General

Operative Provisions

Definitions and Interpretation

Definitions

Account means an account (either a Financial Subscriber account or Non-Financial Subscriber account) that provides the Subscriber with access to the Platform and the Services. The access and usage depends on whether the Subscriber is a Financial Subscriber or Non-Financial Subscriber.

Agreement means this Agreement and any amendments and annexures thereof;

API means Application Programming Interfaces;

Auction means an auction facilitated by the Provider or any associated related bodies corporate through the use of the Platform;

Auctions Live means a product of the Provider which is used to facilitate Auctions;

Bid Buy App means the mobile application provided by the Provider that allows users to remotely participate in live property auctions and manage offers. The Bid Buy App provides a secure platform for customers and supports both Auctions Live and Offers Live services.

Authorised Officer means a natural person who has express, implied or legislated authority to bind the Provider to this Agreement.

Business Day means any weekday, other than a bank or public holiday in Australia, and a public holiday in the jurisdiction of the Provider;

Business Hours means the hours of 8.30AM to 5.00PM AEST on a Business Day;

Charges means the amounts specified Schedule 3;

Component means a self contained unit of code representing a specific part of the webpage, such as a button, form, label or navigation bar, which includes its own structure, styling and functionality.

Confidential Information means all information, except to the extent that it is generally available to the public (other than due to a breach of this Agreement), of which the Subscriber becomes aware or generate in the course of, or in connection with this Agreement with the Provider or its Related Entities, of a commercial, operational, technical or financial type relating to any Subscriber, or potential Subscriber of the Provider or its Related Entities, including, without limitation, each of the following:

1. information which the Provider identifies as confidential;

2. information which a reasonable person in the Subscriber’s position should understand is confidential;

3. trade secrets and Intellectual Property;

4. agreements, arrangements or terms of trade with clients, customers, referrers, partners and suppliers or prospective clients, customers, referrers, partners or suppliers;

5. names, addresses (including email addresses), phone numbers and all other contact information and personal information of all database contacts of the Provider;

6. contractual information;

7. technical information;

8. marketing plans and marketing and sales techniques;

9. marketing agreements, costs and pricelists;

10. business plans and forecasts;

11. lead pipeline of the Provider or its Related Entities;

12. business systems and procedures;

13. financial records, reports and accounts;

14. business proposals;

15. manuals;

16. operational materials;

17. details concerning the Provider’s business affairs;

18. customer/client lists;

19. customer/client details and records including, but not limited to, all personal and financial information revealed by customers/clients;

20. employee information;

21. any passwords, pin codes or login details;

Commencement Date means the date at Item 7of Schedule 1

Duplicated with Sold Price means a listing that the Subscriber has duplicated and transferred the sold price from the original listing;

Duplicated with Sold Price and Status means a listing that the Subscriber has duplicated and transferred both the sold price and status from the original listing;

Expansion Pack means the expansion packs provided by the Provider as part of the Services including, E-Sign Option, Clips, Reggie The Virtual Assistant and API Hub;

Financial Subscriber means any Subscriber responsible for the Charges associated with this Agreement.

Force Majeure Event means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus

GST means:

1. In Australia, the Goods and Services Tax, as defined in the A New Tax System (Goods and Services Tax) Act 1999 as amended; and
2. In New Zealand, the Goods and Services Tax Act 1985.

Intellectual Property means copyrights, patents, trade marks, service marks, trade names, designs and similar industrial, commercial and intellectual property (whether registered or not and whether protected by statute or not and including formulae, source codes, software and know-how).

Maintenance Service means the general maintenance of the Service, and the application of updates and upgrades.

Non-Financial Subscriber means any subscriber who has been provided with a limited access account by a Financial Subscriber.

Offers Live means the online platform provided by the Provider that facilitates the management of property offers in a transparent and structured environment. The Platform enables buyers to submit offers, and vendors or agents to assess them based on multiple factors beyond just price. Offers Live supports private treaty, expressions of interest (EOI), and other property sale methods.

