform, but Retention Track does not warrant that such access will be uninterrupted or error free.

(b) Despite anything else in this agreement, the Customer acknowledges and accepts that the Platform may not be, and the Customer cannot rely upon the Platform being, available at all times.

4.4 Changes to the Platform

(a) Retention Track may make changes to the Platform at any time. Where such changes will materially reduce or remove functionality of the Platform, Retention Track must provide at least 90 days’ notice to the Customer prior to the changes taking effect.

(b) If any changes specified by Retention Track materially reduces or removes functionality of the Platform used by the Customer and the Customer does not agree to continue using the Platform following the changes, then the Customer must notify Retention Track and the agreement will terminate in accordance with clause 8.2.

(c) By continuing to use the Platform for more than 90 days following a notice provided by Retention Track under clause 4.4(a), the Customer agrees to use the Platform following the changes specified by Retention Track in that notice.

4.5 Subcontractors

(a) Retention Track may provide the Platform itself or through any subcontractor.

(b) If Retention Track uses subcontractors to provide the Platform:

(1) the Customer must provide to the subcontractor the same assistance, information, access, rights and benefits (other than payment of any money) that it is required to grant to Retention Track in connection with the Platform; and

(2) a reference to Retention Track’s systems includes the subcontractor’s system.

5. Conditions of access to the Platform

5.1 Conditions of access

(a) The Customer must use the Platform:

(1) for appropriate purposes and only in accordance with the Intended Use;

(2) in accordance with this agreement and the User Manual; and

(3) in accordance with all applicable Laws.

(b) The Customer must:

(1) not allow any person other than an appropriately qualified Authorised User to access or use the Platform;

(2) prevent unauthorised access to or use of the Platform;

(3) notify Retention Track promptly of any such unauthorised use or access of the Platform; and

(4) ensure that each Authorised User complies with the requirements of this clause 5 as if a reference to the Customer was a reference to the Authorised User.

5.2 The Customer’s use of the Platform

(a) The Customer must ensure that each Authorised User does not use the Platform, (including the Platform Information):

(1) for any unlawful purpose, or in breach of any applicable laws or regulations;

(2) to harm another person in any way; or

(3) to engage in any conduct that is, or is likely to be, misleading or deceptive.

(b) The Customer is responsible for all of the Customer’s and each Authorised User’s activity on and in connection with the Platform (including all Customer Data) and all activity that occurs in the Platform through the Customer’s and each Authorised User’s login details.

(c) The Customer is responsible for how the Customer and each Authorised User interprets or uses the Platform, the Platform Information and Customer Data, and any actions the Customer and any Authorised User may take as a result of such use of the Platform.

(d) The Customer remains responsible for any breach of contract or infringement of any intellectual property, privacy, confidentiality or other rights of any third party in connection with Customer Data or that is caused or contributed to by the Customer’s or any Authorised User’s use of the Platform.

5.3 Restrictions on use

The Customer must not:

(a) insert or activate, or permit a third party to insert or activate any Disabling Code into the Customer’s systems used for accessing the Platform, or into Retention Track’s systems;

(b) use the Platform for any purpose other than specifically allowed in the User Manual;

(d) bypass any measure we use to prevent or restrict access to the Platform, any part of the Platform, or any other software, systems or networks connected to the Platform;

(e) distribute or make the Platform available over a network where it could be used by multiple devices at the same time;

(f) use the Platform to transmit (or authorise the transmission of) unsolicited messages;

(g) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying algorithms of any part of the Platform;

(h) frame or mirror any part of the Platform, or delete any attributions or legal or proprietary notices on the Platform;

(i) copy, modify or create derivative works of any part of the Platform;

(j) rent, lease, lend, sell, transfer, redistribute, or sublicense the Platform; or

(k) do anything that could disable, overburden or impair the proper working of the Platform, such as a denial of service attack.

5.4 Security

(a) Without limiting the Customer’s obligations in clause 5.2, the Customer must comply with:

(1) Retention Track’s information security policies made available to the Customer from time to time; and

(2) Retention Track’s reasonable directions relating to the security and integrity of Retention Track or the Customer’s information systems.

