1.Background

2. Agreed Terms

Support Services

1. Introduction

This schedule describes the support services offered by CyTrack in connection with the messaging and related services provided by CyTrack via the Website.
The Customer must ensure that its Personnel are aware of, and comply with, the Customer’s obligations under this schedule, including
obligations in relation to the reporting of faults, interruptions or problems with the Service (Incidents).

2. Support Services

2.1 The Support Services comprise:

2.2 The Support Services do not include the investigation, addressing or the resolution of Incidents:

2.3 The Support Services do not include:

2.4 CyTrack will provide the Support Services to the Customer 24 hours a day, 7 days a week, and 365 days a year.

2.5 The Customer must not forward any CyTrack support contact information to its Message Recipients.

3. Service availability

3.1 In this schedule

3.2 CyTrack will use reasonable efforts to ensure that the CyTrack System has an Uptime of at least 99.99% per month, but excluding:

3.3 CyTrack will use reasonable efforts to

3.4 Not with standing section 3.3, in emergency situations, it may be necessary for the CyTrack Systems to have Downtime with no notice. CyTrack will notify the Customer of any such emergency situations as soon as it is reasonably practicable to do so.

3.5 Without limiting the Customer’s other rights and remedies, the Customer may terminate the Agreement for breach if CyTrack persistently fails to meet these obligations, or a single failure continues for a prolonged period of time, as reasonably determined by the Customer.

4. Customer Obligations

The Customer must comply with the following Incident reporting process:


Customer Obligations (Cont’d)

Prior to any requests for support, the Customer must perform Incident analysis in its own environment (in accordance with paragraph B above). If CyTrack determines that the support request falls outside of the scope of the Support Services (for example, because one or more of the matters referred to in sections 2.2 or 2.3 apply) CyTrack may invoice the Customer for the provision of that support at CyTrack’s then-current time and materials rates.


5. CyTrack’s Obligations

5.1 CyTrack will:

Affected Service: [SMS MT, SMS MO, MMS, Number Lookup etc]
Interface: [SMPP, HTTP, DNS, etc]
Destinations Network : [Telstra, Vodafone, etc]
Reason for problem:
Responsibility:
Start time of fault in AEST:
Other important information:
{e.g. maintenance on MNO SMSC}
{e.g. outside of CyTrack sphere of control}
[16:00]
{….}

CyTrack will inform the Customer when an Incident has been resolved.

5.2 CyTrack will use its reasonable efforts to acknowledge (by email) and resolve Incidents within the
time frames set out below calculated from the Customer’s reporting of the Incident by email or telephone, whichever occurs first):

5.3 For the purposes of this schedule:

6. Escalation levels

In the case of a Level 1 or Level 2 Incident, if a resolution is not achieved within the target resolution times in section 5.2 above, the Customer may escalate the Incident to the following CyTrack personnel

Shared Support

 

12. Post-Paid Terms and Conditions

1. Defined terms & interpretation

1.1 Defined terms

In these terms and conditions:

Acceptable Use Policy means CyTrack’s acceptable use policy as published on the Website from time to time.
Account means an online account used to access the CyTrack Systems.
Agreement means the agreement entered into between CyTrack and the Customer in relation to the Services, comprising the relevant SOW and these Terms.
Business Day means a day in the State of QLD, Australia that is not a Saturday, a Sunday or a gazetted public holiday in that State.
Business Hours means the period between 9.00am and 5.00pm on a Business Day.
Child Account has the meaning given to that term in clause 5.1.
Child Account Nominee means, in relation to a Child Account, the person nominated by the relevant Customer in whose name the Child Account is to be held.
Claim means a claim, demand or proceeding arising out of a cause of action, including breach of contract, tort (including negligence) and any other common law, equitable or statutory cause of action.
Complaints Handling Policy means CyTrack’s dispute resolution and complaints handling policy as published on the Website from time to time.
Consulting Services means those services (if any) designated as ‘Consulting Services’ in Schedule 4 of the SOW or such other services agreed as consulting services by CyTrack and the Customer in writing from time to time.
Commencement Date means the date specified in Schedule 2 of the SOW.
Confidential Information of a Disclosing Party means:

A. the following information, regardless of its form and whether the Receiving Party becomes aware of it before or after the Commencement Date;

i. information that is by its nature confidential;

ii. information that is designated by the Disclosing Party as confidential; and

iii. information the Receiving Party knows, or ought to know, is confidential;

B. all notes and other records prepared by the Receiving Party based on or incorporating information referred to in paragraph (a); and

C. all copies of the information, notes and other records referred to in paragraphs (a) and (b), but excludes information that:

D. the Receiving Party creates (whether alone or jointly with any third person) independently of the Disclosing Party; or

E. is public knowledge (otherwise than as a result of a breach of confidentiality by the Receiving Party or any of its permitted discloses).

Customer Data means data and information relating to the Customer, the Child Account Nominees and their operations, facilities, personnel, assets, products, sales and transactions (including the Customer’s Messages and information relating to their Message Recipients).

Customer’s Primary Account means the Account established under the Agreement which is determined by SMS from time to time to be the Customer’s primary account.

Damages means all liabilities, losses, damages, costs and expenses (including all legal costs determined on a solicitor and own client basis) whether incurred or awarded against a party, disbursements, costs of investigation, litigation, settlement and judgment, and interest, fines and penalties, regardless of the Claim under which they arise.