Offer Type means the type of sales campaign, including private treaty, expressions of interest, deadline/timed sales, closed tenders or offers above. Listings will be charged upon assigning an Offer Type.

Our/Us/We means the Provider;

Personal Information has the same meaning as in the Privacy Act (Cth) 1988 being an Act in Australia;

Platform means the SaaS known as Auctions Live, Offers Live, Broadcaster App and Mobile Console App;

Prescribed Auction Conditions means the rules and regulations applicable to auctions in accordance with the Relevant Jurisdiction;

Property means real property.

Provider means RE Software Pty Limited;

Purchaser means a buyer of Property;

Registered Bidder means a person who has registered to bid at an Auction;

Related Entity has the definition provided under section 9 of the Corporation Act 2001 (Cth), being an Act in Australia.

Relevant Jurisdiction means the jurisdiction of the Country, State, Territory or Region where the Property is located;

SaaS means Software as a Service;

Services means the Bid Buy App and the software for the Auctions Live platform, Offers Live platform, Mobile Console App and Broadcaster App as set out in Schedule 2;

Service Level Agreement means the Service Level Agreement in Schedule 3.

Software means the instructions, programs or source codes necessary to operate the Platform.

Subscriber Listings means all listings and materials uploaded to the Platform, or stored on the Platform by the Subscriber;

Subscriber Data means all data, works and materials that is uploaded to the Platform, or stored on the Platform by the Subscriber; transmitted by the Platform at the instigation of the Subscriber; supplied by the Subscriber to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Service by the Subscriber but excluding analytics data relating to the use of the Platform and server log files.

User means any individual or entity that accesses, views, interacts with, or otherwise uses the Bid Buy App in any manner, including (without limitation) submitting an offer, registering, or participating as an approved bidder in an auction.

Interpretation

In this Agreement unless the context otherwise requires:

1. a reference to a person includes any other entity recognised by law and vice versa;

2. the singular includes the plural and vice versa;

3. words importing one gender include every gender;

4. any reference to any of the parties by their defined terms includes that party’s executors, administrators or permitted assigns or, being a company, its successors or permitted assigns;

5. an agreement, representation, or warranty on the part of two or more persons binds them jointly and severally;

6. an agreement, representation, or warranty in favour of two or more persons is for the benefit of them jointly and severally;

7. clause headings are for reference purposes only;

8. a reference to an Item is a reference to an Item in Schedule 1 to this Agreement;

9. a reference to an Annexure or Schedule is a reference to the corresponding Annexure or Schedule to this Agreement; and

10. a reference to a statute, ordinance, code, or other law includes regulations and other instructions under it and consolidations, amendments, re-enactments, or replacements of it.

Term

1. This Agreement commences on the Commencement Date and automatically renews on the anniversary of this Agreement, until such time as the Agreement is terminated in accordance with clause 12.

SaaS Services and Support

1. Subject to the terms of this Agreement, the Provider will use commercially reasonable efforts to provide the Subscriber the Services in Schedule 2. The Provider shall provide the Services pursuant to the Service Level Agreement attached in Schedule 3.

2. Subject to this Agreement, the Provider will provide the Subscriber with reasonable technical support services in accordance with the Provider’s standard practice.

API

1. Subject to the terms of this Agreement, the Provider will provide the Subscriber with access to its APIs. The APIs provided relate to the expansion packs included in Schedule 1. The Subscriber acknowledges that a fee applies and is outlined in Schedule 1.

2. The Subscriber acknowledges and agrees that the APIs may be subject to updates, amendments and legal notices, which may be displayed on the Provider’s website form time to time.

3. Subject to the terms of this Agreement, the Provider grants the Subscriber a non-exclusive, worldwide, non-transferable, limited licence to use the Provider’s APIs and documentation only as necessary to develop, test and support an integration of the Subscriber’s application.

4. The Subscriber may not sell, rent, lease, sublicence or redistribute access to any of the Provider’s APIs.

5. The Provider reserves the right to withdraw or change its APIs at any time. The Provider will use reasonable endeavours to give the Subscriber advance notice of any material changes that the Provider makes to its products and services.