(b) The Customer must:

(1) take reasonable commercial measures to protect the Customer’s systems against any Disabling Code; and

(2) maintain the security and confidentiality of the passwords and other information used by the Customer to access the Platform.

5.5 Personal information

Before using the Platform to enter, upload or transmit any personal information relating to any individual, the Customer must ensure that:

(a) the purposes for which the Customer is using the individual’s information with the Platform are within the purposes for which that information was originally collected by the Customer; and

(b) the individual would reasonably expect the Customer to use their information in the way the Customer intends to use it with the Platform.

5.6 Customer Data

(a) The Customer is solely responsible for Customer Data, which includes any information that the Customer enters, or uploads, into the Platform.

(b) The Customer represents and warrants that Customer Data will not include any material that:

(1) infringes the rights of any person;

(2) is obscene, intended to humiliate or insult, or likely to cause offence; or

(3) is otherwise unlawful, encourages unlawful conduct, or is otherwise inappropriate having regard to the purpose of the Platform.

6. Fees and payment

6.1 Fees

(a) The Customer must pay to Retention Track the Fees as specified in each Subscription.

(b) For periodic Subscriptions in accordance with clause 2.4, Retention Track will automatically deduct the Fees payable in respect of each month of the Subscription on the 1st day of that month in advance, and the Customer must ensure that cleared funds are available for each such deduction.

6.2 Review of Fees

(a) As part of the changes to these terms that may be specified by Retention Track under clause 1.2(b), Retention Track may change the Fees or introduce Fees in respect of new functionality of the Platform.

(b) If the Customer does not accept the new or changed Fees, the Customer must notify Retention Track and the agreement will terminate in accordance with clause 8.2.

7. Suspension or unavailability of Services

7.1 Suspension of Services

Retention Track may limit or suspend the provision of Retention Track to the Customer by notice in writing with immediate effect if:

(a) Retention Track is affected by an event or circumstances outside its reasonable control;

(b) Retention Track is directed or required to do so by Law;

(d) Retention Track reasonably believes that, in the course of using the Platform, the Customer or any Authorised User has breached a person’s rights (including any Intellectual Property Rights) or any Law;

(e) Retention Track reasonably believes that the Customer or any Authorised User has failed to comply with its obligations under clause 5; or

(f) an Insolvency Event occurs in relation to the Customer.

8. Termination

8.1 Termination by Retention Track for cause

Retention Track may, in its absolute discretion, terminate this agreement:

(a) immediately by notice to the Customer if the Customer breaches this agreement and, in Retention Track’s reasonable opinion, the breach:

(1) cannot be remedied; or

(2) can be remedied, but the Customer does not remedy it within 5 Business Days after Retention Track gives the Customer notice of the breach;

(b) immediately by notice to the Customer if an Insolvency Event occurs in relation to the Customer; or

8.2 Termination by Customer

(a) If Retention Track makes changes to:

(1) these terms, including the Fees, under clause 1.2(b); or

(2) the Platform under clause 4.4 that materially reduce or remove functionality of the Platform that was used by the Customer,

and the Customer does not agree to such changes, then the Customer must notify Retention Track that it does not agree to the changes within 90 days of receiving notice of the changes from Retention Track.

(b) If the Customer provides notice under clause 8.2(a) that it does not agree to the changes specified by Retention Track then:

(1) this agreement will terminate upon the date on which the changes will take effect, as specified by Retention Track in its notice in respect of the changes; and

(2) Retention Track must promptly provide a pro-rated refund of any Fees that have been paid by the Customer in respect of use of the Platform following the date of termination.

8.3 Consequences of termination

(a) The termination of this agreement does not affect any of Retention Track’s other rights or remedies.

(b) On expiry or termination of this agreement:

(1) the Customer must immediately pay to Retention Track all Fees outstanding at the date of termination; and

(2) the Customer must promptly destroy, and must ensure that its Personnel promptly destroy, any Confidential Information of Retention Track in its possession, custody or control, except as permitted under clause 8.3(c).

(c) If this agreement is terminated, each party may retain one copy of the Confidential Information of the other party (including any Customer Data), for the sole purpose of, and only to the extent required to, comply with any applicable Laws relating to archiving or recordkeeping.