Development Services means those services (if any) designated as ‘Development Services’ in Schedule 4 of the SOW or such other services agreed as development services by CyTrack and the Customer in writing from time to time.

Disclosing Party means a party who discloses or makes available Confidential Information to a Receiving Party.

Extended Term has the meaning given to that term in clause 2.2.

External Factors has the meaning given in clause 3.4B.

Fees means all fees and charges payable by the Customer to CyTrack under the Agreement including without limitation the Message Costs.

Force Majeuremeans:
A. act of God, lightning, storm, flood, fire, earthquake, explosion, cyclone, tidal wave, landslide or adverse weather conditions;
B. act of public enemy, war (declared or undeclared), act of terrorism, sabotage, blockade, revolution, riot, insurrection, civil
commotion or epidemic;

C. the effect of any applicable laws, orders, rules or regulations of any government or other competent authority;
D. embargo, power or water shortage or lack of transportation;
E. any External Factors; or
F. any other event beyond the reasonable control of a party.

Governmental Agency means any governmental, semi-governmental or judicial entity or authority.

Harmful Code means any virus, worm, trojan horse, trapdoor, software switch, time bomb, slicing routine, corruptive code, logic bomb,
disabling code, disabling routine or expiration dates as these words are generally understood within the technology industry and any
equivalent or similar corruptive mechanism.

Initial Term means the period from the Commencement Date until Initial Term Expiry Date.

Initial Term Expiry Date means the date specified as the initial term expiry date in Schedule 2 of the SOW.

Intellectual Property Rights means all intellectual property rights, including:

A. patents, copyright, rights in circuit layouts, designs, registered designs, trade and service marks, trade names and any right to have confidential information kept confidential;

B. any application or right to apply for registration of any of the rights referred to in paragraph A; and
C. all rights of a similar nature to any of the rights in paragraphs A and B which may subsist anywhere in the world (including Australia).

Laws means:

A. the common law and equity;
B. any statute, regulation, by-law, ordinance or subordinate legislation (including the Privacy Laws); or
C. any licence, permit, authorisation, accreditation, code of practice, code of conduct, order, direction or other requirement which is enforceable against the Customer or CyTrack (as the case may be) or which is issued under an instrument referred to in paragraph B,
and includes any amendment, change, update or replacement to any of them that may be implemented or take effect during the term of the Agreement.

Message means any electronic message (including, SMS and MMS messages), (including the data, information, text, media, images, features, advertisements, promotions, links, pointers and other content comprised in those messages) transmitted or received through the CyTrack Systems.

Message Cost means the cost to that Customer of submitting a Message for sending to the CyTrack Systems.
Message Recipient means, in relation to a Message, the Customer’s intended recipient of that Message.
Messaging Services means the messaging and related services provided to the Customer by CyTrack via the Website and the provision to the Customer of access to the Web Tools (including the facility for the Customer to submit Messages for sending through the CyTrack Systems).

Personal Information means any information or opinion about a natural person (whether true or not), including ‘personal information’ as that term is defined in the Privacy Act, which either party collects or has access to, stores or discloses, or otherwise handles, in the course of performing, or receiving the benefit of, the Services.
Personnel means, in relation to a party, the officers, employees, agents, contractors and representatives of that party and its Related Corporations.
Pricing Period means, in relation to the pricing of a particular Message Service during a particular period as set out in the Customer’s Pricing Schedule, that period (if any).

Pricing Schedule means the Schedule 3 of the SOW setting out any agreed pricing for the Services (including any Message Costs for certain types of Message Services).
Privacy Act means the Privacy Act 1988(Cth).
Privacy Laws means:

A. the Privacy Act, the Health Records Act 2001 (Vic), the Spam Act 2003 (Cth) and the Do Not Call Register Act 2006 (Cth);
B. all codes, guidelines, service standards and procedures issued by a Governmental Agency; and
C. all other laws, rules and regulation in any relevant jurisdiction (including Australia), to the extent they relate to the privacy, protection, use or disclosure of Personal Information or data.

Privacy Policy means CyTrack’s privacy policy as published on the Website from time to time.
Receiving Party means a party to the Agreement who obtains Confidential Information of the other party to the Agreement.
Related Corporation has the same meaning as “related body corporate” in the Corporations Act 2001 (Cth).
Services has the meaning given to that term in clause 3.2.
CyTrack Pre-Existing IPR means any Intellectual Property Rights owned and created by CyTrack prior to the Commencement Date (together with any improvements, modifications and enhancements made to those rights during the term of the Agreement).

CyTrack Systems means all hardware, software, materials and resources used by (or on behalf of) CyTrack to provide the Services (including the Web Tools).
SOW means, in relation to a Customer, the statement of works executed by the Customer and CyTrack which forms part of this Agreement.
Supplier means a mobile network operator or any other provider to a mobile network operator whose services or infrastructure directly or indirectly are able to receive a Message submitted by the Customer via the CyTrack Systems for sending to the relevant Message Recipient but excludes CyTrack.
Support Services means those services (if any) designated as ‘Support Services’ in Schedule 4 of the SOW or such other services agreed as support services by CyTrack and the Customer in writing from time to time.

Term means the term of this Agreement, as extended from time to time in accordance with this Agreement.
Terms means these post-paid terms and conditions.
Website means the CyTrack website located at www.CyTrack.com (or any successor website as notified to the Customer from time to time).
Web Tools means:

A. the MobileWorks and the MXT portals (or any related or successor platform as notified to the Customer from time to time);
B. CyTrack’s application programming interfaces; and
C. any other tools specifically made available to the Customer by CyTrack to enable the Customer to receive the benefit of the Services.