6. If the Provider does make material changes, the Subscriber may terminate this Agreement by advising the client within 14 days of the change and pursuant to the termination notice periods specified in Clause 12 of this Agreement. Failure to terminate within 14 days of the change constitutes acceptance of the change.

7. The Subscriber acknowledges and agrees that it will not:

1. Access the Provider’s APIs in violation of any law or regulation;

2. Access the Provider’s APIs in any manner that:

1. Compromises, breaks or circumvents any of the Provider’s technical processes or security measures;

2. Poses a security vulnerability to users of the APIs; or

3. Tests the vulnerability of the Provider’s systems or networks.

3. Access the Provider’s APIs in order to replicate or compete with the Provider; or

4. Attempt to reverse engineer or otherwise derive source code, trade secrets or know-how of the Provider’s APIs; or

5. Attempt to use the Provider’s APIs in a manner that exceeds rate limits or constitutes excessive or abusive usage.

8. The Provider has the right to suspend access to the APIs if the Provider believes there is a violation or breach of this Agreement.

9. The Provider reserves a right to audit the Subscriber’s application to ensure that it does not violate the Provider’s terms and policies.

10. The Subscriber may use or refer to the information produced and in the APIs only in the course of providing ordinary real estate or other services to the Subscriber’s customers, clients, contractors or related bodies corporate, provided that:

1. The Subscriber complies with applicable privacy legislation, and notifies the Provider of any privacy complaints made in connection with the information and comply with any reasonable directions from the Provider in relation to any privacy complaint;

2. The Subscriber does not alter the format, meaning or substance of any information supplied; and

3. The Subscriber does not change or delete any source attribution or copyright notice; and

4. The Subscriber specifically references the source of the APIs being the “RE Software API Hub”, in all or any marketing, advertising or other material.

11. The Provider will not be liable to the Subscriber for any indirect, incidental, special and/or consequential losses or damages (including loss of profits, goodwill, date or opportunity). For products or services supplied or offered by the Provider, their liability to the Subscriber will be limited to the amount(s) paid by the Subscriber in respect of the APIs.

12. The Subscriber’s use of the APIs is at its sole risk. To the extent permitted by law, the Providers exclude all conditions and warranties relating to the APIs. In particular, the Provider does not make any representations or warranties that the APIs will be error-free or as to the accuracy, reliability or suitability of any information accessible via the APIs. To the extent that the Provider’s liability for breach of any implied warranty or condition cannot be excluded by law, the Provider’s liability will be limited to (in the case of services supplied or offered by the Provider), the re-supply of those services or the payment of the cost of having those services re-supplied.

13. The Subscriber agrees to forever hold and indemnify the Provider against any expenses, costs, loss or damage that the Provider may suffer or incur as a result of or in connection with the Subscriber’s use of the APIs or the Subscriber’s conduct in connection with this Agreement, including any breach

14. Except as expressly provided for, the APIs and all related components and information are provided by the Provider on an ‘as is’ basis and ‘as available basis without any warranties of any kind, and the Provider expressly disclaims any and all warranties or merchantability, title, fitness for a particular purpose and non- infringement.

15. The Subscriber warrants that the Provider does not warrant that the APIs will be uninterrupted, timely, secure or error-free.

Conduct on the Platform

Conduct Generally

1. The Subscriber warrants that the content in relation to any listing published, uploaded, transmitted, posted or distributed on the Platform will always be accurate, correct, true and up to date.

2. The Subscriber warrants that it will regularly review the listings and whenever possible update the listing to ensure that the content remains accurate, complete and up to date.

3. The Subscriber warrants that it will not use the Platform or the Services for any illegal, unauthorised or unlawful purpose.

4. The Subscriber acknowledges and agrees that the Provider must approve listings uploaded onto the Platform, and may, at its sole discretion, refuse listings on the Platform.

Auctions

1. The Subscriber is responsible for:

1. Any listing displayed on the Platform;

2. conducting Auctions on the Platform; and

3. ensuring that the Auction is conducted with the legislation in the Relevant Jurisdiction.