9. Warranties

9.1 General representations and warranties

Each party represents and warrants to the other that:

(a) the execution of this agreement has been properly authorised;

(b) it is entitled to enter into this agreement and perform its obligations under this agreement; and

(c) this agreement constitutes a legal, valid and binding obligation on it enforceable in accordance with its terms by appropriate legal remedy.

9.2 Retention Track’s warranties

(a) Subject to the limitations of the Platform set out in clause 3, Retention Track warrants that the Platform will operate materially in accordance with the User Manual.

(b) Other than as expressly specified in the User Manual, Retention Track makes no warranties:

(1) about the Platform, the Platform Information or the Customer’s use of the Platform or the Platform Information; or

(2) as to the suitability for a particular purpose of the Platform or the Platform Information.

9.3 Customer’s warranties

(a) The Customer warrants that, at all times while using the Platform, the Customer and each of its Authorised Users:

(1) will be familiar with and use the Platform appropriately taking into account the Intended Use;

(2) will not rely solely or primarily on the Platform and any Platform Information to determine its rights, entitlements or any course of action;

(3) will only use the Platform and any Platform Information to inform or supplement administration of the Customer’s business in conjunction with its independent judgement and other relevant information; and

(4) will comply with the User Manual in relation to the use of the Platform.

(b) The Customer represents and warrants that it will not use the Platform, or permit the Platform to be used, in any way that causes or contributes to any:

(1) breach of any applicable Law;

(2) conduct that is misleading, deceptive or defamatory;

(3) infringement of any person’s privacy or confidentiality; or

(4) breach of any person’s rights (including any Intellectual Property Rights).

10. Indemnity

10.1 Indemnity

The Customer must indemnify Retention Track, and Retention Track’s Personnel, and hold Retention Track harmless against any expenses, costs, loss (including Consequential Loss) or damage suffered or incurred due to any claim by a third party arising out of or in connection with any wrongful act or omission by the Customer, the Customer’s Personnel or the Customer’s Authorised Users, including:

(a) breach of contract;

(b) tort (including negligence and breach of statutory duty);

(d) breach of privacy;

(e) breach of confidence; or

(f) infringement of any person’s Intellectual Property Rights or other rights.

10.2 Exclusion

The indemnities in clauses 10.1 do not apply to any loss or damage to the extent that the loss or damage is caused by Retention Track’s breach of this agreement.

11. Liability

11.1 Consumer Laws

(a) Retention Track acknowledges that, in some circumstances, the Customer may have rights under the Australian Consumer Law or other Laws which cannot be excluded, modified or restricted (Consumer Rights). The Consumer Rights may relate to conditions, warranties, undertakings and guarantees (including the Consumer Guarantees) which apply in relation to the Platform.

(b) Nothing in this agreement (including this clause 11) excludes, modifies or restricts the rights referred to under clause 11.1(a).

11.2 Limit of liability for Consumer Rights

(a) Subject to clause 11.1 and any Consumer Rights that the Customer may have, except as expressly set out in this agreement, and to the fullest extent permitted at Law, Retention Track disclaims all express, implied and statutory warranties with regard to the Platform.

(b) Retention Track’s liability to the Customer in respect of any Consumer Rights is limited, at Retention Track’s option, to:

(1) resupplying the Platform to the Customer;

(2) paying the cost of having the Platform resupplied to the Customer; or

(3) refunding the Fees in respect of the Customer’s access to the Platform.

11.3 No Liability

Notwithstanding any other clause of this agreement, Retention Track has no liability to the Customer in respect of:

(a) any loss or damage caused by:

(1) a breach of this agreement by the Customer or the Customer’s Personnel;

(2) negligent or intentional acts or omissions by the Customer, its Personnel or any third party; or

(b) any Consequential Loss, including where Retention Track had notice of the possibility of such Consequential Loss; or

11.4 Other limit of liability

In relation to Retention Track’s liability other than liability dealt with under clauses 11.2 and 11.3 (other than liability for a failure to comply with any Consumer Rights) any such liability is limited to the aggregate Fees paid by the Customer in the 12 months preceding the events giving rise to the Customer’s claim against Retention Track that results in such liability.