1.2 Interpretation

In these Terms, unless the contrary intention appears:

A. headings are for ease of reference only and do not affect the meaning of these Terms;
B. the singular includes the plural and vice versa and words importing a gender include other genders;
C. other grammatical forms of defined words or expressions have corresponding meanings;
D. a reference to a clause, paragraph, schedule or attachment is a reference to a clause or paragraph of or schedule or attachment to
these Terms and a reference to these Terms includes any schedules and attachments;
E. a reference to a document or agreement, including these terms and conditions, includes a reference to that document or
agreement as novated, altered or replaced from time to time;
F. a reference to a party includes its executors, administrators, successors and permitted assigns;
G. the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
H. any agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;

I. any agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;
J. words and expressions importing natural persons include partnerships, bodies corporate, associations, governments and governmental and local authorities and agencies; and
K. a reference to any statute or other legislation is to a statute or other legislation as amended or replaced from time to time.

1.3 SOW shall prevail over these Terms

To the extent that there is any inconsistency between anything in these Terms and what is set out in the SOW, the SOW shall prevail to the extent of that inconsistency.

2. Term

2.1 Initial Term

The Term commences on the Commencement Date and continues until the Initial Term Expiry Date (inclusive). If either party has provided a termination notice to the other in accordance with clause 18.1 the Term will expire on the Initial Term Expiry Date.

2.2 Automatic extension after the Initial Term

If neither party has provided termination notice to the other in accordance with clause 18.1, the Term shall be automatically extended by the period specified as the extended term in Schedule 2 of the SOW (an Extended Term).

2.3 Agreement to continue after Extended Term

Upon the expiry of the Extended Term, unless either party has provided a termination notice to the other in accordance with clause 18.2, the Agreement shall continue until terminated in accordance with clause 18.3.

3. Services

3.1 Performance of the Services

From the Commencement Date, CyTrack will:
A. provide the Services to the Customer; and
B. permit the Customer to access and use the Web Tools for the purposes of receiving the benefit of the Services, in each case in accordance with these Terms.

3.2 Services

A. Services means the Messaging Services, any other services set out in Schedule 4 of the SOW and any other services as agreed between CyTrack and the Customer in writing from time to time (which may include, for example, Consulting Services or Development Services)

B. For the avoidance of doubt:

i. If the Supplier Chain includes one or more Suppliers, your Message is considered to be delivered by CyTrack once it has been transmitted from the CyTrack Systems to the first Supplier in the Supplier Chain.

ii. If the Supplier Chain includes one or more Suppliers, actual delivery of a Message to the Message Recipient is dependent on the effective functioning of the infrastructure and network coverage of each Supplier in the Supplier Chain as well as the Message Recipient’s mobile handset;

iii. Having regard to clause (i) and (ii), if the Supplier Chain includes one or more Suppliers, the Services do not include the actual delivery of a Message to the intended Message Recipient and CyTrack does not accept responsibility for any failure of, or delay in, the delivery of a Message to a Message Recipient provided that CyTrack has transmitted the relevant Message to the first Supplier in the Supplier Chain; and

v. CyTrack’s responsibility for any failure of, or delay in, the delivery of a Message to a Message Recipient is limited in accordance with the Agreement.

3.3 Access to the Web Tools

A. The Customer must:

i. at the Customer’s cost, provide appropriate access devices, software, operating conditions, cabling, telephone lines, modems and internet connections required for the Customer to access the Web Tools and otherwise receive the benefit of the Services;

ii. ensure that no unauthorized use is made of the Web Tools, whether through the Customer’s Primary Account or any Child Account;

iii. comply with all of CyTrack’s operating and security requirements and procedures relating to:

a. access to the Web Tools; and

b. the use of the Services, (including in respect of passwords and other security information) as displayed on the Website or otherwise notified to the Customer from time to time;

iv. other than as expressly permitted under the Agreement, not obtain (nor attempt to obtain) any access to, or interfere with:

a. any programs or data of CyTrack, a Supplier or any other client of CyTrack; or

b. any part of the CyTrack Systems or any systems, hardware, software or networks of any Supplier; and

v. not introduce any Harmful Code into the CyTrack Systems or the systems, hardware, software or networks of any Supplier.

B. If the Customer becomes aware of or suspects that a breach of any of the obligations set out in clause 3.3A has occurred, the Customer must promptly notify CyTrack, in which case CyTrack may take such action as it considers appropriate (which may including changing the Customer’s passwords and other security information).

C. CyTrack must provide Customer with CyTrack’s operating and security requirements and procedures referred to in clause 3.3A(iii) prior to the commencement of this Agreement, and if CyTrack amends such requirements and procedures during the Term, CyTrack must provide reasonable prior written notice of any such changes, and the Customer may terminate the Agreement (without liability) if the Customer does not agree to any material changes to the operating and security requirements and procedures.

3.4 Service continuity

A. Despite anything else in the Agreement, CyTrack does not undertake, warrant or guarantee that the Services (including access to the Web Tools or other CyTrack Systems) will be uninterrupted, continuous, or error-free.