2. The Subscriber warrants that the Subscriber and/or the Auctioneer is responsible for displaying the Prescribed Auction Conditions, wherever required, in the Relevant Jurisdiction. The Provider makes no representation as to the accuracy of those terms, or prescribed auction conditions, and the responsibility of same lies wholly with the Auctioneer or the Subscriber.

Offers

1. All listings will remain active on the Platform for the duration set by the Subscriber (the “Listing Expiry Date”). The Platform will automatically provide alerts to the Subscriber during the listing period as the Listing Expiry Date approaches.

2. The Subscriber is responsible for conducting sales on the Platform (including any private treaty sales, expressions of interest, deadline / timed sales, closed tenders and offers above sales) and for any Listing displayed on the Platform the Subscriber must ensure that the sales campaign is conducted with the legislation in the relevant jurisdiction.

3. The Subscriber acknowledges and agrees that it is responsible for providing the vendor with all offers in relation to the listing, including all offers made by prospective purchasers not uploaded on the Platform.

4. The Subscriber acknowledges and agrees that it must disclose to the vendor and the User that all reports provided to the vendor have been generated by AI.

Restrictions and Responsibilities

1. Except as otherwise permitted by the Copyright Act 1968 (Cth), being an Act in Australia, or agreed to in writing by the Provider, the Subscriber must not:

1. Modify the Software or merge any aspect of the Software with another programme, record, reverse engineer, copy, duplicate, reproduce, create derivative works from, frame, download, display, transmit or distribute any of the Software, the source code of the Software or any documents, manuals or setup instructions provided with the Software or in relation to the Services;

2. Licence, sell, rent, lease, transfer, assign or otherwise commercially exploit the Software or the Services;

3. Engage in unauthorised access to or use of data, services, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures;

4. Access, store, distribute or transmit:

1. Viruses, worm, trojan or other malicious code that corrupts, degrades or disrupts the operation of the Software;

2. material that is unlawful, unethical, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive or a contravention of the rights of any third party;

3. material that facilitates illegal activity; or

4. material that abuses or causes damage or injury to any person or property;

5. provide Software login details or passwords, or otherwise provide access to the Software, to any unauthorised third party and you will take all reasonable steps to prevent unauthorised access to, or use of, the Software;

6. share any features of the Software that are not publicly available with any unauthorised third party;

7. engage in any conduct on the Software that is in breach of this Agreement (or any agreements mentioned therein); and

8. encumber or allow the creation of any mortgage, charge, lien or other security interest in respect of the Software.

9. Assert ownership of all or any part of the works or other subject-matter accessed through the Provider’s APIs.
   Any breach of this clause constitutes a breach of this Agreement and we may, at our absolute discretion, terminate or suspend your access to, and/or use of, the Software of the Services, and/or take further actions against you for breach of this Agreement.

2. The Subscriber represents, covenants and warrants that the Subscriber will use the Services only in compliance with the Providers Acceptable Use Policy and all applicable laws and regulations.

3. The Subscriber hereby agrees to indemnify and hold harmless the Provider against any damages, losses, liabilities, settlements and expenses (including without limitation costs and legal fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from the Subscriber’s use of Services. Although the Provider has no obligation to monitor the Subscriber’s use of the Services, the Provider may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

4. The Subscriber shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, Equipment). The Subscriber shall also be responsible for maintaining the security of the Equipment, the Subscriber account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Subscriber account or the Equipment with or without the Subscriber’s knowledge or consent.

5. The Financial Subscriber acknowledges and agrees that it shall be responsible for the conduct of its Non- Financial Subscribers and warrants that the Non-Financial Subscriber will abide by the Acceptable Use Policy.

6. The Financial Subscriber hereby agrees to indemnify and hold harmless the Provider against any damages, losses, liabilities, settlements and expenses (including without limitation costs and legal fees) in connection with any claim or action that arises from an alleged violation of the Non-Financial Subscriber’s use of Services once assigned by the Non-Financial Subscriber.