12. Intellectual Property Rights

12.1 Retention Track Intellectual Property Rights

(a) The Customer acknowledges and agrees that:

(1) all Intellectual Property Rights in the Platform and the content on the Platform (excluding Customer Data) are owned and licensed by Retention Track, including all rights to Retention Track’s trademarks and the copyright in the software and data comprising the Platform; and

(2) all Intellectual Property Rights created in the course of, or in connection with, the provision of access to the Platform (excluding Customer Data) vest, or will vest upon their creation, in Retention Track (New IP).

(b) The Customer hereby assigns all rights, title and interest in and to any New IP to Retention Track.

(c) The Customer acknowledges and agrees that nothing in this agreement transfers to the Customer, or gives the Customer any right or interest in, any Intellectual Property Rights relating to the Platform.

(d) The Customer must notify Retention Track of any actual, threatened or suspected infringement of any of Retention Track’s Intellectual Property Rights.

12.2 Background IP

Each party’s Background IP remains vested in that party and nothing in this agreement transfers any interest in any Background IP to a party.

13. Customer Data

13.1 Ownership of Customer Data

(a) The Customer owns all Intellectual Property Rights in the Customer Data.

(b) The Customer consents to Retention Track’s use of the Customer Data for the purpose of providing access to the Platform to the Customer and for Retention Track’s internal reporting.

(c) The Customer grants Retention Track a perpetual, worldwide, non-exclusive, royalty-free, transferable and irrevocable licence to use for any purpose any anonymised or aggregated Customer Data.

13.2 After access to the Platform ends

(a) If the Customer’s access to the whole of the Platform or any part is to end for any reason, then:

(1) where access is ended on at least 10 Business Days’ notice from Retention Track, the Customer must ensure that it takes a copy of any Customer Data stored in the Platform or the part for which access is ending (as applicable) prior to such access ending; and

(2) where access is ended on less than 10 Business Days’ notice, Retention Track will provide a copy of any Customer Data stored in the Platform or that part (as applicable) within 20 Business Days of the access ending.

(b) Following expiry of the relevant period referred to in clause 13.2(a), Retention Track is not obliged to retain any Customer Data relating to the relevant part for which access has ended, or the whole, of the Platform (as applicable).

(c) Retention Track may continue to retain Customer Data, after its obligation to do so ends pursuant to clause 13.2(a), to comply with any applicable Laws relating to archiving or recordkeeping.

13.3 Hosting Provider

(a) The Customer acknowledges that Customer Data will be provided to the Hosting Provider.

(b) The Customer consents to the Hosting Provider’s use of the Customer Data for the purpose of hosting the Platform.

14. Confidentiality

14.1 Confidentiality

(a) Each party agrees to keep confidential, and not to use or disclose, other than as permitted by this agreement, any Confidential Information of the other party.

(b) The obligation of confidence in clause 14.1(a) extends to Confidential Information provided to or obtained by a party before entering into this agreement.

14.2 Exclusions

The obligation of confidence in clause 14.1 does not apply to Confidential Information that is:

(a) required to be disclosed by applicable Law or the rules of any stock exchange upon which the recipient’s securities are listed, provided that the recipient:

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

(2) before disclosing any information, the recipient provides a reasonable amount of notice to the discloser and exhausts all reasonable steps (whether required by the discloser or not) to maintain the Confidential Information in confidence;

(b) disclosed by Retention Track on a confidential basis to potential investors in, or financiers of, Retention Track or its Related Companies, provided that such information is reasonably necessary to be disclosed for the potential investors or financiers to assess whether or not to invest in or finance Retention Track;

(d) independently developed by the recipient; or

(e) already known by the recipient independently of its involvement in this agreement or interaction with the other party and free of any obligation of confidence.

14.3 Permitted disclosures

(a) Each party may disclose Confidential Information of the other party only on a ‘need-to-know’ and confidential basis:

(1) with the prior written consent of the other party;

(2) to its Personnel; or

(3) to its Related Companies,

solely for the exercise of rights in accordance with, or the performance of obligations under, this agreement.

(b) Each party who discloses Confidential Information of the other party pursuant to clause 14.3(a) must ensure that the information is kept confidential by the recipients.

14.4 Preventing disclosures

Each party must take all steps and do all things as may be reasonably necessary, prudent or desirable in order to safeguard the confidentiality of the Confidential Information of the other party.