B. The Customer acknowledges and agrees that the Customer’s use of the Services is dependent on, and affected by, a number of environmental and other factors outside of the reasonable control of CyTrack, including the systems, hardware, software of, and any services provided by, any Suppliers (External Factors). Subject only to clause 16, CyTrack will have no liability whatsoever relating to any failure of, or interruption in the performance of, the Services resulting from any External Factors. In the event of failure of the Services, CyTrack will use reasonable commercial endeavours to restore the Services to an operational state with the minimum practicable delay.

C. The Customer acknowledges that, from time to time:

i. CyTrack will conduct routine and other maintenance on the Website and the CyTrack Systems; and

ii. the Suppliers will conduct routine and other maintenance on their respective systems, hardware, software and networks,

and the Customer agrees that, during the conduct of such maintenance, the Customer may not be able to access or use the Services. CyTrack agrees to notify the Customer of any such maintenance in accordance with the Support Services detailed in the SOW.

D. The Customer acknowledges and agrees that CyTrack may, in its sole discretion, suspend the Services (including the Customer’s access or any Child Account Nominee’s access, to the Web Tools) in any of the following circumstances:

i. CyTrack’s access to any system, software, hardware or network of any Supplier is suspended for any reason;

ii. CyTrack is required to do so by any Governmental Agency or a Supplier;

iii. with prior notice (in a time frame that is reasonably practical to do so);

iv. the Customer has not paid an invoice in full in accordance with the payment terms specified in the SOW;

v. the Customer breaches any material provision of the Agreement; or

vi. for any other justifiable reason, including but not limited to, circumstances where the Customer (or any of the Customer’s Child Account Nominees) is in CyTrack’s opinion, in breach of these Terms.

4. The Customer’s Obligations

4.1 Customer’s Primary Account

The Customer:

A. warrants that all information the Customer provides in the SOW is current and any other information provided to CyTrack is complete and accurate;
B. must keep the Customer’s Primary Account information current and accurate; and
C. must keep all of the Customer’s Primary Account information (including the Customer’s password and account name) confidential and secure.

4.2 Licences and compliance

A. Each party must obtain and maintain throughout the term of the Agreement all relevant licences, approvals, permits and certificates:

i. in the case of CyTrack, required in respect of delivery of the Messages, and in the case of the Customer required in respect of the content of the Messages; and

ii. otherwise required in order for the Customer to receive the benefit of the Services;

B. Each party must comply with all applicable Laws and industry codes and practices in the performance of its obligations and exercise of its rights under this Agreement.

C. The Customer must comply with CyTrack’s directions, policies and procedures notified in writing to Customer relating to the use of the CyTrack Systems and the delivery of the Services, provided that CyTrack provides reasonable prior written notice to the Customer of any new or material changes to existing directions, policies and procedures following the commencement of the Agreement, and the Customer may terminate the Agreement (without liability) if the Customer does not agree to such new or material changes.

4.3 Use of Services

The Customer must not use the Services, nor permit the Services to be used:

A. for sending any communication or Message which:

i. is defamatory, abusive or of a vulgar, obscene or menacing nature;

ii. is false, inaccurate, misleading or unlawful;

iii. is invasive of a person’s privacy;

iv. is hateful or racially, ethnically, or otherwise objectionable; or

v. CyTrack determines to be otherwise offensive or inappropriate;

B. for the persistent sending of Messages without a reasonable cause or for the purpose of causing annoyance, inconvenience or distress to any person;

C. in a way that contravenes:

i. any applicable Law (including the Privacy Laws) or industry code or practice; or

ii. any other rules or guidelines posted on the Website or otherwise notified to the Customer by CyTrack from time to time;

D. in any way that may have a detrimental effect on the goodwill or good standing of CyTrack or any Supplier;

E. in a way that may expose CyTrack or any Supplier to the risk of any legal or administrative action including prosecution under any Laws;

F. to transmit any communication or Messages that may harm a minor in any way;

G. to send unsolicited electronic commercial messages where the recipient has not consented to receive such messages;

H. to interfere with or disrupt CyTrack’s business, or the services, hardware, software or networks of any Supplier;

I. in a way that would infringe any person’s Intellectual Property Rights or other rights; or

J. in any other way that contravenes the requirements of any Supplier as notified to the Customer from time to time (which notification may be given in accordance with clause 20 or by posting a notice on the Website to that effect).

4.4 Acceptable Use Policy

A. Without limiting clause 4.3, the Customer shall comply at all time with CyTrack’s Acceptable Use Policy.

B. Where CyTrack makes an amendment to the Acceptable Use Policy, it shall have immediate effect following publication of such policy on the Website provided that CyTrack provides reasonable prior notice of any material changes to the Acceptable Use Policy, and the Customer may terminate the Agreement if the Customer does not agree to such material changes.

4.5 Responsibility for Messages

A. The Customer:

i. is solely responsible for the content of all Messages (whether submitted or transmitted on the Customer’s own behalf or on behalf of a third party);

ii. must inform CyTrack as soon as possible if the Customer suspects or becomes aware of any unauthorised use of the Customer’s Primary Account or any Child Account; and

iii. acknowledges and agrees that CyTrack has no editorial control over the Messages and is under no obligation to review, moderate, amend or modify the Messages as part of the Services.

B. The Customer acknowledges and agrees that, notwithstanding clause 4.5(a), CyTrack and the Suppliers may, in their absolute discretion, monitor the Messages transmitted using the CyTrack Systems.

C. The Customer must bear all costs arising out of any complaints made in connection with the Messages (including complaints made by any Governmental Agency)

5. Child Accounts

5.1 Child Accounts

A. Upon being requested to do so by the Customer in the manner designated by the CyTrack

Systems, CyTrack may, in its absolute discretion, create one or more Accounts (each a Child Account) that are linked to the Customer’s Primary Account.

