Service Terms

These standard terms and conditions (Terms and Conditions) apply to all services (Services) that we, Nous Group Pty Limited (ABN 66 086 210 344) (Nous) perform for you (the Client), except to the extent that other written terms are agreed by the Parties.

1 Nous responsibilities

1.1 Nous will:

• use all reasonable commercial efforts to complete the Services within the agreed time;

• perform the Services with due care, competence and diligence;

• provide the personnel required to fulfil the Services; and

• ensure its personnel comply with all applicable anti-harassment and anti-discrimination laws to maintain a safe and respectful working environment for all Parties.

1.2 Nous reserves the right to substitute new personnel where any assigned personnel become unavailable or additional personnel are required to complete the Services. Nous agrees to discuss the appointment of new or additional personnel with the Client prior to their appointment.

2 The Client’s responsibilities

2.1 The Client agrees to instruct Nous and provide each of the following as reasonably required to perform the Services:

• information – Nous is entitled to rely on the accuracy of the Client supplied information without independently verifying it. The Client supplied information includes information that is supplied by the Client or the Client’s representatives or advisers;

• access – to files, records and information technology systems, to premises and to people with relevant skills and experience; and

• resources – the Client agrees to provide adequate resources to ensure timely approval, development and sign-off of all reports, program materials and other deliverables.

2.2 The Client agrees to provide a safe and respectful working environment that is free from harassment and unlawful discrimination in accordance with all applicable workplace health and safety laws.

3 Changes and delays

3.1 Requests for changes to the Services must be in writing (Change).

3.2 When a request for Change is made, Nous will prepare a proposed variation (Variation). Within 7 days of receipt of a Variation the Client must reject, approve or propose amendments to the Variation. Nous reserves the right not to implement any Change until a Variation has been mutually agreed in writing by the Parties. If the Client does not respond to the variation proposed by Nous within 7 days of receipt, it will be deemed to have been accepted.

3.3 Nous will not be liable for any failure or delay in performing the Services if that failure or delay arises from anything beyond its control – including but not limited to the untimely performance by the Client of its obligations.

4 Fees and expenses

4.1 The Client must pay Nous’ fees (Fees) and disbursements within 14 days of receipt of a rendered invoice (Due Date).

4.2 Nous is entitled to review fees quoted or substitute nominated personnel, if:

• the Client does not proceed with the engagement within 30 days of the initial agreement on the scope and price of the project; or

• Nous is still performing the Services more than 12 months from the commencement date of these Terms and Conditions.

4.3 Unless the invoice is in dispute, Nous reserves the right to refrain from completing any work for the Client until all outstanding invoices are paid in full.

4.4 If the Client disputes any item contained in an invoice, the Client must provide Nous notice within the 14 days of receipt of the relevant invoice and pay on time any amounts not in dispute.

5 Confidentiality

Each Party agrees to take reasonable steps to maintain the confidentiality of any proprietary or confidential information of the other Party, including where appropriate obtaining confidentiality undertakings from third parties.

6 Intellectual property rights

6.1 Nothing in these Terms and Conditions affects the Intellectual Property Rights of either Party that existed prior to the commencement of these Terms and Conditions.

6.2 All rights or title to or interest in any Intellectual Property Rights created by Nous, its employees, agents or sub-contractors either independently or in connection with these Terms and Conditions (including without limitation any future Intellectual Property Rights) will vest immediately on their creation with Nous.

6.3 Nous grants the Client a non-exclusive, non-transferable, perpetual, irrevocable, royalty free licence to use any Intellectual Property Rights referred to in clause 6.2 solely for the Client’s internal business purposes on payment in full to Nous of all fees due and payable under these Terms and Conditions.

6.4 The Client acknowledges that Nous owns its knowledge, experience and know-how developed in the course of performing the Services. Nothing in these Terms and Conditions will restrict Nous from:

• the use of any ideas, concepts, know-how or techniques which either Party, individually or jointly, develops or discloses under these Terms and Conditions; or

• developing materials for itself or for others or providing services that are competitive with any Intellectual Property Rights created as a result of the Services, irrespective of their similarity to the Intellectual Property Rights created by Nous under these Terms and Conditions.

7 Indemnity for liability to third parties

7.1 The Client agrees to indemnify Nous against all Loss incurred by Nous for any claim by a third party which is related to, arises out of, or is caused by any action or omission of the Client in connection with these Terms and Conditions.

7.2 Nous will notify the Client as soon as practicable of any claim for which it proposes to claim against the Client under the indemnity in this clause 7.

8 Limitation of liability

8.1 This clause 8 prevails over all other clauses in these Terms and Conditions.

8.2 Neither Party excludes or limits its liability to the other for death or personal injury caused by its negligence.

8.3 The liability of a Party for loss or damage, caused by its negligence, to tangible property (excluding data) of the other Party shall not exceed one million Australian dollars (AUD$1,000,000).

8.4 Except as provided in clauses 7.1, 8.2 and 8.3, to the maximum extent permitted by law, the maximum cumulative aggregate liability of a Party (First Party) for all claims or causes of action made by the other Party in respect of any loss or damage suffered or incurred by that Party which arise out of an act, omission, negligence or breach of or in connection with these Terms and Conditions by the First Party will not exceed an amount equal to the fees payable by the Client to Nous for providing the Services (excluding GST, expenses and pass-through costs).