14.5 Remedies for breach

(a) Each party acknowledges that the value of the other party’s Confidential Information is such that an award of damages or an account of profits may not adequately compensate if this clause 14 is breached.

(b) Each party acknowledges that, without in any way compromising its right to seek damages or any other form of relief in the event of a breach of this clause 14, a party may seek and obtain an ex parte interlocutory or final injunction to prohibit or restrain the other party or its Personnel from any breach or threatened breach of this clause 14.

15. Privacy

(a) Each party agrees to comply with all applicable Laws, including the Privacy Act, relating to privacy and data protection with respect to any act done, or practice engaged in, by that party in the course of this agreement.

(b) The Customer agrees to comply with all applicable Laws, including the Privacy Act, relating to privacy and data protection with respect to all Platform Information and any other information that is collected, transferred or stored pursuant to its use of the Platform.

(1) may collect, hold and process the Customer’s personal information for the purposes of providing the Platform; and

(2) will collect, hold and process each Authorised User’s personal information, and the personal information of any other person where included in the Customer Data, in accordance with the Retention Track Privacy Policy.

16. Goods and Services Tax

(a) Any reference in this clause 16 to a term defined or used in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) is, unless the context indicates otherwise, a reference to that term as defined or used in that Act.

(b) Unless expressly included, the consideration for any supply made under or in connection with this agreement does not include an amount on account of GST in respect of the supply (GST Exclusive Consideration) except as provided under this clause 16.

(c) Any amount referred to in this agreement (other than an amount referred to in clause 16(g)) which is relevant in determining a payment to be made by one of the parties to the other is, unless indicated otherwise, a reference to that amount expressed on a GST exclusive basis.

(d) To the extent that GST is payable in respect of any supply made by a party (Supplier) under or in connection with this agreement, the consideration to be provided under this agreement for that supply (unless it is expressly stated to include GST) is increased by an amount equal to the GST Exclusive Consideration (or its GST exclusive market value if applicable) multiplied by the rate at which GST is imposed in respect of the supply.

(e) The recipient must pay the additional amount payable under clause 16(d) to the Supplier at the same time as the GST Exclusive Consideration is otherwise required to be provided.

(f) Whenever an adjustment event occurs in relation to any taxable supply made under or in connection with this agreement the Supplier must determine the net GST in relation to the supply (taking into account any adjustment) and if the net GST differs from the amount previously paid under clause 16(e), the amount of the difference must be paid by, refunded to or credited to the recipient, as applicable.

(g) If one of the parties to this agreement is entitled to be reimbursed or indemnified for a loss, cost, expense or outgoing incurred in connection with this agreement, then the amount of the reimbursement or indemnity payment must first be reduced by an amount equal to any input tax credit to which the party being reimbursed or indemnified (or its representative member) is entitled in relation to that loss, cost, expense or outgoing and then, if the amount of the payment is consideration or part consideration for a taxable supply, it must be increased on account of GST in accordance with clause 16(d).

17. Dispute Resolution

(a) If a party believes that a dispute has arisen in relation to this agreement (Dispute), then that party must deliver a notice to the other party setting out the particulars of that Dispute (Notice of Dispute).

(b) If a party delivers a Notice of Dispute, then:

(1) representatives from each party must meet as soon as possible and use all reasonable endeavours to resolve the Dispute within 10 Business Days of the receipt of the Notice of Dispute (Initial Discussions); and

(2) if the Dispute is not resolved during the Initial Discussions, then it must be immediately escalated to the CEO (or equivalent representative) from each party, who must use all reasonable endeavours to resolve the Dispute within 10 Business Days of the end of the timeframe for the Initial Discussions.

(c) Neither party may commence legal proceedings in relation to a Dispute without complying with the requirements in clauses 17(a) and 17(b), unless the party is seeking urgent interlocutory relief.

17.2 Continued performance of the agreement

Despite the existence of a Dispute, the parties must continue to perform their respective obligations under the agreement.