B. The existence of a Child Account does not of itself create a separate agreement for Services between CyTrack and the Child Account Nominee and the Agreement shall apply to all Services provided in respect of the Child Account.

5.2 Responsibility for Child Accounts

Unless CyTrack expressly agrees in writing otherwise, the Customer is responsible in all respects for a Child Account (including the indemnity in favour of CyTrack in clause 17 and all Fees and other costs and expenses attributable to that Child Account) as if it were the Customer’s Primary Account under the Agreement.

5.3 Deliberately left blank

6. Message Costs

A. Subject to clause 6(b) and clause 6(c), the Message Costs charged by CyTrack to the Customer will be those prices indicated to the Customer at the time of submitting the relevant Messages for sending to the CyTrack Systems.
B. If a price for a particular type of Message Service has been agreed by CyTrack in the Customer’s Pricing Schedule (for example, the price of sending Messages to a particular country or carrier during a particular Pricing Period), the Message Costs will be determined having regard to the Pricing Schedule.
C. If specific volume-based discounts have been agreed by CyTrack in the Customer’s Pricing Schedule and the Customer meets the eligibility criteria for such discounts during the relevant Pricing Period (for example, meets the volume requirements during that Pricing Period), the Message Costs will be determined having regard to those discounts.
D. The Customer acknowledges that CyTrack may in its absolute discretion offer different pricing for Messages than those set out in the SOW to other customers based on membership or other criteria from time to time.

7. Fees

7.1 Invoicing for Services

A. On or around the end of each month (unless otherwise agreed between the parties), CyTrack may give the Customer an invoice for the Fees it incurred over the previous month.
B. The Customer may request that CyTrack itemises in the invoice or in supporting documentation the Fees that relate to the Customer’s Primary Account and the Fees that relate to the relevant Child Accounts.

7.2 Payment by the Customer

The Customer must pay each invoice in full in accordance with the payment terms specified in the SOW.

7.3 Non- Payment

If the Customer has not paid an invoice in full in accordance with the payment terms specified in the SOW, CyTrack may, at its election either:

A. suspend the Services (including the Customer’s access or the Child Account Nominee’s access, to the Web Tools) in accordance with clause 3.4D; or
B. terminate the agreement in accordance with clause 18.5A.

8. GST

8.1 Defined terms

In this clause 8, a word or expression defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the meaning given to it in that Act.

8.2 GST inclusive amounts

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

8.3 Consideration GST exclusive

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

8.4 Gross up of consideration

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

A. the consideration payable or to be provided for that supply under the Agreement but for the
application of this clause (GST exclusive consideration) is increased by, and the recipient of the supply (Recipient) must also pay to the Supplier, an amount equal to the GST payable by the Supplier on that supply; and

B. the amount by which the GST exclusive consideration is increased must be paid to the Supplier by the Recipient without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.

8.5 Reimbursement (net down)

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

9. Fees exclusive of Taxes

A. Except as otherwise specified in the Agreement and subject to clause 9B, the Fees and any other fees and charges payable by the Customer under the Agreement are exclusive of all taxes, duties and charges imposed or levied in Australia or overseas in connection with the Agreement or the Services.

B. CyTrack is solely liable for all taxes on income and revenue, and any capital gains accrued or paid, in respect of the Services.

10. Stamp duty and other Taxes

10.1 Stamp duty

Any stamp duty, duties or other taxes of a similar nature (including fines, penalties and interest) in connection with the Agreement or any transaction contemplated by this agreement must be paid by the Customer.

10.2 Withholding tax

If a Law, or regulation pursuant to a Law, requires the Customer to deduct or withhold an amount on account of any tax from any payment to CyTrack under or in connection with the Agreement:

A. the Customer must make the withholding or deduction; and
B. the amount of the payment to CyTrack must be increased by such additional amount as is necessary to ensure that the amount received and retained by CyTrack (after taking into account all deductions and withholdings on account of tax) is equal to the amount that CyTrack would have received had the payment in question not been subject to any deductions or withholdings.

11. Intellectual Property Rights

11.1 CyTrack Intellectual Property Rights

CyTrack owns (or is the licensee of) all Intellectual Property Rights in:

A. the Web Tools and the CyTrack Systems;
B. all CyTrack Pre-Existing IPR; and
C. all documentation, know-how, methodologies, equipment and other materials supplied or made available to the Customer under or in connection with the Agreement, and nothing in the Agreement transfers or assigns any of those rights to the Customer.

11.2 The Customer’s Intellectual Property Rights

A. CyTrack acknowledges and agrees that, as between the parties, the Customer retains all Intellectual Property Rights in the Customer Data.

B. The Customer grants to CyTrack a non-exclusive, non-transferable, royalty-free licence to use and reproduce the Customer Data solely for the purpose of enabling CyTrack to discharge its obligations under the Agreement.

12. Confidential information

12.1 Use and disclosure

A Receiving Party:

A. may use Confidential Information of the Disclosing Party only for the purposes of the Agreement; and
B. must keep confidential all Confidential Information of the Disclosing Party except:

i. for disclosures permitted under this clause 12; and
ii. to the extent (if any) the Receiving Party is required to disclose any Confidential Information by Law or in accordance with the rules of an applicable stock exchange.