Confidentiality and Proprietary Rights

1. Each party (Receiving Party) understands that the other party (Disclosing Party) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (referred to as Proprietary Information of the Disclosing Party).

2. Proprietary Information of the Provider includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of the Provider includes non-public data provided by the Subscriber to the Provider to enable the provision of the Services.

3. The Receiving Party agrees:

1. to take reasonable precautions to protect such Proprietary Information, and

2. not to use (except in performance of the Services or as otherwise permitted in this Agreement) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after seven (7) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

4. The Subscriber and Provider shall own all rights, title and interest in and to the Subscriber Data and live stream recordings, as well as any data that is based on or derived from the Subscriber Data and provided to the Subscriber as part of the Services. The Provider shall own and retain all right, title and interest in and to (a) the Services, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all Intellectual Property related to any of the foregoing.

5. Notwithstanding anything to the contrary, the Provider shall have the right to collect and analyse data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Subscriber Data and data derived therefrom), and the Provider will be free (during and after the term) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Subscriber offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.

6. No rights or licenses are granted except as expressly set out in this Agreement.

Intellectual Property

1. Subject to clauses 7(a) and 7(b), the Provider grants the Subscriber, non- exclusive, non-transferable and revocable license to permit its authorised users to access and use the Software and the Services (including the Intellectual Property contained therein) throughout the Term.

2. All rights, title or interest in and to the Software and any information or technology that may be provided to, or accessed by, you in connection with your use of the Software or Services is owned, and will remain owned, by the Subscriber or its licensors (Provider IP). Using the Software or the Services does not transfer any ownership or rights, title or interest in and to the Provider IP.

3. All Intellectual Property discovered, developed or otherwise coming into existence as a result of, for the purposes of, or in connection with, the Software or the provision of any Services will automatically vest in, and are assigned to, the Provider, including any enhancements, improvements and modifications to the Provider IP (collectively, Developed IP).

4. The Subscriber must not represent to anyone or in any manner whatsoever that they are the proprietor of the Software and/or the Provider IP.

5. The Subscriber agrees that the Provider may refer to the Subscriber, their business name, publish their logo and/or trade mark and make reference to the Subscriber as a customer of the Provider in any communications or publications for the purposes of marketing or promoting the Provider's business.

Subscriber Data

1. The Subscriber hereby grants to the Provider a non-exclusive, non-transferable, licence to copy, reproduce, store, distribute, publish, export, adapt and translate the Subscriber Data strictly for the purposes of performing its obligations under this Agreement.

2. The Subscriber warrants to the Provider that the Subscriber Data when used by the Provider in accordance with this Agreement shall not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provision of any law, statute or regulation. This warranty extends only to the Subscriber Data that the Subscriber has created. The Provider shall not be liable for any infringement of Intellectual Property Rights or other legal rights of any person or any breach of any law, statute or regulation that may arise from any Subscriber Data provided by the Subscriber in accordance with this Agreement.

3. The Provider shall create a back-up copy of the Subscriber Data at least daily, and shall ensure that each such copy is sufficient to enable the Provider to restore the Service to the state they were in at the time the back- up. The Provider current back-up schedule is as follows:

1. Hourly backups with a retention of 2 days

2. Daily backups with a retention of 14 days

3. Weekly backups with a retention of 28 days

4. Monthly backups with a retention of 1 year

5. Yearly backups with a retention of 7 years.

Payment of Charges

Payment of Charges Generally

1. The Subscriber will pay the Provider the then applicable Charges as described in the Services and Pricing Schedule in Schedule 4 for the Services in accordance with this Agreement.

2. Any overdue and unpaid amounts are subject to an interest charge of 10% (per annum) on the overdue amount, calculated at a daily rate from the date the amount was due until the actual date of payment.

3. The Provider will issue an invoice in relation to the Service monthly and the Subscriber agrees to pay the Charges within the period of 14 days following the issue of an invoice.

4. Where applicable, any goods or services tax, charge, impost or duty payable in respect of this Agreement or the supply of any goods or services made under or in respect of this Agreement and any other taxes, duties or levies will be paid by the Subscriber at the then-prevailing rate.