8.5 Notwithstanding any other provision, to the maximum extent permitted by law, neither Party will be liable to the other Party for any Consequential Loss under these Terms and Conditions or otherwise at law. For this purpose, Consequential Loss includes, but is not limited to, loss of profit, loss of revenue, loss of interest, loss of data, loss of goodwill or business opportunities (or any other similar financial loss) even if a Party knew or should have known of the possibility of such loss or damage.

8.6 The liability of a Party will be reduced proportionately to the extent that any breach or negligent act or omission of the other Party contributed to the loss or damage.

8.7 All implied conditions, representations, warranties or undertakings (whether statutory or otherwise) are to the fullest extent permitted by law, expressly excluded. If any condition, representation, warranty or undertaking is implied into these Terms and Conditions pursuant to any legislation and the exclusion of such condition, representation, warranty or undertaking is prohibited or restricted by such legislation, Nous’ liability for breach of the condition, representation, warranty or undertaking is limited at Nous’ option to:

• the replacement, repair or repurchase of any defective goods (or part thereof) at Nous’ election; and

• the re-performance of any service, which was defectively performed, or the refunding of monies paid to Nous in respect of such services (at Nous’ election).

9 Termination

9.1 Without prejudicing any rights conferred by these Terms and Conditions, either Party shall be entitled to terminate an agreement for Services immediately by notice in writing:

• if the other Party has committed a material breach of these Terms and Conditions and fails to remedy the breach within 45 days after receipt of written notice requesting that such material breach be rectified; or

• if a Party becomes Insolvent.

9.2 Without prejudicing any rights conferred by these Terms and Conditions Nous is entitled to terminate an agreement for Services immediately by notice in writing if the Client fails to pay any amount (including without limitation any fees or expenses) by the Due Date for payment under these Terms and Conditions.

10 Governing law & jurisdiction

These Terms and Conditions are governed by the laws of Victoria. Both the Client and Nous irrevocably submit to the exclusive jurisdiction of the courts in the State of Victoria.

11 Severance & survival

11.1 If any provision of these Terms and Conditions is found to be illegal, unenforceable or otherwise invalid then, despite that invalidity, these Terms and Conditions will remain in full force and effect, and that provision will be substituted by a valid one which in its economic effect comes so close to the invalid provision that it can be reasonably assumed that the Parties would have contracted also with the substituted provision, and if that is not possible the provision will be deemed to be deleted.

11.2 Provisions of these Terms and Conditions that are capable of having effect will survive its termination.

12 Non solicitation

The Parties undertake that during the course of the provision of any Services and for a period of six months following the conclusion of the Services, they will not solicit or entice a staff member or contractor that performs the Services, from the other.

13 Relationship

Nous will provide the Services as an independent contractor. Nothing in these Terms and Conditions shall be construed to create a partnership, joint venture or other relationship between the Parties.

14 Escalation and dispute resolution

14.1 Any dispute that may arise concerning these Terms and Conditions shall in the first instance be referred to the Parties’ respective Project Directors for discussion and resolution. If the matter is not resolved at this level, the matter shall be referred to the next level of the other Party’s management and Nous’ Managing Director who must meet within two weeks to attempt to resolve the matter. If the unresolved dispute is having a serious effect on the Services, the Parties will use reasonable commercial endeavours to reduce the elapsed time in completing the process.

14.2 If the matter cannot be resolved through the escalation process in clause 14.1, the Parties will submit to mediation before having recourse to any other dispute resolution process. Written notice of the dispute will be given for it to be submitted to mediation before a mediator chosen by the Parties or, where the Parties cannot agree, by the Australian Commercial Disputes Centre (ACDC). The Parties will use their best endeavours to settle the dispute promptly. The mediation will be conducted according to the ACDC Mediation Guidelines to the extent that they do not conflict with the provisions of this clause. If the dispute is not resolved within 60 days after notice of the dispute is given pursuant to this clause 14.2, the mediation will terminate.

15 General

15.1 Nous may perform the Services with its own personnel or any of its affiliates or with sub-contractors. Nous shall be solely responsible for the performance of the Services and all other responsibilities under these Terms and Conditions.

15.2 These Terms and Conditions comprises the entire agreement between the Parties and supersedes any prior understandings, representations or agreements.

16 Interpretation and definitions

16.1 In these Terms and Conditions, the following rules apply, unless the document otherwise requires:

• a word suggesting the singular includes the plural and vice versa;

• a word suggesting a gender includes all genders;

• a reference to “includes” or “including” means without limitation unless the contrary intention appears;

• a reference to monetary units is to units of Australian currency;

• headings are for ease of reference only and do not affect the interpretation of these Terms and Conditions;

• where a term is defined in these Terms and Conditions, another part of speech or grammatical form of that term has a corresponding meaning; and

• no rule of construction will apply in the interpretation of these Terms and Conditions to the disadvantage of one Party on the basis that that Party put forward or drafted the agreement or any part of it.

16.2 In these Terms and Conditions:

• Insolvent in relation to a Party means:

1. the passing by that Party of a resolution for winding up or a winding-up order being made against it or going into administration; or

1. a receiver, receiver and manager, or administrator is appointed; or

1. the Party is unable to pay its debts when due or it ceases or threatens to cease to carry on its business or enters into a composition with its creditors;

• Loss means liabilities, claims, costs and expenses.

• Party means each of Nous and the Client and Parties means both of them.