12.2 Use and disclosure of Confidential Information

A Receiving Party may disclose Confidential Information of the Disclosing Party:

A. in the case of CyTrack, to a Supplier as required by the terms of any agreements between CyTrack and that Supplier; and
B. to persons who:

i. have a need to know for the purposes of the Agreement (and only to the extent that each has a need to know); and
ii. before disclosure, have been directed to keep all Confidential Information confidential.

12.3 Receiving Party’s obligations

A Receiving Party must:

A. ensure that each person to whom it discloses Confidential Information of the Disclosing Party under clause 12.2 complies with its direction; and
B. notify the Disclosing Party of, and take all reasonable steps to prevent or stop, any suspected or actual breach of a direction.

12.4 Disclosure required by Law

If a Receiving Party is required by Law or the rules of an applicable stock exchange to disclose any Confidential Information of a Disclosing Party to a third person (including government) the Receiving Party must:

A. before doing so:

i. notify the Disclosing Party; and
ii. give the Disclosing Party a reasonable opportunity to take any steps that the Disclosing Party considers necessary to protect the confidentiality of that information; and
iii. notify the third person that the information is confidential to the Disclosing Party.

13. Privacy

13.1 Each party:

A. agrees to be bound by and comply with all applicable Privacy Laws (including, without limiting the foregoing, any Australian, United Kingdom, European and United States Privacy Laws and any other Privacy Laws that may apply to any Personal Information) with respect to any act done or practice engaged in by the party for the purposes of the Agreement including in relation to the Customer and CyTrack, in respect of the collection, use, disclosure and storage of the Personal Information of Message Recipients;

B. must (and must ensure that its Personnel) comply with:

i. the Privacy Laws and all guidelines issued by applicable privacy offices (and any similar regulatory bodies); and
ii. in the case of CyTrack, its Privacy Policy and in the case of Customer, its privacy policy; and

C. must notify the other party immediately:

i. of any complaint from any person alleging a breach of the Privacy Laws;
ii. if it becomes aware of a breach, or a suspected or possible breach, by it of its obligations under this clause 13; or
iii. if it becomes aware that any disclosure of Personal Information may be required by Law (including any Privacy Laws); and

D. cooperate with the other party in:

i. resolving any complaint alleging a breach of the Privacy Laws or any privacy statement regarding any Personal Information; and
ii. providing access to any record of Personal Information following a request from an individual; and

E. take appropriate technical and organisational measures to prevent (to the extent reasonably practicable):

i. unauthorised or unlawful use or disclosure of; and
ii. accidental loss or destruction of, or damage to,

Personal Information.

14. Data protection

14.1 Use of Customer Data

CyTrack must not (and must ensure that its Personnel do not):

A. use Customer Data held by CyTrack, or to which CyTrack has access, other than for the purposes of fulfilling its obligations under the Agreement; or
B. purport to sell, let for hire, assign rights in or otherwise dispose of any Customer Data, other than as required to enable CyTrack to:

i. perform the Services; or
ii. comply with applicable Laws or the rules of any applicable stock exchange.

14.2 Safeguarding Customer Data

CyTrack will:

A. establish and maintain reasonable safeguards against the destruction, loss or alteration of Customer Data in the possession, custody or control of CyTrack;
B. use its reasonable endeavours to protect the Customer Data from destruction, loss, alteration or security breaches while the Customer Data is stored in the CyTrack Systems;
C. only access and store, and ensure that CyTrack’s Personnel only access and store, Customer Data in Australia (although this limitation does not limit CyTrack from transmitting Messages to, or receiving Messages from, Suppliers in the “Supplier Chain”, in countries outside of Australia, as contemplated in clause 3.2B);
D. on expiry or termination of the Agreement, except to the extent prohibited by Law, return or destroy all Customer Data, and the Customer’s and the Child Account Nominees’ Confidential Information disclosed to CyTrack under the Agreement, other than copies required to be retained by CyTrack to comply with applicable Laws.

15. Warranties

Each party (warranting party) warrants to the other party that:

A. the warranting party has the requisite power and authority to enter into the Agreement and to carry out the obligations contemplated by the Agreement;

B. in the case of the Customer as the warranting party, the transmission of the Messages (or any of them) will not infringe the Intellectual Property Rights or other rights of any person in relation to the content of the Messages (i.e. the Customer Data), and not in relation to the technical transmission of the messages (as the technical transmission of messages is CyTrack’s responsibility);

C. the warranting party holds (and will at all times continue to hold) all rights permits, licences, authorisations and accreditations required for it to perform the warranting party’s obligations under the Agreement; and

D. the performance of the warranting party’s obligations under the Agreement will:

i. not infringe the Intellectual Property Rights or other rights of any person;
ii. comply with all such rights, permits, licences, authorisations and accreditations; and
iii. not contravene any applicable Laws.

16. Exclusion of warranties and limited liability

16.1 Application of exclusions and limitations

The exclusions and limitations of liability in this clause 16:

A. apply whether the relevant Claim is made under statute, in tort (for negligence or otherwise), under an indemnity, in equity or otherwise; and

B. do not exclude or limit the application of any provision of any statute (including the

Competition and Consumer Act 2010(Cth)) to the extent that doing so would:

i. contravene that statute; or
ii. cause any part of this clause 16 to be void.

16.2 Exclusion of warranties

A. To the maximum extent permitted by law, CyTrack excludes all express and (to the maximum extent permitted by law) implied conditions, warranties and liabilities, except for any liability or implied condition or warranty the exclusion or limitation of which would contravene any applicable statute or cause any part of this clause to be void (Non-excludable
Condition).