Auctions

1. If the Subscriber’s use of the Services exceeds the Services outlined in the Services and Pricing Schedule or otherwise requires the payment of additional Charges (per the terms of this Agreement), the Subscriber shall be billed for such Services and the Subscriber agrees to pay the additional fees in the manner provided in this Agreement.

2. Financial Subscribers are responsible and liable for any Charges incurred by any Non-Financial Subscribers, in circumstances where the Financial Subscriber assigns a property listing on behalf of a Non-Financial Subscriber.

3. The Provider reserves the right to increase the Charges and any annual fee prior to the anniversary of the Commencement Date, and, upon thirty (30) days prior notice to the Subscriber (which may be sent by email) to a maximum 10% annually.

4. The Subscriber acknowledges and agrees that Charges will be incurred once an Auction type is assigned to a Listing regardless of whether the Service is utilised or the Listing is published.

5. The Provider will issue an invoice in relation to the Service monthly and the Subscriber agrees to pay the Charges within the period of 14 days following the issue of an invoice.

6. In addition to the interest payable in clause 10.1(b) above, the Provider also reserves the right to suspend the Service provided to the Subscriber and its Non-Financial Subscribers and customers, by providing 20 Business Days’ notice in writing to the Subscriber, until such time as the payment is made.

7. Where applicable, any goods or services tax, charge, impost or duty payable in respect of this Agreement or the supply of any goods or services made under or in respect of this Agreement and any other taxes, duties or levies will be paid by the Subscriber at the then-prevailing rate.

8. The Subscriber acknowledges and agrees that Charges are immediately incurred upon the creation of a Listing that is assigned an Auction type, regardless of the Listing’s subsequent status.

9. Where the Provider identifies a Duplicate Listing, the following Charges will apply:

1. A Duplicated with Sold Price Listing will incur a Charge equal to twenty-five percent (25%) of the scheduled Auction fee

2. A Duplicated with Sold Price and Status Listing will incur a Charge equal to twenty-five percent (25%) of the scheduled Auction fee; an

3. A Raw Duplicate Listing will incur a Charge equal to one hundred percent (100%) of the scheduled Auction fee.

10. The Subscriber may postpone an Auction Listing for a maximum period of one hundred and twenty (120) days from the date on which the Listing was first assigned as an Auction. In all cases, the Auction fee for that Listing remains fully payable and is not waived, refunded, or reduced by reason of the postponement. The Subscriber may reschedule the postponed Auction to take place within the same one hundred and twenty (120) day period, provided that only one (1) Auction fee will apply to the Listing.

11. The Subscriber acknowledges and agrees that where a Listing has been assigned an Auction type, the full scheduled Auction fee shall remain payable in circumstances where the property is subsequently sold prior to Auction or the Listing is withdrawn from sale, irrespective of whether the Auction Service is utilised.

12. For clarity, the Subscriber may only postpone an Auction in accordance with Clause 11 (Auction Postponement Rules and Charges Applicable). Where a Listing is sold or withdrawn instead of being postponed, the full scheduled Auction fee will remain payable.

Offers

1. Subscribers will be invoiced monthly in arrears, on the first day of the month, for all properties assigned an Offer Type for the previous month.

2. If the Subscriber’s use of the Services requires the payment of additional Charges (per the terms of this Agreement), the Subscriber shall be billed for such Services and the Subscriber agrees to pay the additional fees in the manner provided in this Agreement.

3. The Provider reserves the right to increase the applicable Charges per Offer Type and any annual fee prior to the anniversary of the Commencement Date, and, upon thirty (30) days’ prior notice to the Subscriber (which may be sent by email), to a maximum of ten percent (10%) annually.

4. The Subscriber acknowledges and agrees that Charges will be incurred once an Offer Type is assigned to a Listing regardless of whether the Service is utilised or the Listing is published. A Listing may be assigned a campaign length of ninety (90), one hundred and twenty (120), or one hundred and eighty (180) days, at the Subscriber’s discretion.