18. General

(a) Interpretation: In this agreement, unless the context requires otherwise:

(1) headings are for convenience only and do not affect the interpretation of this agreement;

(2) words importing the singular include the plural and vice versa;

(3) a reference to a right includes a power, authority, discretion, benefit or remedy conferred on a party by this agreement or any applicable law;

(4) a reference to a person includes any company, partnership, joint venture, association, corporation or other body corporate and any government agency;

(5) a reference to a clause, party or schedule is a reference to a clause of, and a party and schedule to, this agreement and a reference to this agreement includes an attachment and schedule;

(6) a reference to a statute, regulation includes all statutes or regulations, amending, consolidating or replacing it and a reference to a statute includes all regulations issued under that statute;

(7) no rule of construction applies to the disadvantage of a party solely because that party was responsible for the preparation of this agreement or any part of it; and

(8) a promise or agreement by two or more persons binds them jointly and severally.

(b) Notices: Any notice or other communication to or by a party to this agreement must comply with the requirements of this clause 18.2, be legible, in English and addressed to the addresses provided as part of the any Subscription or, if applicable, to the alternative address details notified by a party in writing, and:

(1) a notice is regarded as being given by the sender and received by the addressee:

(A) if delivered in person, when delivered to the addressee;

(B) if by post, 2 Business Days from the date of posting; and

(2) if the delivery or receipt of any notice is on a day which is not a Business Day or is after 4.00pm (addressee’s time), it is regarded as received on the following Business Day.

(c) Governing law and jurisdiction: This agreement is governed by the laws of Western Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Western Australia.

(d) Entire agreement: This agreement replaces all previous agreements in respect of its subject matter and contains the entire agreement between the parties.

(e) Further assurances Each party must do all things and execute all further documents as reasonably required by the other party to give full effect to this agreement.

(f) Relationship of parties: This agreement does not:

(1) constitute a partnership or a joint venture between the parties;

(2) authorise a party to act or hold itself out as an agent or representative of the other party, or assume or create any obligations on behalf of the other party; or

(3) constitute an employer and employee relationship between the parties.

(g) Costs and expenses Each party must pay its own costs and expenses in respect of the negotiation, preparation, execution and delivery of this agreement.

(h) Prohibition and enforceability:

(1) Any provision of, or the application of any provision of, this agreement or any right of a party under this agreement which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.

(2) Where a clause in this agreement is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this agreement.

(i) No waiver: No delay or failure to act will be construed as a waiver of, or in any prejudice, any of Retention Track’s rights. No waiver will be effective unless it is in writing. A waiver of a breach will not waive any other breach.

(j) Variation: A variation of any term of this agreement must be in writing and executed by the parties.

(k) Cumulative rights: The rights of the parties arising out of or under this agreement are cumulative and do not exclude any other right of the parties.

(l) Assignment: Retention Track may assign, transfer, novate, mortgage, encumber, charge, grant a security over or otherwise dispose of its rights and obligations under or in connection with this agreement without the Customer’s consent. The Customer must not do any of these things without Retention Track’s consent.

18.2 Survival of obligations

Clauses 5, 6 (in relation to Fees that are unpaid at the date of termination or expiry), 8.3, 9 to 15, 17 to 19 and any other obligations which are expressed to or, by their nature, survive expiry or termination of this agreement, will survive expiry or termination of this agreement and are enforceable at any time at law or in equity.

19. Definitions

In this document:

(a) Access Terms means the terms and conditions set out in this document;

(b) Retention Track Privacy Policy means Retention Track’s privacy policy available at www.retentiontrack.com/privacy-policy;

(c) Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of the Fair Trading Act 2010 (WA);

(d) Authorised User means any person using the Platform on the Customer’s behalf or to whom the Customer has provided access to the Platform;

(e) Background IP means, in relation to a party:

(1) all Intellectual Property Rights of the party that were in existence prior to the date of this agreement; and

(2) all Intellectual Property Rights of the party that come into existence independently of this agreement;

(f) Business Day means a day on which banks are open for business in Perth excluding a Saturday, Sunday or public holiday in that city;

(g) Confidential Information of a party means any information:

(1) regarding the business or affairs of that party or its Related Companies;

(2) regarding the Customers, employees or contractors of, or other persons doing business with, that party or its Related Companies;

(3) regarding the terms of this agreement, or the commercial arrangements between the parties;

(4) which is by its nature confidential or which is designated as confidential by that party; or