B. To the maximum extent permitted by law, CyTrack’s liability to the Customer for breach of any Non-excludable Condition is limited, at CyTrack’s option, to:

i. in the case of goods, repair or replacement of the goods or payment of the cost of the repair or replacement; and
ii. in the case of services, resupply of the services.

16.3 Exclusion of liability

To the maximum extent permitted by law, but despite any other provision of the Agreement, each party excludes all liability for any indirect, consequential or special loss, damage, cost or expense or other Claims for consequential compensation, incurred by or awarded against the other party under or in any way connected with the Agreement or the provision of the Services.

16.4 Liability cap

A. Subject to clause 16.4B, without limiting clause 16.3, and to the maximum extent permitted by law, each party’s total aggregate liability under or in connection with the Agreement (whether in contract, tort (including negligence) or any other theory of liability) shall not exceed in aggregate, the greater of:
i. two (2) times the amount of Fees paid or payable by the Customer in the 12 month period immediately prior to the date of the event giving rise to the relevant Claim; or
ii. $5,000.
B. The liability limitations in clause 16.4A do not apply to limit a party’s liability:
i. for any personal injury, death or personal injury caused or contributed to by that party or its Personnel in connection with this Agreement, including under the indemnity given by the party in clause 17(E);
ii. under the indemnity given by Customer in favour of CyTrack in clause 17(C);
iii. under the indemnity given by CyTrack in favour of Customer in clause 17(F);
iv. for any breach of that party’s privacy, confidentiality and security obligations under this Agreement;
v. for any fraud or fraudulent misconduct by that party or its Personnel; and
vi. for repudiation of the Agreement.

16.5 Customer acknowledgement of exclusion from the Telecommunications Consumer Protections Code 2012

By executing the Agreement, the Customer unconditionally acknowledges it has had a genuine and reasonable opportunity to negotiate the terms of the Agreement with CyTrack. Consequently, the Telecommunications Consumer Protections Code 2012 does not apply to the Agreement.

17. Indemnity

Subject to clause 16.4, each party (the indemnifying party) indemnifies the other party and its Personnel (those indemnified), and will hold those indemnified harmless, against all Damages suffered or incurred by any or all of those indemnified arising directly out of or in connection with:

A. a breach of the Agreement by the indemnifying party;

B. where the indemnifying party is the Customer, the use of the Customer’s Primary Account by the Customer or by any third party authorised by the Customer to use the Customer’s Primary Account;

C. where the indemnifying party is the Customer, any Claim by a third party against those indemnified that the content of any Messages transmitted by Customer via the CyTrack Systems infringes third party rights including Intellectual Property Rights or breaches any Law (including any Damages sustained or incurred by those indemnified in connection with complaints or Claims relating to the content of any such Messages);

D. any negligent or fraudulent act, error or omission by the indemnifying party or the indemnifying party’s Personnel;

E. loss of or damage to any property or injury to or death of any person caused by any act or omission by the indemnifying party or the indemnifying party’s Personnel; or

F. any Claim by a third party (including any Supplier or Message Recipient) against those indemnified that is caused or contributed to by any breach of this Agreement by the indemnifying party or any negligence by the indemnifying party or its Personnel relating to the Services or the subject matter of the Agreement, including where the indemnifying party is SMS Global, any Claim by a third party that the Customer’s use of the Services, or any materials provided by on behalf of CyTrack in connection with this Agreement, infringes third party rights including any Intellectual Property Rights or breaches any Law.

18. Termination

18.1 Termination with effect from expiry of the Initial Term

Either party may terminate the Agreement for convenience with effect from the expiry of the Initial Term by giving the other party notice prior to the expiry of the Initial Term Expiry Date.

18.2 Termination with effect from expiry of the Extended Term

Either party may terminate the Agreement for convenience with effect from the expiry of the Extended Term by giving the other party notice not less than 30 days’ prior to the expiry of the Extended Term.

18.3 Termination following expiry of the Extended Term

Either party may terminate the Agreement for convenience after the expiry of the Extended Term by giving the other party 30 days’ written notice.

18.4 Termination by CyTrack due to Supplier termination

CyTrack may terminate the Agreement immediately by giving notice to the Customer if any of CyTrack’s agreements with relevant Suppliers terminate or expire.

18.5 Termination by CyTrack for cause

CyTrack may terminate the Agreement immediately by giving notice to the Customer:

A. if the Customer commits any breach of the Agreement that is:

i. capable of remedy and the Customer fails to remedy the breach within 30 days after receiving notice requiring it to do so; or
ii. incapable of remedy;

B. if the Customer ceases to be able to pay the Customer’s debts as they become due;

C. if any step is taken by a mortgagee to take possession or dispose of the whole or part of the Customer’s assets, operations or business;

D. if any step is taken to enter into any arrangement between the Customer and the Customer’s creditors;

E. if any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a provisional liquidator, a liquidator, an administrator or other like person of the whole or part of the Customer’s assets, operations or business;

F. if the Customer disposes of the whole or part of the Customer’s assets, operations or business other than in the ordinary course of business;

G. if the Customer ceases to carry on business; or

H. where the Customer is a partnership, any step is taken to dissolve that partnership.

18.6 Consequences of termination

A. If your contract ends during the initial term, you will be required to pay us an early Termination Fee (other than if the contract was terminated pursuant to clauses 18.1, 18.2, 18.3 or 18.4). You acknowledge and agree that any liability to pay us as an early Termination Fee does not prejudice any other right we may have to claim damages as a result of the termination. The Early termination fee is calculated on a pro-rata basis where the minimum monthly spend will be multiplied by the number of remaining months of the initial term. This is also subject to clause 2.2 and 2.3.