5. Charges become billable on the first day of the month following the date the Offer Type is assigned. The Subscriber may change the assigned campaign length at any time prior to the commencement of billing for that Listing.

6. A Listing may be renewed by the Subscriber at any time prior to its expiry, or within ninety (90) days following its expiry. Where a Listing is renewed after the expiry date, the Subscriber acknowledges that billing will include the period of inactivity between expiry and renewal, and the renewed campaign will be adjusted to account for days already elapsed. For example, if a ninety (90) day Listing is renewed on the ninety-fifth (95th) day after commencement, the renewal will apply for eighty-five (85) days only.

7. In addition to the interest payable in clause 10.1(b) above, the Provider also reserves the right to suspend the Service provided to the Subscriber and its Non-Financial Subscribers and customers, by providing twenty (20) Business Days’ notice in writing to the Subscriber, until such time as the payment is made.

8. The Subscriber may be offered a monthly subscription to utilise Offers Live. In that regard, the Subscriber will pay a monthly fee per office using the Service. The monthly subscription will include unlimited access to Offers Live only.

Auction Postponement Rules and Charges Applicable

1. To be eligible to postpone an auction, within 120 days of it being assigned, the Subscriber must request the postponement before the scheduled auction date and time, or before any call sign or bid is placed on the Listing.

2. If the Subscriber fails to postpone the listing pursuant to Clause 11(a) above before the scheduled auction date and time, or before any call sign or bid is placed on the listing, the Subscriber:

1. will be unable to change the date of the Auction;

2. the Listing will not be able to be reassigned to a new auction type.

3. The Subscriber will be liable for all additional applicable fees if the Subscriber fails to postpone the Auction pursuant to Clause 11(a) above.

4. In the event that the Subscriber fails to postpone the Listing pursuant to Clause 11(a) above, the Subscriber must duplicate the original listing and assign the new listing to a new auction type. The Subscriber acknowledges and agrees that additional charges will apply.

Term and Termination

1. Subject to earlier termination as provided below, this Agreement is for an initial term of one (1) year, and shall be automatically renewed annually (collectively, Term), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

2. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of non-payment), if the other party materially breaches any of the terms or conditions of this Agreement. The Subscriber will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, the Provider will make Subscriber Data available to the Subscriber in a form the Provider deems appropriate for a period of thirty (30) days, but thereafter the Provider may, but is not obligated to, delete stored Subscriber Data. If the Subscriber requires the Provider to provide Subscriber Data an administrative fee will be charged. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

Warranty and Disclaimer

1. The Provider shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimises errors and interruptions in the Services and shall provide the Services in a professional and proper manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by the Provider or by third-party providers, or because of other causes beyond the Provider’s reasonable control, but the Provider shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption. However, the Provider does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services.

2. While all due care has been taken, the Provider does not warrant that the operation of the Services will be uninterrupted or error free or that any third party components of the Services, will be accurate or error free or that the Services will be compatible with any application, program or software not specifically identified as compatible by the Provider.

3. To the maximum extent permitted by law, no further warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance or fitness for purpose of the Software provided hereunder is given or assumed by the Provider other than as required at law.

4. The Provider makes no representations, warranties or guarantees:

1. that content available on, or produced by or via, the Software is accurate, complete, reliable, current, error-free or suitable for any particular purpose; or

2. that the Software and/or the Services are or will be free from viruses, worm, trojan or other malicious code. The Subscriber is responsible for taking precautions in this respect.

5. The Provider’s obligation and the Subscriber’s exclusive remedy during the Term are limited, in the Provider’s absolute discretion, to:

1. the Provider, at its own expense, using all reasonable endeavours to rectify any non-conformance of the Services by repair (by way of a patch, workaround, correction or otherwise) within a reasonable period of time; or

2. a refund of the Fees paid if, in the Provider’s reasonable opinion, it is unable to rectify such non-conformance within a reasonable timescale or at an economic cost, whereupon this Agreement will terminate.

6. The Subscriber acknowledges and accepts that it is the Subscriber’s sole responsibility to ensure that:

1. the facilities and functions of the Services meet the Subscriber’s requirements;

2. the Services are appropriate for the specific circumstance of the Subscriber and are within the laws and regulations of the Subscriber’s jurisdiction.