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

and, in the case of Retention Track, includes all information about the Platform, including the User Manual and any other documentation;

(h) Consequential Loss means any loss of data, business, profits, opportunity, reputation or goodwill, or any other indirect or consequential loss, which is suffered by the Customer in connection with this agreement;

(i) Consumer Guarantee means a consumer guarantee applicable to this agreement under the Australian Consumer Law, including any express warranty (as defined in section 2(1) of the Australian Consumer Law);

(j) Consumer Rights has the meaning given to it in clause 11.1(a);

(k) Customer has the meaning given in clause 1.1(a);

(l) Customer Data means all information, documents, images, audio or video files or other materials or data entered into the Platform by the Customer or any Authorised User;

(m) Disabling Code means any virus, bomb, Trojan horse or other malware or computer programming code, including source and object code, which may impair, deny or otherwise adversely affect the use of software;

(n) Fees means the fees for access to, and use of, the Platform and any Support Services as set out in each Subscription;

(o) Hosting Provider means any person providing hosting infrastructure and services to Retention Track for use in providing the Platform;

(p) Insolvency Event means, in relation to a party:

(1) an administrator, liquidator or provisional liquidator is appointed to the party or a resolution is passed or any steps are taken to appoint, or to pass a resolution to appoint, any of those persons to the party;

(2) an application or order is made for the winding-up or dissolution of the party or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of the party;

(3) a receiver, receiver and manager, official manager, trustee, administrator, other controller or similar officer is appointed over the assets or undertaking of the party or any steps are taken to appoint, or to pass a resolution to appoint, any of those persons to the party;

(4) the party suspends payment of its debts generally or is unable to pay its debts as and when they fall due or is presumed to be insolvent under applicable law, or enters into or resolves to enter into any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them;

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

(6) anything having a substantially similar effect to any of the events specified in 1 to 5 above happens to that party under the law of any jurisdiction;

(q) Intended Use means the information describing how the Platform and Platform Information are intended to be used and their limitations, as set out in clause 3;

(r) Intellectual Property Rights means any industrial and intellectual property rights throughout the world and for the duration of the rights including:

(1) any patents, copyright including future copyright, registered or unregistered trademarks or service marks, trade names, brand names, registered or unregistered designs, commercial names, circuit layouts, database rights;

(2) any inventions, discoveries, processes, methods, trade secrets, know how, computer software, confidential information and scientific, technical and product information;

(3) the right to apply for any industrial and intellectual property rights;

(4) any moral rights; and

(5) any other similar or analogous rights and any intellectual or industrial rights whether now existing or which come into existence in the future;

(s) Law means any:

(1) legislation, including regulations, determinations, by laws, declarations, ministerial directions and other subordinate legislation;

(2) common law;

(3) Governmental Agency requirement or authorisation (including conditions in respect of any authorisation);

(4) mandatory codes, standards and guidelines;

(5) writ, order, injunction, or judgment; or

(6) local government legislation, including regional plans, district plans, regulations, by laws, declarations, ministerial directions and other subordinate legislation.

(t) Personnel means in relation to a party, that party’s employees, agents, consultants and subcontractors;

(u) Platform means the software Platform available at retentiontrack.com and as described in clause 3.1(a);

(v) Platform Information means the information, data, results, workflows, timeframes, generated notices and any other and other output that the Customer obtains from the Platform;

(w) Privacy Act means the Privacy Act 1988 (Cth);

(x) Retention Track means Retention Track Pty Ltd ABN 28 682 975 373 of Unit 15 / 5 Murphy Street, O’Connor;

(y) Related Company means a related body corporate as that expression is defined in the Corporations Act 2001 (Cth);

(z) Start Date has the meaning given in clause 1.1(c)(1);

(aa) Subscription means the details of each of the Customer’s subscriptions to the Platform as agreed from time to time by the parties in writing (including by Retention Track’s online forms or by email);

(bb) Subscription Period means each of the periods (which, for clarity, may overlap) specified in clause 2.2(a) or 2.4(a) (as applicable) including any renewal entered into in accordance with clause 2.4(b);

(cc) Tax Invoice has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth);

(dd) User Manual means Retention Track’s documentation of the Platform’s functionality and use available at www.retentiontrack.com/usermanuals as updated from time to time.