B. On expiry or termination of the Agreement for any reason:
i. the Customer must:
a. promptly return all materials, information and documentation provided to the Customer or the Child Account Nominees by CyTrack in connection with the Agreement;

b. refrain from accessing or using any CyTrack Systems (including the Web Tools), and ensure that none of the Customer’s Personnel, the Child Account Holders or the Child Account Nominees’ Personnel access or use any of the CyTrack Systems; and

ii. CyTrack may:

a. cancel the Customer’s Primary Account and all its Child Accounts;

b. terminate all means or modes of access and use of the CyTrack Systems by the Customer, the Child Account Nominee and their Personnel; and
c. be regarded as discharged from any further obligations under the Agreement.

C. Despite anything else in the Agreement, the Customer acknowledges and agrees that CyTrack may keep a reasonable number of copies of:

i. the Customer’s and the Child Account Nominees’ Confidential Information disclosed to CyTrack under the Agreement; and
ii. the Customer Data,

for record-keeping and quality control purposes, to allow CyTrack to comply with all applicable laws, and to otherwise fulfill the terms of CyTrack’s agreements with its Suppliers.

18.7 Accrued rights and remedies

Termination of the Agreement will not prejudice any right of action or remedy which may have accrued to either party prior to such termination.

19. Complaint Handling

A party must not start legal proceedings (except proceedings seeking interlocutory relief) until that party has fully complied with the Complaints Handling Policy.

20. Notices and other communications

20.1 Service of notices

Notices under the Agreement must be:

A. in writing, in English and signed by a person duly authorised by the sender; and
B. hand delivered or sent by prepaid post, facsimile or email to the recipient’s address for notices specified in the SOW, as varied by any notice given by the recipient to the sender.

20.2 Effective on receipt

A notice given in accordance with clause 20.1 is taken to be received:

A. if hand delivered, on delivery;
B. if sent by email, two hours after the time that the email is sent (unless the sender receives notification during that time that delivery of the email was not successful);
C. if sent by prepaid post, on the second Business Day after the date of posting (or on the seventh Business Day after the date of posting if posted to or from a place outside Australia); or
D. if sent by facsimile, when the sender’s facsimile system generates a message confirming successful transmission of the entire notice unless, within eight Business Hours after the transmission, the recipient informs the sender that it has not received the entire notice, but if the delivery, receipt or transmission is not on a Business Day or is after 5.00pm on a Business Day, the notice is taken to be received at 9.00am on the next Business Day.

21. Miscellaneous

21.1 Alterations

This agreement may be varied only in writing signed by each party.

21.2 Approvals and consents

Except where expressly states otherwise, a party may, in its discretion, give conditionally or unconditionally or withhold any approval or consent under the Agreement.

21.3 Assignment by Customer

The Customer may only assign the Customer’s rights under the Agreement with the prior written consent of CyTrack.

21.4 Assignment or novation by CyTrack

A. CyTrack may assign or novate any of its rights and obligations under the Agreement to a Related Corporation of good standing by providing the Customer with notice of such assignment or novation in accordance with clause 20.1. To the extent necessary to give effect to any such assignment or novation, the Customer irrevocably appoints CyTrack as its agent and authorised representative to execute any documentation (including a deed of novation) on its behalf.

B. Any other assignment or novation by CyTrack of its rights and obligations under the Agreement may occur with the prior written consent of the Customer.

21.5 Promotions and Giveaways

Where the Customer creates an Account or otherwise uses the Services in response to or in the course of a promotion, giveaway, special offer or other marketing campaign run by CyTrack (a Campaign), CyTrack reserves the right to vary this Agreement to the extent necessary to govern the Customer’s participation in the Campaign. For the avoidance of doubt, any terms and conditions stated on the relevant Campaign materials (or on the Website) shall be incorporated into, and to the extent of any inconsistency prevail over, the terms of this Agreement.

21.6 Force Majeure

Neither party is liable for any failure to perform or delay in performing its obligations under the Agreement if that failure or delay is due to anything beyond that party’s reasonable control. This clause does not apply to any obligation to pay money. The deadline for any obligation that is affected by the Force Majeure will be extended by a period equivalent to the period for which the Force Majeure has prevented that obligation being performed.

21.7 Entire Agreement

The Agreement constitutes the entire agreement between the parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing, which do not form part of, and may not be relied on by either party in construing, the Agreement.

21.8 Further Action

Each party must do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to the Agreement and any transaction contemplated by it.

21.9 Survival

Any indemnity or any obligation of confidence under the Agreement is independent and survives termination of the Agreement. Any other term by its nature intended to survive termination of the Agreement survives termination of the Agreement, including clauses 11, 12, 16, 16.5, 18.6 and this clause 21.9.

21.10 Severability

Each clause of the Agreement and each part of each clause must be read as a separate and severable provision. If any provision is found to be void or unenforceable, that provision may be severed and the remainder of the Agreement will continue in force.

21.11 Waiver

A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent

another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.

21.12 Relationship

Except where the Agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.

22. Governing law

The Agreement is governed by the laws of Victoria, Australia and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria, Australia.