3. The Subscriber and each person using the Service with the authority of the Subscriber complies with the Acceptable Use Policy;

4. All Auctions are conducted pursuant to the Relevant Jurisdiction and laws of each state, territory and Country and that Prescribed Auction Conditions are displayed (as required) by the Subscriber;

7. The Provider will not be liable for any failure of the Services to provide any function not described Agreement or any failure attributable to:

1. any modification to the Services other than by the Provider;

2. accident, abuse or misapplication of Services by the Provider;

3. use of the Services with other software or equipment without the Provider’s written consent;

4. use of other than the latest, unaltered current release of the Services;

5. a Force Majeure Event;

6. A fault or failure of the internet or any public telecommunications network; or

7. use other than in accordance with this Agreement.

8. If, upon investigation, a problem with the Services is determined not to be the Provider’s responsibility, the Provider may invoice the Subscriber immediately for all reasonable costs and expenses incurred by the Provider in the course of or in consequence of such investigation.

Maintenance and Support Service

1. The Provider shall provide the Maintenance Service to the Subscriber during the Term.

2. The Provider shall, except in the event of an emergency, give the Subscriber at least 10 Business Days’ prior written notice of any scheduled Maintenance Service that are likely to affect the availability of the Service or are likely to have a material negative impact upon the Service.

3. The Provider reserves the right to disable any Component for an indefinite period if it is found to interfere with the integrity of the Platform, provided that such interference does not impact the primary operation or usability of the Platform.

4. The Subscriber may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Service.

5. The Provider shall respond to all requests for Support Services made by the Subscriber in accordance with the Service Level Agreement in Schedule 3.

Indemnity

The Subscriber will at all times indemnify and hold harmless the Provider and its officers, employees and agents in respect of any third party claim for any injury, loss, damage or expense occasioned by or arising directly or arising directly or indirectly from:

1. a breach by the Subscriber of its obligations under this Agreement;

2. any wilful, unlawful or negligent act or omission of the Subscriber.

Limitation on Liability

1. The liability of the Provider under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise must not exceed the fees paid by the Subscriber to the Provider for the Services under this Agreement in the twelve (12) months prior to the act that gave rise to the liability, in each case, whether or not the Provider has been advised of the possibility of such damages.

2. Neither party is liable to the other party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill.

Dispute Resolution and Mediation

1. If a dispute arises out of or relates to the terms of this Agreement, neither Party may commence any legal proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).

2. A Party to this Agreement claiming a dispute (Dispute) has arisen under the terms of this Agreement, must give written notice to the other Party to the address in Item 9 of Schedule 1 detailing the nature of the Dispute, the desired outcome, and the action required to settle the Dispute (Dispute Notice).

3. On receipt of the Dispute Notice by the other Party, the Parties to this Agreement must within seven days of the Dispute Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree.

4. If for any reason whatsoever, 21 days after the date of the Dispute Notice, the Dispute has not been resolved the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by or his or her nominee and attend a mediation.

5. It is agreed that mediation will be held in New South Wales, Australia.

6. The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing, undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation.

7. All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the fullest extent possible, must be treated as "without prejudice" communications.

8. If thirty (30) days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.

9. In the event that the Dispute is not resolved at the conclusion of the mediation, either Party may institute legal proceedings concerning the subject matter of the Dispute thereafter.

General

1. Except as otherwise permitted by this Agreement, no variation to its terms will be effective unless in writing and signed by both the Provider and the Subscriber.

2. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

3. This Agreement is not assignable, transferable or sublicensable by the Subscriber except with the Provider’s prior written consent. The Subscriber may not transfer and assign any of its rights and obligations under this Agreement without consent.

4. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in writing signed by both parties, except as otherwise provided in this Agreement.

5. No agency, partnership, joint venture, or employment is created as a result of this Agreement and the Subscriber does not have any authority of any kind to bind the Provider in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and legal fees.

6. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognised overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.